NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0349n.06
No. 07-2516
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JAMES LAMONT MILLER Jun 08, 2010
(a/k/a Money Mont), LEONARD GREEN, Clerk
Petitioner–Appellant,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
WILLIE O. SMITH,
Respondent–Appellee. OPINION
______________________________________
Before: CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*
LAWRENCE P. ZATKOFF, District Judge. In June 2007, Appellant James Lamont
Miller (a/k/a Money Mont) filed a habeas petition. On August 14, 2007, the district court summarily
dismissed Appellant’s petition because it challenged his conditions of confinement. On August 28,
2007, the district court denied Appellant’s timely filed motion for rehearing or reconsideration,
which the district court treated as a Fed.R.Civ.P. 59(e) motion to amend judgment. Appellant then
filed a motion to amend judgment on September 19, 2007, wherein he relied on Rule 59(e). On
November 15, 2007, the district court denied the motion to amend judgment, and Appellant filed the
instant appeal. As previously determined by this Court, only the November 15, 2007 ruling was
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
No. 07-2516
appealed timely and, therefore, is the only ruling to be considered by this Court. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Appellant has been serving a life-imprisonment term in Michigan Department of Corrections
(“MDOC”) facilities since 1983. As the result of his conviction for murdering a corrections officer
while incarcerated, among other custodial offenses, Appellant has been placed in administrative
segregation since 1986 because he is a “[s]erious threat to physical safety of others.” According to
MDOC Policy Directive 04.05.120, Appellant’s placement in administrative segregation is reviewed
on a monthly basis. As recently as May 2007 (the record does not contain subsequent
documentation), the MDOC continued to justify its decision to house Appellant in administrative
segregation on the staff homicide.
In his habeas petition, Appellant sets forth, at length, many restrictions to which he is subject
as a result of his confinement in administrative segregation. Appellant then requested, in part, that
the district court grant the following relief:
*****
4) Order [Appellee] to give [Appellant] meaningful periodic reviews and
standards or expectations to be released back to the general population; and
5) Order [Appellee] to release [Appellant] from unlawful confinement in long-
term segregation or in indefinite administrative segregation or in prolonged
confinement in administrative segregation and back to general population
immediately.
A magistrate judge reviewed the habeas petition and recommended that Appellant’s petition be
summarily dismissed because it challenged the conditions of confinement, a challenge which must
-2-
No. 07-2516
be brought pursuant to 42 U.S.C. § 1983. Appellant filed objections to the report and
recommendation, but on August 14, 2007, the district court adopted the magistrate judge’s report
and recommendation in a memorandum opinion and entered judgment dismissing Appellant’s
petition. On August 19, 2007, Appellant filed a motion for rehearing or reconsideration of the
district court’s memorandum opinion, relying on Rule 60(b). The district court denied the motion
for rehearing or reconsideration, as well as Appellant’s request to amend his petition, on August 28,
2007. In its August 28, 2007 order, the district court treated Appellant’s filing as a Rule 59(e)
motion to amend judgment and stated that “the court has always understood the gravamen of
petitioner’s claim to be a challenge to his confinement in long-term segregation.”
On September 19, 2007, relying on Rule 59(e), Appellant filed a motion to amend judgment.
On November 15, 2007, the district court denied Appellant’s September 19, 2007 motion to amend
judgment. On November 30, 2007, Appellant’s notice of appeal was filed in this Court. On
February 13, 2008, a panel of this Court (the “Initial Panel”) determined that the appeal was timely
only with respect to the district court’s November 15, 2007 order. On May 23, 2008, a second panel
of this Court (the “Second Panel”) granted a certificate of appealability and ordered the appointment
of counsel.1
1
On May 23, 2008, the Second Panel issued an Order that stated, in its entirety:
Before: BOYCE F. MARTIN, JR. Circuit Judges. [sic]
James L. Miller, a Michigan state prisoner, appeals pro se a district court
order denying his motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)
in an action purportedly filed under 28 U.S.C. § 2254. This matter is before the court
upon an application for a certificate of appealability. Fed. R. App. P. 22(b).
-3-
No. 07-2516
On November 9, 2009, Appellee filed a motion to dismiss the appeal based on res judicata
or, alternatively, the law of the case. Appellant filed a response. On December 17, 2009, Appellee’s
motion was denied by a third panel of this Court (the “Third Panel”), without prejudice to
consideration of those issues by us, because rather than challenge subject matter jurisdiction,
Appellee’s motion merely set forth affirmative defenses. On February 25, 2010, Appellee filed a
motion to remand this case for the limited purpose of developing the record with respect to
Appellant’s claim that he is not receiving meaningful periodic review of his placement in
administrative segregation. Appellant filed a response. On March 12, 2010, we agreed to defer
consideration of Appellee’s motion to remand until oral argument.
II. ANALYSIS
It is undisputed that the only district court order to be reviewed by this Court is the order
entered on November 15, 2007.2 The November 15, 2007 order provides, in its entirety:
This was a habeas corpus action brought by a state prisoner pursuant to 28
U.S.C. § 2254. By memorandum opinion and judgment entered August 14, 2007,
this court denied the petition, finding that petitioner’s challenge to the conditions of
his confinement was properly brought as a civil rights action under 42 U.S.C. § 1983
and was inappropriately framed in a habeas corpus petition. By order entered August
28, 2007, this court denied petitioner’s motion for reconsideration, construed as a
timely motion to amend judgment under Rule 59(e). On September 19, 2007,
petitioner filed a duplicative motion to amend judgment, again purportedly
under Rule 59(e). This court has no authority to consider a motion to amend
judgment under Rule 59(e) filed more than 10 days after the entry of judgment.
Petitioner’s successive motion to amend judgment is therefore not properly
The certificate of appealability is granted. Counsel shall be appointed and a
briefing schedule established.
2
The Initial Panel held that Appellant’s “appeal is limited to review of the November 15,
2007 order denying the motion to amend.” See Feb. 13, 2008 Order.
-4-
No. 07-2516
before the court. Although the court retains authority to consider a motion for
relief from judgment under Rule 60(b), petitioner has not alleged grounds for
relief under that rule. Rather, petitioner attempts to raise, yet again, the same
arguments reviewed and rejected once by the magistrate judge and now twice by this
court. Accordingly:
IT IS ORDERED that petitioner’s motion to amend judgment . . . be and
hereby is DENIED.
(emphasis added). At oral argument, both parties indicated that the district court: (a) considered the
September 19, 2007 motion as a timely filed Rule 60(b) motion, and (b) denied the motion on the
merits. The Second Panel apparently also held that belief. See note 1, supra. We disagree.
Like the Initial Panel, we conclude that Appellant’s September 19, 2007 motion was a “Fed.
R. Civ. P. 59(e) motion to amend the judgment[.]” See February 13, 2008 Order. As the above-
highlighted portion of the November 15, 2007 district court order states: “[Appellant] filed a
duplicative motion to amend judgment, again purportedly under Rule 59(e). This court has no
authority to consider a motion to amend judgment under Rule 59(e) filed more than 10 days after the
entry of judgment. [Appellant]’s successive motion to amend is therefore not properly before the
court.” In other words, the district court concluded that it lacked authority to consider Appellant’s
untimely September 19, 2007 motion. Contrary to the interpretation of the November 15, 2007 order
by the parties, we find that the district court did not treat Appellant’s September 19, 2007 motion
as a Rule 60(b) motion for relief from judgment, nor did the district court deny the September 19,
2007 motion on the merits. Rather, the district court specifically stated that “[Appellant] has not
alleged grounds for relief under that rule [Rule 60(b)].”
Thus, the only issue before this Court is whether the district court properly denied as
untimely Appellant’s September 19, 2007 motion. This Court reviews a denial of a motion to amend
-5-
No. 07-2516
judgment under Rule 59(e) for abuse of discretion. Montgomery, 581 F.3d 440, 452 (6th Cir. 2009).
Based on the 10-day requirement under Rule 59(e) in effect at the time of the district court’s August
14, 2007 ruling,3 Appellant’s motion to amend judgment filed on September 19, 2007 was not timely
filed. We therefore conclude that the district court did not abuse its discretion in holding that the
September 19, 2007 motion was not properly before it.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.
3
In 2009, Rule 59(e) was amended to afford parties up to 28 days after the entry of
judgment to file a motion to alter or amend a judgment. In 2007, however, parties had only 10
days after the entry of judgment to file such a motion.
-6-