Smith v. Stephens et al

Filing 59

ORDER signed by Magistrate Judge Paul J. Komives DENYING 39 Motion for Service by the U.S. Marshal. (Grimes, K.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAM SMITH (#241580),
CASE NO. 2:10-CV-13763
JUDGE PAUL D. BORMAN
MAGISTRATE JUDGE PAUL J. KOMIVES

Plaintiff,
v.

Proof of Service

LEERAY STEPHENS,
JOHN DOE, ALI MUHAMMAD,
ALICIA SMITH, BRIAN STAIR,
and KYM WORTHY,

The undersigned certifies that a copy of this Order was
served on the attorneys and parties of record herein by
electronic means and First Class U.S. Mail on March 12,
2012.
s/Kim Grimes
Acting in the absence of
Eddrey Butts, Case Manager

Defendants,
/

ORDER DENYING PLAINTIFF’S AUGUST 8, 2011 MOTION
FOR SERVICE BY THE U.S. MARSHAL (Doc. Ent. 39)
A.

Plaintiff’s Original Complaint Was Filed on September 21, 2010.
Plaintiff filed his original complaint on September 21, 2010 against six (6) defendants:

Leeray Stephens, John Doe, Ali Muhammad, Alicia Smith, Brian Stair and Kym Worthy. Doc.
Ent. 1 at 4-5 ¶¶ 2-7. On September 28, 2010, this Court entered an order directing service
without prepayment of costs and authorizing the United States Marshal to collect costs after
service is made. Doc. Ent. 5. That same day, the U.S. Marshal acknowledged receipt of five (5)
copies of documents for service of process. Doc. Ent. 6. On September 29, 2010, the U.S.
Marshal attempted service upon defendants by mail. Stair and Muhammad (Doc. Ent. 7), Alicia
Smith (Doc. Ent. 12), Stephens (Doc. Ent. 14) and Worthy (Doc. Ent. 15) have filed answers to
the original complaint.

B.

Plaintiff’s August 8, 2011 First Amended Complaint Has Been Stricken.
In his August 8, 2011 first amended complaint, plaintiff again names as defendants

Stephens, Doe, Muhammad, Alicia Smith, Stair and Worthy (Doc. Ent. 36 ¶¶ 7-12) but also adds
defendant Maria A. Petito, who plaintiff claims was a Wayne County Assistant Prosecuting
Attorney (Doc. Ent. 36 ¶ 13). Stephens, Stair, Muhammad and Alicia Smith filed an answer to
the first amended complaint on August 24, 2011. Doc. Ent. 44.
However, on March 2, 2012, I entered an order (Doc. Ent. 55) granting the August 24,
2011 motion to strike plaintiff’s first amended complaint (Doc. Ent. 43) and directing the Clerk of
the Court to strike plaintiff’s August 8, 2011 first amended complaint (Doc. Ent. 36).
C.

Instant Motion
Currently before the Court is plaintiff’s August 8, 2011 motion for service of the First

Amended Complaint upon proposed defendant Petito by the U.S. Marshal. Doc. Ent. 39; see also
Doc. Ent. 40 (Certificate of Service). According to plaintiff, he “has filed with the Court an extra
copy of his First [Amended] Complaint for service on Defendant Petito by [the] U.S. Marshal.”
Doc. Ent. 39 ¶ 4.
In light of the Court’s March 2, 2012 order (Doc. Ent. 55) striking plaintiff’s August 8,
2011 first amended complaint (Doc. Ent. 36), plaintiff’s August 8, 2011 request for service of the
First Amended Complaint upon proposed defendant Petito by the U.S. Marshal will be denied.
However, such denial is without prejudice to plaintiff renewing his request if plaintiff is
successful in amending his complaint to name Petito as a defendant. See, i.e., Doc. Ent. 51
(Plaintiff’s September 27, 2012 Motion for Leave to File First Amended Complaint).

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D.

Order
Accordingly, plaintiff’s request for an order requiring the U.S. Marshal to effect service of

the August 8, 2011 First Amended Complaint upon proposed defendant Petito (Doc. Ent. 39) is
DENIED WITHOUT PREJUDICE to renewal if plaintiff is successful in amending his complaint
to name Petito as a defendant.
IT IS SO ORDERED.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of service of a copy of this order within which to file an appeal
for consideration by the district judge under 28 U.S.C. § 636(b)(1).

Dated: March 12, 2012

s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE

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