Pollock v. Rardin

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES POLLOCK, Jr.,
Petitioner,
vs.
ERIC RARDIN,
Respondent.
2:24-CV-12731-TGB-APP
HON. TERRENCE G. BERG
ORDER DENYING MOTION
FOR RECONSIDERATION
(ECF NO. 12)
AND MOTIONS FOR
IMMEDIATE RELEASE
(ECF NOS. 11 & 13)
Charles Pollock, Jr. (“Petitioner”) filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, which was dismissed
without 	prejudice, 	because 	Petitioner 	failed 	to 	exhaust 	his
administrative remedies and failed to show that it would be futile to do
so. Pollock v. Rardin, No. 2:24-CV-12731 TGB-APP, 2025 WL 1699581
(E.D. Mich. June 17, 2025). Petitioner then filed a motion for immediate
release (ECF No. 11), a motion for reconsideration (ECF No. 12), and
another motion for immediate release (ECF No. 13). For the reasons that
follow, the motions will be DENIED.
To begin, motions for reconsideration of final orders and judgments
are no longer permitted under Local Rule 7.1 but must be brought under
Federal Rules of Civil Procedure 59(e) or 60(b). E.D. Mich. LR 7.1(h)(1);
Ackerman v. Washington, No. CV 13-14137, 2021 WL 5782896, at *1 n. 1
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(E.D. Mich. Dec. 7, 2021)(Parker, J.). Because Petitioner is proceeding
pro se, the motion for reconsideration can be construed as a motion to
alter or amend judgment filed under Rule 59, since both motions are
analogous. See Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich. Apr.
22, 1999)(Gadola, J.) (treating motion to alter or to amend judgment filed
by a pro se habeas petitioner as a motion for reconsideration filed under
Local Rule 7.1).
The decision of whether to grant a motion to alter or amend
judgment under Rule 59 is discretionary. Davis by Davis v. Jellico Cmty.
Hosp., Inc., 912 F.2d 129, 132 (6th Cir. 1990). A motion to alter or amend
judgment will generally be granted if the district court made a clear error
of law, if there is an intervening change in the controlling law or newly
discovered evidence, or if granting the motion will prevent manifest
injustice. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th
Cir. 1999). However, “[a] Rule 59 motion ‘may not be used to relitigate
old matters, or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.’” Brumley v. United Parcel
Serv., Inc., 909 F.3d 834, 841 (6th Cir. 2018) (quoting Exxon Shipping Co.
v. Baker, 554 U.S. 471, 486 n. 5 (2008) (additional quotation omitted)).
Petitioner in his motion for reconsideration acknowledges that he
“relies in part” on the arguments that he raised in his reply to the
Respondent’s response to argue that this Court erred in dismissing his
petition on exhaustion grounds. ECF No. 12, PageID.117. To the extent
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Petitioner’s 	motion 	for 	reconsideration 	presents 	issues 	which 	were
already ruled upon by this Court, either expressly or by reasonable
implication, when the Court dismissed the petition for a writ of habeas
corpus, he is not entitled to reconsideration of those issues. See Hence v.
Smith, 49 F. Supp. 2d at 553.
Petitioner does not otherwise claim that the Court made a clear
error of law, that there has been an intervening change in the controlling
law, or newly discovered evidence warranting reconsideration. Rather,
Petitioner—for the first time—argues that exhaustion should be excused
because he was unable to obtain the administrative remedy forms from
BOP staff. ECF No. 12, PageID.117.1 But Petitioner did not raise or
present evidence supporting the “unavailability” argument in his petition
(ECF No. 1), reply (ECF No. 8), or his addendum (ECF No. 9). This
problem proves fatal for Pollock, as a motion for reconsideration is
generally not an appropriate vehicle for a party to raise new facts or
arguments. United States v. A.F.F., 144 F. Supp. 2d 809, 812 (E.D. Mich.
Apr. 10, 2001)(Lawson, J.) (collecting cases). A motion to reconsider
“[s]erves the limited purpose of allowing a court to correct manifest errors
1 	This “inability to exhaust” argument is slightly different from the
argument in his initial petition which claimed it would be 	futile 	to
exhaust given that his release date would render issues moot. The futility
argument was extensively discussed—and rejected—in this Court’s order
dismissing Pollock’s petition for failure to exhaust. See Pollock v. Rardin,
2025 WL 1699581, at *4-5.
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of law or fact. A motion to reconsider should be used neither to introduce
new evidence that was available during the original consideration nor to
introduce new legal theories.” Carlson v. Reno, 56 F. Supp. 2d 997, 998
(N.D. Ill. Feb. 25, 1999) (internal citation omitted). “Rule 59(e) relief is
not warranted ‘when [a motion] is premised on evidence that the party
had in his control prior to the original entry of judgment.” Zucker v. City
of Farmington Hills, 643 Fed. Appx. 555, 567 (6th Cir. 2016).
A motion to alter or amend judgment is likewise not an opportunity
to re-argue a case, and parties should not use such motions “to raise
arguments which could, and should, have been made before judgment
issued.” Sault Ste. Marie Tribe of Chippewa Indian v. Engler, 146 F.3d
367, 374 (6th Cir. 1998) (citation omitted). The reason for this is that
“Rule 	59(e) 	motions 	are 	aimed 	at 	re 	consideration, 	not 	initial
consideration.” Id. (citation omitted). Arguments raised for the first time
by a party in a motion for reconsideration “ought not to be entertained
unless there is a credible showing why the argument could not have been
raised previously.” United States v. A.F.F., 144 F. Supp. 2d at 813. In
addition, a Rule 59(e) motion to alter or amend judgment is not a
substitute for an appeal. See Johnson v. Henderson, 229 F. Supp. 2d 793,
796 (N.D. Ohio Nov. 6, 2002).
Pollock’s new “unavailability of remedy” argument and the evidence
he provided in support were not presented before judgment in this case,
though they were available to Petitioner before that time. Thus, this
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Court cannot entertain Petitioner’s unavailability argument being raised
for the first time in his motion for reconsideration.
Moreover, 	even 	if 	the 	Court 	could 	entertain 	Petitioner’s 	new
“unavailability” argument, Pollock would still not be entitled to relief.
Pollock alleges that he filed directly to the Bureau of Prisons’ Regional
Office four times “after many failed attempts, some in person, to obtain”
grievance forms (also known as “BP” forms) from Unit Team Staff. ECF
No. 12, PageID.117. He alleges “there are some thirteen (13) documented
attempts in Petitioner’s efforts to obtain BPs.” Id. (citing Pet. Exs. 10-16,
20-23).
But a review of many of those “documented attempts” shows that
they do not actually request BP forms and/or address issues that are
different from the FSA credit calculation originally raised in this habeas
case. See, e.g., Pet. Ex. 17, ECF No. 12, PageID.139 (asking for his risk
assessment 	to 	enroll in 	certain 	classes); 	Pet. 	Ex. 	18, 	ECF 	No. 	12,
PageID.140 (asking the “B Unit Team” to share the FSA credit calculator
tool to case managers); Pet. Ex. 20, ECF No. 12, PageID.142 (asking the
Regional Office for his fingerprint impressions to obtain his criminal
history report); Pet. Ex. 21, ECF No. 12, PageID.143 (asking the Regional
Office for his birth certificate and $10.00 to be returned to his account).
The 	“documented 	attempts” 	that 	relate 	to 	the 	calculation 	of
Pollock’s prerelease date show that the process is available to him—albeit
slower than he would like—and therefore such attempts do not excuse
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his failure to exhaust administrative remedies. Pollock filed written “cop-
outs”2 about his prerelease date to BOP staff members on October 10 and
November 26, 2024, and requested to receive BP forms—though it is not
clear what for—between December 19, 2024 and January 5, 2025. Pet.
Exs. 	3-4, 	ECF 	No. 	8, 	PageID.75-76; 	Pet. 	Exs. 	22-23, 	ECF 	No. 	12,
PageID.144-45; 	Pet. 	Exs. 	15-16, 	ECF 	No. 	12, 	PageID.137-38. 	He
complained to the Regional Office on October 22, 2024 regarding a
seemingly different matter that “to obtain a BP-9 or a response to a
written cop-out here at Milan is next to impossible if not impossible” and
that he “NEVER received a response from anything [he has] filed here.”
Pet. Ex. 21, ECF No. 12, PageID.143. But Pollock admitted in his motion
for 	reconsideration 	that 	“[a]fter 	multiple 	complaints-filings 	to 	the
Regional 	Office, 	[he] 	did 	receive 	some 	BP 	forms.” 	ECF 	No. 	12,
PageID.117. He also admitted that he received a response to a BP-8 dated
December 20, 2024 and thereafter asked Warden Rardin to complete the
BP-9 via email on January 3, 2025. Pet. Ex. 15, ECF No. 12, PageID.136.
Thus, the evidence Petitioner provided does not sufficiently support his
conclusory 	allegation 	that 	the 	administrative 	remedy 	was 	or 	is
unavailable to him.
2 A “cop-out” is an informal procedure which is officially called an “Inmate
Request to Staff” or a BP–AO148. See Schaefer v. Bezy, 435 F. App’x 550,
551 (7th Cir. 2011).
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For the foregoing reasons, Pollock’s motion for reconsideration
(ECF No. 12) is DENIED. Because the Court declined to grant habeas
relief to Petitioner, his motions for immediate release (ECF Nos. 11 & 13)
are DENIED AS MOOT. See Schmanke v. Hemingway, No. 02-CV-
40028-FL, 2002 WL 34230308, at *6 (E.D. Mich. Sep. 30, 2002)(Gadola,
J.) (holding that “[a]s Petitioner is not entitled to habeas relief on his
substantive claims, most of his various pending motions are moot,”
including his three pending motions for immediate release).
Accordingly, 	it 	is 	hereby 	ORDERED 	that 	the 	Motions 	for
Immediate 	Release 	(ECF 	Nos. 	11 	& 	13) 	and 	the 	Motion 	for
Reconsideration (ECF No. 12) are DENIED.
SO ORDERED.
Dated: October 27, 2025 	/s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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