VanDiver #141306 v. Correctional Medical Services, Inc. et al

Filing 75

ORDER REJECTING REPORT AND RECOMMENDATION 63 , Plaintiff's objection 64 is GRANTED; Plaintiffs Motion for Order to Reinstate In Forma Pauperis Status 71 and Motion to Reopen Case 72 are GRANTED and Plaintiffs In Forma Pauperis status is R EINSTATED pursuant to the terms of the Courts January 20, 2010 Order 6 ; Plaintiffs Motion for Order in Opposition to Report and Recommendation or, Alternatively, to Hold Case in Abeyance 66 is DENIED AS MOOT, the decision of the Sixth Circuit having since been rendered and now fully considered; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JERRY VANDIVER,
Plaintiff,

Case No. 1:10-cv-41

v

HON. JANET T. NEFF

CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants.
_______________________________/

OPINION AND ORDER

Pending before the Court are Plaintiff’s Objection (Dkt 64) to the Magistrate Judge’s Report
and Recommendation (R&R) to dismiss Plaintiff’s action (Dkt 63); Plaintiff’s “Motion for Order
in Opposition to Report and Recommendation or, Alternatively, to Hold Case in Abeyance” (Dkt
66); Plaintiff’s “Motion for Order to Reinstate In Forma Pauperis [IFP] Status” (Dkt 71); and
“Motion to Reopen Case” (Dkt 72).1 Defendants have not filed responses to Plaintiff’s motions,
though they have responded (Dkt 69) to his Objection.
Plaintiff initiated this action on January 4, 2010, and was granted leave to proceed IFP
(Dkts 1, 6). Defendants subsequently moved to revoke Plaintiff’s IFP status (Dkt 12). On
December 3, 2010, the Court adopted the Magistrate Judge’s recommendation (Dkt 38) to grant
Defendants’ motion to revoke Plaintiff’s IFP status. The Court and the Magistrate Judge agreed that
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Plaintiff’s two most recently filed motions (Dkts 71 & 72) are nearly identical; there are
only slight differences in formatting.
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Plaintiff had “three strikes” against him within the meaning of the Prisoner Litigation Reform Act
(PLRA) 28 U.S.C. § 1915(g), and that he had not set forth sufficient allegations of “imminent
danger” to satisfy the statutory exception (Dkt 52 at 2). The Order required Plaintiff to pay the
$350.00 filing fee within 30 days (Dkt 52). The Magistrate Judge subsequently recommended
Plaintiff’s suit be dismissed for failure to comply with the Court’s Order (Dkt 63).
Plaintiff objects and moves the Court to reconsider its revocation of his pauper status in light
of the Sixth Circuit Court of Appeals’ decision in an unrelated suit filed by Plaintiff, Vandiver v.
Vasbinder, No. 08-2602, 2011 WL 1105652 (6th Cir. Mar. 28, 2011), against the staff of G. Robert
Cotton Correctional Facility in Jackson, Michigan (“Jackson facility”). In that case, the district
court initially granted Plaintiff pauper status. Id. at *1. Plaintiff alleged that prison staff denied him
special treatment for diabetes and Heptits C in retaliation for “‘speaking out’ and ‘for seeking access
to the courts.’” Id. The district court, on the defendant’s motion, later revoked Plaintiff’s pauper
status because he had filed more than three previous actions that counted as “strikes” under the
PLRA. Id. Plaintiff appealed the district court’s ruling; the Sixth Circuit agreed that Plaintiff was
in “imminent danger” within the meaning of § 1915(g) of the PLRA. Id. at *3. According to the
Sixth Circuit, the imminent danger exception is “essentially a pleading requirement subject to the
ordinary principles of notice pleading.” Id. at *5. Moreover, § 1915(g) only requires a plaintiff to
sufficiently allege that he is in imminent danger; he is not required to make a “showing” to that
effect. Id. The Sixth Circuit concluded that Plaintiff adequately made such an allegation and
permitted him to proceed IFP pursuant to § 1915(g). Id.
This Court agrees that the Sixth Circuit’s decision regarding Plaintiff’s alleged mistreatment
necessitates a reconsideration of the Court’s analysis. Motions for reconsideration are governed by

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Local Rule 7.4 which provides in part that “[t]he 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 a correction thereof.” W.D. Mich. LCivR 7.4(a). Plaintiff argues that
the Sixth Circuit’s favorable ruling with regard to his IFP status should persuade the Court to reverse
its prior, contrary ruling, which denied him leave to proceed IFP.
The Sixth Circuit determined that Plaintiff sufficiently pleaded imminent danger when his
special diet at the Jackson facility was changed. Plaintiff now claims he experienced similar
treatment at the Muskegon Heights facility.

This treatment, according to Plaintiff, caused

complications to arise from his diabetes (Pl.’s Compl., Dkt 1 at 6). Plaintiff specifically avers that
he had parts of both feet removed as a result of inattention to his medical needs (Id. at 7). Given the
similarity of these allegations to those at issue before the Sixth Circuit, it follows that Plaintiff’s
statements in this case sufficiently allege that he is currently in imminent danger of serious physical
harm at the Muskegon Heights facility. Therefore, Plaintiff’s Objection (Dkt 63) to the Report and
Recommendation is granted; he may proceed IFP pursuant to the PLRA’s imminent danger
exception. 28 U.S.C. § 1915(g).
The Court notes that in addition to seeking reinstatement of his IFP status and to “reopen
the case,” Plaintiff requests the Court’s consideration of his pending Motion for Leave to File
Amended Complaint (Dkts 71 & 72 at 2). The Magistrate Judge has not yet considered that Motion
(Dkt 46), and the Court, therefore, makes no ruling with respect to that request.
THEREFORE, IT IS ORDERED that Plaintiff’s Objection (Dkt 64) is GRANTED, and
the Magistrate Judge’s Report and Recommendation (Dkt 63) is REJECTED.

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IT IS FURTHER ORDERED that Plaintiff’s “Motion for Order to Reinstate In Forma
Pauperis Status” (Dkt 71) and “Motion to Reopen Case” (Dkt 72) are GRANTED, and Plaintiff’s
In Forma Pauperis status is REINSTATED pursuant to the terms of the Court’s January 20, 2010
Order (Dkt 6).
IT IS FURTHER ORDERED that Plaintiff’s “Motion for Order in Opposition to Report
and Recommendation or, Alternatively, to Hold Case in Abeyance” (Dkt 66) is DENIED AS
MOOT, the decision of the Sixth Circuit having since been rendered and now fully considered.

Date: June 27, 2011

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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