VanDiver et al v. Madery

Filing 22

ORDER denying 20 Motion to Set Aside Dismissal. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:21-cv-11771-TGB-EAS ECF No. 22, PageID.335 Filed 01/19/23 Page 1 of 2

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

2:21-CV-11771-TGB-EAS

Plaintiff,
vs.

ORDER DENYING MOTION
TO SET ASIDE DISMISSAL

BRIAN MADERY, et al.,

(ECF NO. 20)

Defendant.

Jerry VanDiver, a self-represented Michigan prisoner, sued five
officials from the Michigan Department of Corrections, asserting that
they violated his First Amendment rights by interfering with and
destroying his legal mail in retaliation for other lawsuits he has filed over
his medical care. See 42 U.S.C. § 1983. (ECF No. 1.)
Under Administrative Order 18-AO-042, VanDiver’s case was
referred to the Pro Se Prisoner Early Mediation Program. (ECF No. 15.)
At a conference before Magistrate Judge Kimberly G. Altman on October
25, 2022, the parties reached a settlement agreement. Under the terms
of this agreement, VanDiver agreed to dismiss his claims in exchange for
a $250 payment. (ECF No. 21-2.) Accordingly, the Court entered an order
dismissing and closing the case but retaining jurisdiction to enforce the
terms of the settlement. (ECF No. 19.)
On November 3, 2022, VanDiver submitted a filing, styled as a
“Motion to Reopen the Case and Set Aside the Order of Dismissal.” (ECF
1

Case 2:21-cv-11771-TGB-EAS ECF No. 22, PageID.336 Filed 01/19/23 Page 2 of 2

No. 20.) In this filing, he asserted that Defendants had not yet made the
$250 payment. He further explained that, on October 31, he had sent
them a letter, telling them that he would seek to reopen his case if he did
not receive payment by November 4.
In

response,

Defendants

acknowledged

they

had

received

VanDiver’s letter. (ECF No. 21.) They also submitted receipts showing
they had deposited $250 to his inmate trust account on November 3. (ECF
No. 21-3.) VanDiver did not submit a further reply.
The Court is not bound by the procedural labels attached to
VanDiver’s submission. See Brown v. Mills, 639 F.3d 733, 734 (6th Cir.
2011). As its primary focus is non-payment under the terms of the
settlement agreement, the Court will construe it as a motion to enforce
the agreement. Given Defendants’ uncontradicted evidence that the $250
payment has now been made to VanDiver, the motion is DENIED.
To the extent that VanDiver seeks to set aside the agreement, he
has not articulated any recognizable ground for doing so. Nor has he
articulated any other reason to set aside the order of dismissal. This case
remains closed.
IT IS SO ORDERED, this 19th day of January, 2023.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
2