1 28 U.S.C. § 1915(e)(2) provides, in pertinent part:

Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the

court determines that –

. . .

(B) the action or appeal –

. . .

(ii) fails to state a claim upon which relief may be granted . . . 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS J. EARLS,

Plaintiff,

v.

DAVE HERRINGTON,

Defendant.

/

Case Number: 5:09-CV-13570

HON. JOHN CORBETT O’MEARA

ORDER DENYING PETITIONER’S “MOTION FOR 

RECONSIDERATION – ALTER OR AMEND JUDGMENT”

Plaintiff Thomas J. Earls, a state prisoner incarcerated at the Ojibway Correctional

Facility in Marensico, Michigan, filed a pro se civil rights complaint pursuant to 42 U.S.C. §

1983. The Court dismissed the complaint, pursuant to 28 U.S.C. § 1915(e)(2),1 because Plaintiff

failed to state a claim upon which relief may be granted. 

In his complaint, Plaintiff alleged that defendant attorney Dave Herrington rendered

ineffective assistance in his representation of Plaintiff in a criminal trial. Plaintiff argued that

defendant Herrington was aware that the circuit court judge who presided over Plaintiff’s

criminal trial had an intimate relationship with the victim’s wife. Despite this alleged
2

relationship, defendant Herrington refused to file a recusal motion or place an objection on the

record. Plaintiff further argued that defendant Herrington, in collusion with the prosecutor and

judge, allowed known false testimony to stand uncorrected and otherwise failed to present an

effective defense by failing to present exculpatory evidence. 

The essential elements of a claim under 42 U.S.C. § 1983 are that the conduct

complained of: (1) was committed by a person acting under color of state law, and (2) deprived

plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United

States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). To be a “state actor,” a party’s actions

must be “‘fairly attributable to the state.’” Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.

1995), quoting Lugar v. Edmundson Oil Co., 457 U.S. 922, 937 (1982). The Court held that

Herrington was not acting under color of state law simply by virtue of being Plaintiff’s defense

attorney, see Polk County v. Dodson, 454 U.S. 312 (1981), (holding that attorneys representing

clients in criminal actions do not act under color of law for § 1983 purposes, even where such

attorneys are appointed by the government to represent the criminal defendant), and that

Plaintiff’s allegation that Herrington engaged in a conspiracy with state actors was not pled with

sufficient specificity to allege a claim upon which relief may be granted. Further, the Court held

that Plaintiff’s claim that his conviction is invalid because he received ineffective assistance of

counsel failed to state a claim upon which relief may be granted pursuant to Heck v. Humphrey,

512 U.S. 477, 486-87 (1994). The Court, therefore, dismissed the complaint.

Plaintiff seeks reconsideration of the Court’s Order under Local Rule 7.1(g)(3) and asks

the Court to alter or amend its judgment under Federal Rules of Civil Procedure 59. Motions

for reconsideration may be granted when the moving party shows (1) a “palpable defect,” (2) by
3

which the court and the parties were misled, and (3) the correction of which will result in a

different disposition of the case. E.D. Mich. L.R. 7.1(g)(3). A “palpable defect” is a “defect

which is obvious, clear, unmistakable, manifest or plain.” Olson v. The Home Depot, 321 F.

Supp. 2d 872, 874 (E.D. Mich. 2004). 

Petitioner has not demonstrated that a palpable defect occurred in this Court’s decision

dismissing the complaint. Rather, he simply disagrees with the Court’s decision. A motion

predicated on such an argument is an insufficient ground upon which to grant a motion for

reconsideration. L.R. 7.1(g)(3); see also, Meekison v. Ohio Department of Rehabilitation and

Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998). Therefore, reconsideration is denied. 

Petitioner also asks the Court to alter or amend the judgment, pursuant to Federal Rule of

Civil Procedure 59(e). Motions to alter or amend judgments, filed pursuant to Fed. R. Civ. P.

59(e), are “entrusted to the court’s sound discretion.” Keweenaw Bay Indian Community v.

United States, 940 F. Supp. 1139, 1140 (W.D. Mich. 1996) (citing Huff v. Metropolitan Life Ins.

Co., 675 F.2d 119, 122 (6th Cir. 1982)). Rule 59(e) motions are generally granted when one of

the following circumstances arises:

(1) because of an intervening change in the controlling law; (2) because evidence

not previously available has become available; or (3) necessity to correct a clear

error of law or prevent manifest injustice.

Nagle Industries, Inc. v . Ford Motor Co., 175 F.R.D. 251, 254 (E.D. Mich. 1997) (citing

Keweenaw Bay, 940 F. Supp. at 1141). “Such motions, however, are ‘not intended as a vehicle

to relitigate previously considered issues;’ ‘should not be utilized to submit evidence which

could have been previously submitted in the exercise of reasonable diligence’ and are not the

proper vehicle to attempt to obtain a reversal of a judgment ‘by offering the same arguments
4

previously presented.’” Id., (quoting Keweenaw Bay, 904 F. Supp. at 1141). 

None of the arguments set forth by Petitioner in support of his motion satisfy the

standards under which Rule 59(e) motions may be granted. Petitioner does not argue that an

intervening change in the law requires that the Court amend its judgment, nor does he establish

that the Court committed a clear error of law which must be remedied. Petitioner’s arguments

also do not satisfy the only remaining prong under which Rule 59(e) relief may be granted, that

evidence which was previously unavailable suddenly has become available. Thus, Petitioner has

failed to show entitlement to relief under Rule 59(e).

Accordingly, IT IS ORDERED that Petitioner’s “Motion for Reconsideration – Alter or

Amend Judgment” [dkt. # 6] is DENIED.

s/John Corbett O’Meara 

United States District Judge

Date: March 10, 2010

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

record on this date, March 10, 2010, using the ECF system and/or ordinary mail.

s/William Barkholz

Case Manager