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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEITH LEWIS-EL,

Plaintiff, Civil Action No. 2:08-CV-15060 

v. HONORABLE GEORGE CARAM STEEH

UNITED STATES DISTRICT COURT

BARBARA SIMPSON, et. al.,

Defendants,

_____________________________________/

OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION

AND DENYING PLAINTIFF’S MOTIONS TO CERTIFY THAT AN APPEAL

WOULD BE UNDERTAKEN IN GOOD FAITH

On December 16, 2008, this Court summarily dismissed plaintiff’s civil

rights action brought pursuant to 42 U.S.C. § 1983, in which plaintiff brought

several constitutional challenges to the changes in Michigan’s commutation laws

and procedures which make it more difficult to obtain a commutation from a nonparolable life sentence for first-degree murder. Before the Court is plaintiff’s

motions for leave to appeal in forma pauperis or in the alternative, his motion for

reconsideration. For the reasons stated below, the motions are DENIED.

U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for

reconsideration. However, a motion for reconsideration which presents the same

issues already ruled upon by the court, either expressly or by reasonable

implication, will not be granted. Ford Motor Co. v. Greatdomains.com, Inc., 177 F.

Supp. 2d 628, 632 (E.D. Mich. 2001). A motion for reconsideration should be

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granted if the movant demonstrates a palpable defect by which the court and the

parties have been misled and show that correcting the defect will lead to a

different disposition of the case. See DirecTV, Inc. v. Karpinsky, 274 F. Supp. 2d

918, 921 (E.D. Mich. 2003).

Plaintiff is currently serving a sentence of life imprisonment without parole

for first-degree murder. Plaintiff claims that when he was initially incarcerated in

1983, he was screened for possible commutation of his sentence based on the

Michigan Department of Corrections’ Policy Directive [PD-DWA] 45.12, which

established a commutations guidelines range which scored various factors for

determining a prisoner’s eligibility for the commutation of his non-parolable life

sentence. PD-DWA-45-12 was rescinded by a new parole board on January 24,

1992. Plaintiff claimed that the retroactive application of the changes in

Michigan’s commutations laws and procedures violates the Ex Post Facto Clause

of the United States Constitution. Plaintiff based his claim,in part, on the case of

Foster-Bey v. Rubitschun, U.S.D.C. No. 05-CV-71318, a class action in which

Judge Marianne O. Battani of this district ruled that changes in Michigan’s parole

laws and procedures regarding the determination for parole eligibility for prisoners

serving parolable life sentences violated the Ex Post Facto Clause of the United

States Constitution. 

In his motion for reconsideration, plaintiff claims that this Court erred when

it refused to discuss his Ex Post Facto claim. Contrary to plaintiff’s assertion, this

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Court spent four pages of the opinion and order of summary dismissal discussing

plaintiff’s Ex Post Facto claim. See Lewis-El v. Simpson, et. al., Slip. Op. 08-CV15060, * 8-11. This portion of plaintiff’s motion for reconsideration is without

merit.

Plaintiff further contends that his complaint is not subject to summary

dismissal, in light of Judge Battani’s holding in the Foster-Bey case. 

This Court was aware of the Foster-Bey decision at the time of the opinion

and order of summary dismissal, but believed that the issue of commutation for

prisoners serving non-parolable life sentences for first-degree murder is

substantially different than for prisoners seeking parole on a parolable life

sentence. This Court noted that “even if a change in parole procedures might

conceivably violate the Ex Post Facto Clause, retroactive changes in policies

regarding the commutation of non-parolable life sentences does not violate the

Ex Post Facto Clause.” See Lewis-El v. Simpson, et. al., Slip. Op. 08-CV-15060,

* 10-11 (citing 

Snodgrass v. Robinson, 512 F. 3d 999, 1002 (8th Cir. 2008)). “This is because

most parole procedures ‘are distinct from the highly personal, policy oriented, and

legislatively unchecked authority’ of Michigan’s governor to grant sentence

commutations.” Id (quoting Snodgrass, 512 F. 3d at 1002). “‘The unpredictability

of a wholly discretionary grant of commutation’ in Michigan precludes plaintiff

from demonstrating that any changes in M.D.O.C. policy regarding commutations

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raise a ‘significant risk’ that he will be denied a commutation he otherwise would

have received. As such, plaintiff cannot demonstrate there is a significant risk his

punishment will be longer than it would have been when PD-DWA-45.12 was in

place. Accordingly, he cannot make out an ex post facto claim.” Id. (quoting

Snodgrass, 512 F. 3d at 1002-03). This Court further noted that Ex Post Facto

challenges to the changes in Michigan’s commutation laws for non-parolable life

sentences had previously been rejected. Id. (citing Vertin v. Gabry, 70 F.3d 116

(Table), 1995 WL 613692 (6th Cir. October 18, 2005)).

Plaintiff’s motion for reconsideration will therefore be denied, because he is

merely presenting issues which were already ruled upon by this Court, either

expressly or by reasonable implication, when the Court summarily dismissed his

civil rights complaint for failing to state a claim upon which relief can be granted. 

See Hence v. Smith, 49 F. Supp. 2d 549, 553 (E.D. Mich. 1999). 

Plaintiff has also filed two motions for leave to appeal in forma pauperis. 

This Court declines to certify that any appeal of the Court’s opinion and

order would be undertaken in good faith. 28 U.S.C. § 1915(a)(3) indicates that an

appeal may not be taken in forma pauperis if the trial court certifies in writing that

is not taken in good faith. A federal court may refuse to certify an appeal for in

forma pauperis status if it is not taken in good faith. Harkins v. Roberts, 935 F.

Supp. 871, 873 (S.D. Miss. 1996). 

In determining whether an appeal under the in forma pauperis statute is

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taken in good faith, the good faith standard is an objective one. Nabkey v.

Gibson, 923 F. Supp. 117, 122 (W.D. Mich. 1990)(quoting Coppedge v. United

States, 369 U.S. 438, 445 (1962)). The U.S. Supreme Court has interpreted

good faith as stated in 28 U.S.C. § 1915 as simply meaning that the issue being

appealed is not frivolous. Davis v. Michigan Department of Corrections, 746 F.

Supp. 662, 667 (E.D. Mich. 1990); Coppedge, 369 U.S. at 445. Where a

plaintiff’s complaint fails to even remotely approach an actionable claim under §

1983, an appeal from the decision may not be taken in forma pauperis because it

would be frivolous and would not be undertaken in good faith. Davis, 746 F.

Supp. at 667. 

In this case, for reasons stated in greater detail in the opinion and order of

summary dismissal, this Court dismissed Plaintiff’s complaint pursuant to 28

U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915(A). Because plaintiff’s complaint

lacked any arguable basis in the law, this Court certifies that any appeal by the

plaintiff would be frivolous and not undertaken in good faith. See Goodell v.

Anthony, 157 F. Supp. 2d 796, 802 (E.D. Mich. 2001). Stated differently, it would

be inconsistent for this Court to determine that plaintiff’s complaint was too

frivolous or meritless to be served upon these defendants, yet has sufficient merit

to support a determination that any appeal from the Court’s order of dismissal

would be undertaken in good faith so as to permit such an appeal. See Anderson

v. Sundquist, 1 F. Supp. 2d 828, 835 (W.D. Tenn. 1998)(citations omitted).

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ORDER

IT IS HEREBY ORDERED that the Motion for Leave to Appeal in forma

pauperis in the U. S. Court of Appeals for the Sixth Circuit, Alternately Motion for

Rehearing or Reconsideration [Dkt. # 6] and the Motion for Leave to Appeal In

Forma Pauperis [Dkt. # 7] are DENIED.

IT IS FURTHER ORDERED AND CERTIFIED by the Court that any appeal

taken by Plaintiff would not be done in good faith.

Dated: January 21, 2009

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

January 21, 2009, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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