Horecek v. Seaman et al

Filing 67

ORDER Adopting 65 Report and Recommendation Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANIEL HORACEK,
Plaintiff,

Case No. 08-10866
Hon. Marianne O. Battani

v.
Magistrate Judge Paul Komives
LORI SEAMAN, et al.,
Defendants.
____________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION REGARDING
DEFENDANTS’ SEPTEMBER 15, 2010 MOTION FOR SUMMARY JUDGMENT
Plaintiff Daniel Horacek filed this action alleging that his civil rights had been
violated. The Court referred this matter to Magistrate Judge Paul Komives for all pretrial
proceedings. (See Doc. No. 12). On July 14, 2011, the Magistrate Judge issued a Report
and Recommendation Regarding Defendants’ September 15, 2010 Motion for Summary
Judgment (R&R). In his R&R, Magistrate Judge Komives recommended denying the
motion. On July 26, 2011, Defendants filed an objection (Doc No. 66). For the reasons
that follow, the Court finds the R&R accurately articulates the law and presents a wellreasoned analysis of the application of governing law to the facts of this case, and the
Court ADOPTS the Report and Recommendation, and DENIES the Objection.
I. BACKGROUND
In September 2009, the Court granted Plaintiff leave to amend his complaint to add
as Defendants, Aaron Alley and Carol Wilkerson (“Added Defendants”), relative to Plaintiff’s
claim that his legal mail was opened outside his presence. This claim was limited to the

extent that it accrued after January 21, 2006. (Doc. No. 33). Thereafter, the Magistrate
Judge entered an order deeming the complaint amended, and directed service of process
on Added Defendants by the U.S. Marshal. (See Doc. No. 34).
In April 2010, Plaintiff was assigned counsel to represent him. Despite the earlier
order deeming the complaint amended, in a May 19, 2010 Scheduling Order, the
Magistrate Judge directed Plaintiff to file an amended complaint on or before May 28, 2010.
Plaintiff failed to do so. In their motion for summary judgment, Defendants rely on Plaintiff’s
failure to comply with the Scheduling Order, as well as the fact that Added Defendants had
not been served, to assert that the statute of limitations had run and the amended pleading
could not relate back.
In the R&R, the Magistrate Judge recommended that the motion be denied because
the Order entered September 24, 2009, deemed Plaintiff’s complaint amended by
substituting Aaron Alley and Carol Wilkerson as defendants for the John/Jane Doe
defendants. Further, the Magistrate Judge recommended that the Court reject the statute
of limitations argument because the proposed amended complaint tolled the limitations
period. (See Doc. No. 32 at 24-27). Finally, the Magistrate Judge addressed the lapse in
time between the September 24, 2009 Order directing service, and the February 23, 2011,
receipt of the documents for service of process. Because the delay is attributable, in part,
to the Court, the Magistrate Judge recommended denying the dispositve motion to the
extent it is based upon the failure to serve Added Defendants within the time provided by
Rule 4(m). (Doc. No. 65 at 19).

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II. STANDARD OF REVIEW
Pursuant to statute, this court's standard of review for a magistrate judge's report and
recommendation requires the following:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1)(C).
III. ANALYSIS
At the outset, Defendants observe that they have met every court deadline, and
Plaintiff has violated every deadline. To the extent that Defendants are correct, the Court
finds a review of the record demonstrates that Plaintiff himself should not be held
accountable for the violations of his court-appointed counsel. In turning to the merits of the
objections, the Court rejects Defendants’ positions. As to their claim that there are no
remaining defendants in this matter, they are incorrect. Plaintiff’s complaint was deemed
amended on September 24, 2009. Defendants ignore this order in making their argument
that Plaintiff failed to file an amended complaint naming Added Defendants.
The Court also rejects Defendants’ argument that the statute of limitations has run.
When this Court adopted the recommendation that Plaintiff be allowed to amend his
complaint on September 10, 2009, it implicitly rejected this argument. The Magistrate
Judge discussed the issue in the prior R&R, which the Court adopted.
Defendants next argue that this matter must be dismissed pursuant to Federal Rule
of Civil Procedure 4(m) because Added Defendants were not served before the time for
service had lapsed. Although Rule 4(m) requires dismissal without prejudice if service of
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the complaint and summons is not made within 120 days after those documents are filed,
“if the plaintiff shows good cause for the failure, the court must extend the time for service
for an appropriate period.” FED. R. CIV. P. 4(m).

Here, the Court agrees with the

Magistrate Judge that the seventeen month delay in service of the amended complaint on
Alley cannot be attributed to Plaintiff. In this case, the Court ordered service by the U.S.
Marshal. That service did not occur. The Court declines to hold Horacek, who was pro se
at the time, accountable for this delay. He was “entitled to rely on service by the U.S.
Marshal.” Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986) (observing that
“[s]o long as [a pro se ] prisoner provides the information necessary to identify the
defendant, courts have uniformly held that the Marshals' failure to effect service
automatically constitutes good cause within the meaning of Rule 4(m)”). The same
analysis applies to the failure to serve Wilkerson.
Finally, in light of the procedural posture of this case, the Court finds Defendant’s
request for summary judgment on the merits premature.
IV. CONCLUSION
Accordingly, the Court ADOPTS the Report and Recommendation.
IT IS FURTHER ORDERED that Oakland County Corporation Counsel shall provide
Wilkerson’s last known address “directly to the Marshal where the information will be
maintained in a confidential manner and used only for service of process purposes.”
Address information will not be maintained in the court file or disclosed by the U.S.
Marshals Service except as directed by court order. The U.S. Marshals Service is
authorized to mail a request for waiver of service to Defendant Wilkerson in the manner

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prescribed by Rule 4(d)(2) before attempting personal service.
IT IS SO ORDERED.

s/Marianne O. Battani
_
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

DATE: September 1, 2011

CERTIFICATE OF SERVICE

Copies of this Order were mailed and/or e-filed to Plaintiff and counsel of record
on this date.
s/Bernadette M. Thebolt
Case Manager

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