Heibel v. Caruso et al

Filing 19

ORDER Adopting Report and Recommendation and Denying Plaintiff's Objection Signed by District Judge Marianne O Battani. (BThe)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ROBERT HEIBEL, Plaintiff, v. Magistrate Judge Mona K. Majzoub DIRECTOR PATRICIA CARUSO, et al., Defendants. ____________________________/ ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING PLAINTIFF'S OBJECTION Plaintiff Robert Heibel, who is a state prisoner, filed this action pro se alleging that his civil rights had been violated. The Court dismissed several defendants pursuant to 28 U.S.C. § 1915 (e)(2), for failure to state a claim upon which relief could be granted. The Court ordered Plaintiff to submit additional copies of his complaint so that service upon the remaining Defendants could be effectuated. Plaintiff subsequently filed a request for clerk's entry of default against the remaining Defendants, which was denied because no summons was returned. After the Court Case No. 08-13078 Hon. Marianne O. Battani

referred this action to Magistrate Judge Majzoub for all pretrial proceedings, Heibel filed a Motion for Default Judgment. In a Report and Recommendation ("R&R") dated October 30, 2008, Magistrate Judge Majzoub recommended that the motion be denied because Plaintiff failed to carry his burden of showing that Defendants have been served properly. See Doc. No. 16, R&R at 2. This Court agrees.

The court's docket shows that the U.S. Marshal acknowledged receipt of process from the Clerk on August 22, 2008. There is no entry showing that Defendants have been served with process; however, counsel for the remaining Defendants entered an appearance on October 22, 2008. Defendants filed a Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6) on that date as well. See Doc. Nos. 13-15. The motion delays the time in which a defendant must serve an answer. See FED. R. CIV. P. 12(a)(1)(A). Under 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2), a party seeking review of a magistrate judge's report and recommendation is required to act within ten days of service of the R&R. In his objection, Heibel asks the Court to order the United States Marshal to submit an affidavit of proof of service for the record. The Court has reviewed the pleadings, the governing rules, and the R&R de novo. The Court finds the R&R accurately articulates the law and presents a well-reasoned analysis of the application of governing law to the facts of this case. Defendants have filed a dispositive motion, and Plaintiff has filed a response. There is no basis for entering a default judgment in this matter. Likewise there is no basis for granting Plaintiff's request for an affidavit. The Federal Rules of Civil Procedure do not require an affidavit when service is made by a "United States marshal or deputy marshal." FED. R. CIV. P. 4(l)(1). The Court declines to require an affidavit in contravention of the rules. Accordingly, the Court REJECTS Plaintiff's Objection, ADOPTS the Report and Recommendation.

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IT IS SO ORDERED. s/Marianne O. Battani MARIANNE O. BATTANI UNITED STATES DISTRICT JUDGE DATE: November 13, 2008

CERTIFICATE OF SERVICE Copies of this Order were served upon Plaintiff and counsel of record on this date. s/Bernadette M. Thebolt Deputy Clerk

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