UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

L.T. TUCKER,

Plaintiff,

v. Case Number: 09-CV-13245

Honorable John Corbett O’Meara

FNU BUSKIRK, FNU STONE, and

FNU B. HOLLAND,

Defendants,

__________________________________/

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION 

AND/OR MOTION FOR RELIEF FROM JUDGMENT

I.

This is a prisoner civil rights case under 42 U.S.C. § 1983. The Court denied Plaintiff’s

application to proceed without prepayment of fees and costs and dismissed his complaint without

prejudice pursuant to the “three strikes” provision of 28 U.S.C. § 1915(g). See Order filed

August 28, 2009. Pending before the Court is Plaintiff’s motion for reconsideration and/or for

relief from judgment. For the reasons that follow, the motion is DENIED.

II.

First, to the extent that Plaintiff seeks reconsideration of the Court’s decision, his motion

must be denied. A motion for reconsideration must be filed within ten days after entry of the

court’s judgment or order. See E.D.Mich. LR 7.1(g)(1). Plaintiff’s proof of service for his

motion is dated September 28, 2009–twenty-nine days after the Court’s judgment. His motion

for reconsideration is therefore untimely and may be denied on this ground.

Moreover, Plaintiff’s motion fails to satisfy the requirements for reconsideration. He has

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not shown a palpable defect by which the Court has been misled or show that a different

disposition must result from a correction thereof, as required by E.D.Mich. LR 7.1(g) (3).

Finally, even if the motion was considered to have been brought within a reasonable time

under Rule 60(b), Petitioner is not entitled to relief. Under Rule 60(b), a district court will grant

relief from a final judgment or order only upon a showing of one of the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been discovered in time to move

for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the judgment should have

prospective application; or (6) any other reason justifying relief from the

operation of the judgment.

Fed.R.Civ.P. 60(b).

Plaintiff has made no such showing. The Court properly dismissed the case without

prejudice because Plaintiff did not establish that he is under imminent danger of serious physical

injury so as to fall within the exception to the three strikes rule.

On reconsideration, the Court concludes that it will adhere to its decision in its Order.

Again, the Court finds that Plaintiff has not established that he is in imminent danger of serious

physical injury. He therefore is not entitled to invoke the imminent danger exception to the three

strikes rule. Plaintiff’s allegations of imminent danger of serious physical injury are entirely

speculative. See Swenson v. Pramstaller, 169 Fed. Appx. 449, 450-51 (6th Cir.2006). Plaintiff’s

allegations that Defendants denied him medical care are simply conclusory statements that are

unsupported by evidentiary material. See Chance v. Tennessee, 47 Fed. App’x 762, 763 (6th Cir.

2002). Finally, his allegations lack factual support because he is no longer incarcerated at the St.

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Louis Correctional Facility in St. Louis, Michigan, where the alleged incidents occurred. Rather,

he is currently incarcerated at the Oaks Correctional Facility in Manistee, Michigan. Plainly,

Plaintiff cannot allege that he is in imminent danger of serious physical injury at a facility where

he is no longer incarcerated. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999).

III.

For the reasons stated, the Court concludes that, pursuant to Rule 60(b), Plaintiff has not

demonstrated that the Court erred in its decision; Plaintiff has not alleged any facts which would

establish that he is in imminent danger of serious physical injury, and therefore his complaint

does not fit within the exception to the statutory mandate that prohibits him from proceeding in

forma pauperis in light of his prior frivolity dismissals. Mulazim v. Michigan Dep’t of Corrs.,

28 Fed.App’x 470, 472 (6th Cir. 2002). Accordingly, IT IS ORDERED that Plaintiff’s motion

for reconsideration is DENIED. (Dkt. # 7.)

SO ORDERED.

s/John Corbett O’Meara 

United States District Judge

Date: October 7, 2009

I hereby certify that a copy of the foregoing document was served upon the parties of

record on this date, October 7, 2009, using the ECF system and/or ordinary mail.

s/William Barkholz

Case Manager

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