VanDiver et al v. Madery

Filing 10

ORDER to Supplement Filing. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:21-cv-11771-TGB-EAS ECF No. 10, PageID.139 Filed 04/28/22 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY VANDIVER,

2:21-CV-11771-TGB-EAS

Plaintiff,
vs.

ORDER TO SUPPLEMENT
FILING

BRIAN MADERY, ET AL.,

Defendants.
Plaintiff Jerry VanDiver, who is presently incarcerated at the G.
Robert Cotton Correctional Facility in Jackson, Michigan, filed a pro se
civil rights complaint against four MDOC employees who work in the
mail room at his facility and the Director of the MDOC. He alleged that
Defendants opened and destroyed some of his legal mail between
November 1, 2018, and February 21, 2021 to retaliate against him for
filing other lawsuits. ECF No. 1. On December 22, 2021, the Court found
that he was a “three-striker” barred from filing his Complaint by the
Prison Litigation Reform Act, and that he did not meet the “imminent
danger of serious physical injury” exception to this bar. ECF No. 5.

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Case 2:21-cv-11771-TGB-EAS ECF No. 10, PageID.140 Filed 04/28/22 Page 2 of 3

Therefore, the Court denied his application to proceed in forma pauperis
and dismissed his Complaint without prejudice.
Mr. VanDiver now moves the Court to reconsider its previous
ruling. ECF Nos. 7, 9. The motion does not identify the authority under
which it is brought, but the Court will liberally construe it as filed
pursuant to Fed. R. Civ. P. 60(b), which outlines the various grounds
under which a court may grant relief from a final order or judgment.1
In his Motion for Reconsideration, Plaintiff references more than
once the “Affidavit of Serious Imminent Danger” attached to his original
complaint. However, his original filing only contains one page of this
affidavit, and the Court cannot determine if it is complete or if pages are
missing. ECF No. 1, PageID.38. Therefore, the Plaintiff is HEREBY
ORDERED to supplement the affidavit of imminent harm and explain
how his health conditions present an imminent harm. He may re-submit
the previous affidavit or prepare a new one. He should also explain how
the claims of interference with mail from November 1, 2018, and
February 21, 2021 and denial of grievance forms relate to the alleged
imminent physical harm. In other words, how does interference with mail
and/or denial of grievance forms cause or relate to an “imminent danger
of serious physical injury” now?
In this District, motions for reconsideration of final orders can only be
brought under Fed. R. Civ. P. 59(e) or 60(b). See Local Rule 7(h). Given
that Mr. VanDiver challenges this Court’s Order and subsequent
Judgment, Rule 60(b) is the most appropriate.
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Case 2:21-cv-11771-TGB-EAS ECF No. 10, PageID.141 Filed 04/28/22 Page 3 of 3

Plaintiff has sixty (60) days to submit any supplemental materials,
not to exceed 15 pages. The Court will consider the Motion for
Reconsideration at that time.
IT IS SO ORDERED this 28th day of April, 2022.
BY THE COURT:

/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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