Reed v. Pramstaller, et al

Filing 205

ORDER Adopting Report and Recommendation for 200 Motion for Default Judgment filed by Mark Reed, 203 Report and Recommendation, 191 Motion for Default Judgment filed by Mark Reed, Ruth Ingram and Justina Nzums terminated. Signed by District Judge Victoria A. Roberts. (KKra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK ANTHONY REED-BEY, #151290,
Plaintiff,

Civil No. 06-CV-10934-VAR-RSW
HON. VICTORIA A. ROBERTS

v.
MAGISTRATE R. STEVEN
WHALEN
GEORGE PRAMSTALLER, ET AL.,
Defendants :
_____________________________/
ORDER ACCEPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION AND SUA SPONTE DISMISSING CLAIMS
AGAINST NZUMS AND INGRAM

I. INTRODUCTION
Before the Court is Plaintiff’s objection to the Magistrate Judge’s Report and
Recommendation (“R&R”) (Doc. #203), recommending that the Court deny Plaintiff’s
motions for default judgment under Fed. R. Civ. P. 55. The Court ACCEPTS the R&R.
Plaintiff’s Motion for Default Judgment (Doc. #191) and Second Motion for Default
Judgment and Motion to Reply (Doc. #200) are DENIED. And, the Court sua sponte
DISMISSES claims against Nzums and Ingram.
II. BACKGROUND
In March 2006, Mark Anthony Reed-Bey (“Reed”), an inmate in the custody of
the Michigan Department of Corrections (“MDOC”), filed a pro se civil rights complaint
under 42 U.S.C. § 1983, naming Defendants Justina Nzums and Ruth Ingram, among
others. During the course of proceedings, the Court made several attempts to serve the
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Defendants. From August 2007 to February 2011, the Court ordered service by the U.S.
Marshal Service on three separate occasions; each time the summons was returned
unexecuted, there was no waiver of service, and the summons expired. In April 2011,
the Marshal was ordered to personally serve the Defendants at their last known
addresses but was unable to locate them. Following the failed service attempts, the
Plaintiff requested a clerk’s entry of default. It was denied on March 30, 2012.
The Plaintiff then sought default judgment pursuant to Fed. R. Civ. P. 55(b). The
Magistrate Judge recommended that the motions be denied, finding that entry of default
by the clerk was a pre-requisite to default judgment under Rule 55(b).
Plaintiff objects to the Magistrate Judge’s recommendation.
III. STANDARD OF REVIEW
This Court reviews de novo any part of the Magistrate Judge’s R&R on a
dispositive motion that is properly objected to. 28 U.S.C. § 636(b)(1). § 636(b)(1)(A)
provides that “a judge may designate a magistrate judge to hear and determine any
pretrial matter pending before the court.”Id. The Court may then “reconsider any pretrial
matter under [§ 636(b)(1)(A)] where it has been shown that the magistrate judge's
order is clearly erroneous or contrary to law.” Id.
IV. ANALYSIS
The crux of Reed’s argument is that the Magistrate Judge erred in failing to
consider that Reed first requested an entry of default from the clerk before moving for
default judgment with the court.

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After a de novo review of the R&R, the Court finds that Reed’s argument is
flawed. First, Magistrate Judge Whalen did consider Reed’s request for default from the
clerk. He plainly mentioned it by stating that the “request was denied.” (Doc #203).
Second, Reed mischaracterizes the law behind entry of a default judgment. The
Court is not required to find that default judgment is appropriate merely because a party
filed a default request with the clerk. As the Magistrate Judge discussed in his R&R,
Rule 55 clearly separates the procedures for defaults and default judgments. Fed. R.
Civ. P. 55. Entry of default by the clerk is required before a court may enter a default
judgment. See Vongrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1318 (S.D. Cal. 2004).
Because the clerk denied Reed’s request for default, he is not entitled to default
judgment. The Magistrate Judge’s recommendation that Reed’s motions be denied is
appropriate.
Furthermore, the Magistrate Judge included, the following footnote in his R&R,
concerning the exhaustion of all reasonable efforts to serve Nzums and Ingram:
The Court and the Marshal have exhausted all reasonable
efforts to serve these Defendants, culminating in an
unsuccessful attempt to personally serve the Defendants at
the last known addresses provided by the MDOC. Neither
this Court nor the United States Marshal is in a position to
assume the role of Plaintiff’s private investigator in order to
locate the Defendants.
Indeed, since 2007, several unsuccessful attempts have been made to serve
Nzums and Ingram.
Under Rule 4(m) of the Federal Rules of Civil Procedure, a plaintiff must serve a
defendant within 120 days of the filing of the complaint, otherwise, the complaint shall

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be dismissed. Fed. R. Civ. P. 4(m). Alternatively, the court must extend the period of
service by a showing of good cause by a plaintiff. Id. The Sixth Circuit holds that
“[w]hen a litigant is proceeding IFP, [t]he officers of the court shall issue and serve all
process, and perform all duties in such cases.”’ Owens v. Riley, 11-1392, 2012 U.S.
App. LEXIS 4560 (6th Cir. 2012) (quoting 28 U.S.C. § 1915(d); see also Fed. R. Civ. P.
4(c)(2); Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). Good cause is shown when
service fails by no fault of a plaintiff who is proceeding IFP.

Generally, a plaintiff

proceeding IFP satisfies his obligation when "reasonable steps have been taken to
identify for the court the defendants named in the complaint." Byrd, 94 F.3d at 219.
However, such plaintiff may not sit idly by knowing service has not been effectuated and
later claim good cause for an extension of service. Owens v. Riley, No. 10-13428, 2012
U.S. Dist. LEXIS 25972 (E.D. Mich. Feb. 2012); Vandiver v. Martin, 304 F. Supp. 2d
934, 943 (E.D. Mich. 2004).
Reed’s failure to respond to or remedy Nzums’ and Ingram’s lack of service
warrants dismissal and does not constitute reasonable cooperation with the Marshal.
The record shows that waiver of service was returned unexecuted three times, the
Court sua sponte entered an order directing the Marshal to serve Nzums and Ingram.
When the fourth waiver of service was returned unexecuted, the Court sua sponte
entered an order directing the Marshal to serve Nzums and Ingram personally.
Personal service could not be made. Despite these failures of service, Reed did not
make a request for alternative methods of service. See Riley, No. 10-13428, 2012 U.S.
Dist. LEXIS 25972; compare with Puett v. Blandford, 912 F.2d 270, 271-72 (9th Cir.
1990). It is not the Court’s obligation to see that service is effectuated; it is Reed’s.
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Reed failed to serve Nzums and Ingram in a timely manner and he cannot show
good cause for failing to do so. When good cause is not shown, a Court does not
abuse its discretion in sua sponte dismissing claims. Owens v. Riley, 11-1392, 2012
U.S. App. LEXIS 4560 (6th Cir. 2012); see also Habib v. Gen. Motors Corp., 15 F.3d 72,
73 (6th Cir. 1994). All claims against Nzums and Ingram are dismissed.
V. CONCLUSION
The Court ACCEPTS the R&R. Plaintiff’s Motion for Default Judgment and
Second Motion for Default Judgment and Reply are DENIED. The Court also
DISMISSES Reed’s claims against Nzums and Ingram.
IT IS ORDERED.

/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: 3/21/13
The undersigned certifies that a copy of
this document was served on the
attorneys of record and Mark Anthony
Reed-Bey by electronic means or U.S.
Mail on March 21, 2013.
S/Linda Vertriest
Deputy Clerk

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