Jones v. Barnhart et al

Filing 89

ORDER DIRECTING THE U.S. MARSHAL TO ATTEMPT PERSONAL SERVICE UPON DEFENDANT PAULA MASS--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN JONES (#162751),
Plaintiff,
CASE NO. 2:10-CV-12114
JUDGE ARTHUR J. TARNOW
MAGISTRATE JUDGE ANTHONY P. PATTI
v.
PATRICIA BARNHART and
PAULA MASS,
Defendants.
/
ORDER DIRECTING THE U.S. MARSHAL TO ATTEMPT PERSONAL
SERVICE UPON DEFENDANT PAULA MASS
A.

Plaintiff filed his amended complaint against two defendants.
John Jones (#162751) is currently incarcerated at the MDOC’s Thumb

Correctional Facility (TCF) in Lapeer, Michigan. Jones initiated this lawsuit on
May 26, 2010 against several defendants. DE 1. Plaintiff Jones is proceeding in
forma pauperis in this lawsuit.1

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On June 17, 2010, Magistrate Judge Whalen entered an order waiving
prepayment of the filing fee and directing payment of the initial partial filing fee and
subsequent payments (DE 6), as well as an order directing service without prepayment
of costs and authorizing the U.S. Marshal to collect costs after service is made (DE 7).

Three (3) years later, on August 22, 2013, Plaintiff Jones filed an amended
complaint (DE 59) in which he named only two (2) defendants: Patricia Barnhart, a
former TCF Warden, and Paula Mass, a former Physician Assistant at TCF.
B.

The U.S. Marshal has effected service upon Defendant Barnhart;
however, defendant Paula Mass has yet to appear.
“When a litigant proceeds in forma pauperis, Federal Rule of Civil Procedure

4(c)(3) and 28 U.S.C. § 1915 require the district court to order that service be made
on the plaintiff's behalf.” Williams v. Lindamood, 526 Fed.Appx. 559, 564 (6th Cir.
2013). Fed. R. Civ. P. 4(c)(3) provides:
At the plaintiff's request, the court may order that service be made by a
United States marshal or deputy marshal or by a person specially
appointed by the court. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a
seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3) (“By a Marshal or Someone Specially Appointed.”).
Over the course of this lawsuit, this Court has directed the U.S. Marshal to
effect service on several occasions. See DE 7, DE 58, DE 60 and DE 83. For
example, on the date the amended complaint was filed, Judge Tarnow entered an
order (DE 58) which, in part, directed the U.S. Marshal to effect service on Barnhart
and Mass. On September 27, 2013, Judge Tarnow entered an order (DE 60) order
directing service without prepayment of costs and directing the MDOC to provide
certain information as to Paula Mass.
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The U.S. Marshal sent a waiver to Barnhart on October 22, 2013. Barnhart
executed the waiver on November 12, 2013, and it was filed with the Court on
November 26, 2013. DE 62. Thus, Barnhart has appeared.
However, more than one (1) year after the filing of the amended complaint, it
seems that Defendant Paula Mass has yet to be served.
C.

The U.S. Marshal’s attempts at service by mail have resulted in the
discovery that Defendant Paula J. Mass, P.A., is a former employee of
Corizon Health, rather than of the MDOC.
Attempts to effect service upon Defendant Mass have not been without this

Court’s effort. For example, in Magistrate Judge Komives’s February 27, 2014
report (DE 68), he recommended that the Court enter another order requiring the
MDOC to provide certain information and directing the U.S. Marshal to attempt
service upon Defendant Mass.
On April 22, 2014, the U.S. Marshal acknowledged receipt of documents for
service of process upon Defendant Mass. DE 76. That same day, the U.S. Marshal
attempted service of process upon Defendant Mass by mail to Corizon Health at its
Michigan Regional Office. DE 78.
By way of an April 29, 2014 letter, Corizon Health informed the Court that
Paula Mass was no longer employed by Corizon Health. DE 78 at 1. On
September 15, 2014, Judge Tarnow entered an order (DE 81) which, in part,
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directed the MDOC to provide to the U.S. Marshal whatever information was
necessary for the Marshals to effect service on Defendant Paula Mass.
D.

Plaintiff himself has supplied the Court with an address at which
Defendant Mass may be served.
On November 4, 2014, Plaintiff himself provided an address of McLaren

Greater Lansing Family Medicine, 2815 South Pennsylvania Avenue, Suite 105,
Lansing, MI 48910 for Defendant Mass. DE 82. On November 25, 2014,
Magistrate Judge Komives entered an order (DE 83) which, in part, directed the
U.S. Marshal to attempt service of process upon Mass at the address provided by
Plaintiff.
Although the ensuing paperwork was mistakenly prepared to effect service
upon Mass at TCF (DE 84), it was reissued to attempt service upon Mass at the
address provided by Plaintiff (DE 86). On February 5, 2015, the U.S. Marshal
informed my staff that an attempt at service upon Defendant Mass by mail to the
South Pennsylvania Avenue address was made on December 18, 2014.
E.

The Court now directs personal service.
The reason Defendant Mass has yet to appear seems to be that she has not yet

been served. Fed. R. Civ. P. 4 provides: “Unless federal law provides otherwise, an
individual--other than a minor, an incompetent person, or a person whose waiver
has been filed--may be served in a judicial district of the United States by:
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(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e) (“Serving an Individual Within a Judicial District of the United
States.”) (emphasis added).
In Michigan, “[p]rocess may be served on a resident or nonresident
individual by (1) delivering a summons and a copy of the complaint to the
defendant personally; or (2) sending a summons and a copy of the complaint by
registered or certified mail, return receipt requested, and delivery restricted to the
addressee. Service is made when the defendant acknowledges receipt of the mail.
A copy of the return receipt signed by the defendant must be attached to proof
showing service under subrule (A)(2).” M.C.R. 2.105(A) (“Process; Manner of
Service”) (emphasis added).
Considering the above-discussed and apparently unsuccessful attempts of
both this Court and Plaintiff Jones to effect service of this lawsuit upon Defendant
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Paula Mass by mail, I conclude that the next course of action should be for the U.S.
Marshal to attempt personal service of a summons and the August 22, 2013
amended complaint (DE 59) upon Defendant Paula Mass in accordance with Fed.
R. Civ. P. 4(e)(2)(A) & M.C.R. 2.105(a)(1).
If this avenue does not result in service upon Defendant Paula Mass, the
Court may resort to entering an order requiring Plaintiff to show cause why
unserved Defendant Paula Mass should not be dismissed. See Rickman v.
Tantchou, No. 11–13079, 2012 WL 3639062, *2 n.1 (E.D. Mich. Aug. 23, 2012)
(Cohn, J.) (“The magistrate judge's [chambers] was late[r] notified by the Marshal's
office that personal service at that address failed because the address was the
headquarters of Corizon Health, and Corizon stated that they will not accept service
because Tantchou is not an employee of Corizon. On January 30, 2012, Plaintiff
was ordered to show cause why the claims against Tantchou should not be
dismissed for failure to serve process.”).2
F.

Order

2

Should that be necessary, the Court will be open to entertaining issues related
to service upon Defendant Mass, such as whether there is good cause for the apparent
failure to effect service upon Mass within 120 days (see Fed. R. Civ. P. 4(m) (“Time
Limit for Service.”)), whether alternate means of service are appropriate, and whether
Corizon Health could or should be asked by way of a non-party subpoena (see Fed.
R. Civ. P. 45) to disclose Defendant Mass’s last known address to the U.S. Marshal
under seal.
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Accordingly, the U.S. Marshal is DIRECTED to attempt personal service of a
summons and the August 22, 2013 amended complaint (DE 59) upon Paula Mass at
the address provided by Plaintiff Jones in his November 4, 2014 notice (DE 82):
Paula J. Mass, P.A., McLaren Greater Lansing Family Medicine, 2815 South
Pennsylvania Avenue, Suite 105, Lansing, MI 48910.
Furthermore, the Clerk of the Court is DIRECTED to: (1) serve a copy of this
Order upon Corizon Health at its Michigan Regional Office (6452 Millennium Dr,
Ste 100, Lansing, MI 48917) and its Corporate Office (103 Powell Court,
Brentwood, TN 37027);3 and (2) serve a copy of this Order upon the Chapman Law
Group (c/o Kimberley A. Koester, Esq. and Ronald W. Chapman, Esq., 40950
Woodward Avenue, Suite 120, Bloomfield Hills, MI 48304), which, according to
the records of this Court, is currently representing Corizon Health, Inc. in several
other matters now pending in this District.4
IT IS SO ORDERED.

Dated: February 6, 2015

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

3

See www.corizonhealth.com, “Locations.”

4

See, i.e., Turner v. CMS (Case No. 2:13-cv-11783-NGE-MJH), Mitchell v. Badawi (Case
No.
2:14-cv-11346-LPZ-RSW) and Laporte v. Corizon Health, Inc. (Case No.
2:14-cv-12231-RHC-MKM).
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I hereby certify that a copy of the foregoing document was sent to parties of record
on February 6, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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