Witzke v. Hiller
Decision Date | 18 August 1997 |
Docket Number | Civil Action No. 96-40284. |
Citation | 972 F.Supp. 426 |
Parties | Scott Andrew WITZKE, Plaintiff, v. Steve HILLER, et al., Defendant. |
Court | U.S. District Court — Eastern District of Michigan |
Scott Andrew Witzke, Bradford, PA, pro se.
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
Before the court is plaintiff, Scott Andrew Witzke's ("Witzke"), motion for reconsideration of this court's May 20, 1997 sua sponte order dismissing plaintiff's complaint. See Witzke v. Hiller et al., 966 F.Supp. 538 (E.D.Mich.1997). In that order, this court applied the "three strikes" provision of § 1915(g) of the Prisoner Litigation Reform Act of 1995 ("PLRA") to the instant 42 U.S.C. § 1983 plaintiff and held that his in forma pauperis ("IFP") complaint mandated dismissal.
Witzke initially filed the instant motion for reconsideration on June 3, 1997 challenging the cases upon which this court relied in finding that Witzke had "struck out," i.e. the civil actions which this court deemed were frivolous for purposes of § 1915(g), as well as the constitutionality of § 1915(g). Thereafter, on June 5, 1997, this court ordered plaintiff to list all prior civil actions or appeals filed in federal court while being incarcerated.1 On July 22, 1997, Witzke filed an amended reply to this court's June 5, 1997 order and an amended motion for reconsideration.2 In that filing, Witzke acknowledges "that he has filed, while detained or incarcerated, at least three civil actions or appeals * which have been dismissed for failure to state a claim upon which relief could be granted and/or for being `frivolous' *...." (footnotes omitted). Accordingly, Witzke concedes that he is "subject to the `three strikes' provision of § 1915(g)." Witzke, however, in his amended motion for reconsideration, renews his constitutional challenge to § 1915(g).
The Local Rules for the Eastern District of Michigan state that in a motion for reconsideration "the movant shall not only demonstrate a palpable defect by which the court and the parties have been misled but also show that a different disposition of the case must result from correction thereof." L.R. 7.1(h)(3) (E.D.Mich. Jan. 1, 1992). A "palpable defect" is a defect that is obvious, clear, unmistakable, manifest or plain. Webster's New World Dictionary 974 (3rd Ed. 1988). The Local Rules also provide that any motion for reconsideration which merely presents the same issues relied upon by the court, either expressly or by reasonable implication, shall be denied. L.R. 7.1(h)(3) (E.D.Mich. Jan. 1, 1992).
Witzke, however, fails to meet his burden under L.R. 7.1(h)(3). Witzke primarily relies on Lyon v. Del Vande Krol, 940 F.Supp. 1433 (S.D.Iowa 1996), an Iowa case wherein the court held that § 1915(g) violated the equal protection clause of the Fifth Amendment. Id. at 1436. That case is apparently on appeal before the Eighth Circuit3 and, in any event, is of course not binding on this court.4
However, the circuit courts that have either expressly, or by implication, addressed the constitutionality of § 1915(g) have upheld its constitutionality. See Carson v. Johnson, 112 F.3d 818, 821 (5th Cir.1997) cert. denied ___ U.S. ___, 117 S.Ct. 1711, 137 L.Ed.2d 835 (1997) ) ; Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) ( )
The Sixth Circuit, while not squarely addressing the constitutionality of § 1915(g) has certainly, by clear implication, indicated that it would so hold and has, in fact, applied it without questioning its constitutionality. For instance, in Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997), the Court expressly found the fee provisions of § 1915 of the PLRA to be constitutional. In so doing, the Court stated: "The legislation was aimed at the skyrocketing numbers of claims filed by prisoners — many of which are meritless — and the corresponding burden those filings have placed on the federal courts." Id. at 1286. There is no reason to doubt that the Sixth Circuit would use the same reasoning if it addressed the constitutionality of § 1915(g).
Moreover, in two unpublished opinions, the Sixth Circuit applied § 1915(g) without even a suggestion that it might be unconstitutional. See, e.g., Davis v. Harber, 1997 WL 243430 (6th Cir. May 9, 1997) ( ); Kincade v. Sparkman, 117 F.3d 949, 1997 WL 348837 (6th Cir. June 26, 1997) ( ).
As such, this court finds that Witzke has not demonstrated any palpable defect in this court's May 20, 1997 sua sponte order of dismissal. Alas, there is no joy in "Mudville," for the "Mighty" Witzke has struck out.
THEREFORE, IT IS HEREBY ORDERED that plaintiff SCOTT ANDREW WITZKE's motion for reconsideration, pursuant to L.R. 7.1(h)(3), filed on June 3, 1997 and amended on July 22, 1997, is DENIED.
SO ORDERED.
1....
To continue reading
Request your trial-
Merriweather v. Reynolds
...538, 539 (E.D.Mich.1997) (district court may dismiss case sua sponte under "three-strikes" provision), reconsideration denied, 972 F.Supp. 426 (E.D.Mich.1997). Although the use of pepper spray or a chemical munition on an inmate is, depending on the circumstances, a facially-valid civil rig......
-
Bye v. Nationwide Mut. Ins. Co.
...from a correction thereof. A palpable defect is a defect that is obvious, clear, unmistakable, manifest, or plain. Witzke v. Hiller, 972 F.Supp. 426, 427 (E.D.Mich.1997). Plaintiff does not address this standard. In fact, Plaintiff has done precisely what local rule 7.1 prohibits-Plaintiff ......
-
Rochester v. David Michael Mccall Jr
...538, 539 (E.D. Mich. 1997) (district court may dismiss case sua sponteunder "three-strikes" provision), reconsideration denied, 972 F. Supp. 426 (E.D. Mich. 1997). Petitioner is not entitled to a prison transfer to another SCDC institution, to an out-of state prison, or to a federal prison.......
- Casteel v. Sara Lee Corp.
-
Prison Litigation Reform
...(3d Cir. 1997); Arvie v. Lastrapes, 106 F.3d 1230 (5th Cir. 1997); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996); Witzke v. Hiller, 972 F. Supp. 426 (E.D. Mich. 1997). See also Lyon v. Krol, 127 F.3d 763 (8th Cir. 1997)(applying the three-strikes rule, but reserving judgment on the issu......