Annabel v. Ericson et al

Filing 89

OPINION AND ORDER sustaining 87 Objection, holding 86 Report and Recommendation in abeyance, requiring an attempt of service upon defendants Brown, Robinson, and Weberg, and amending caption. Signed by District Judge Stephen J. Murphy, III. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,
Plaintiff,

Case No. 2:15-cv-10345

v.

HONORABLE STEPHEN J. MURPHY, III

JORG ERICHSEN, et al.,

MAGISTRATE STEPHANIE DAWKINS DAVIS

Defendants.
/
OPINION AND ORDER SUSTAINING OBJECTION [87], HOLDING
REPORT [86] IN ABEYANCE, REQUIRING AN ATTEMPT OF SERVICE ON
DEFENDANTS BROWN, ROBBINSON, AND WEBERG, AND AMENDING CAPTION
Michigan state prisoner Robert Annabel filed a pro se civil rights complaint under 42
U.S.C. § 1983. The Court referred the case to Magistrate Judge Stephanie Dawkins Davis,
who ordered Plaintiff to show cause why she should not recommend dismissal as to
Defendants Robbinson, Brown, and Weberg. Plaintiff filed objections which Magistrate
Judge Davis construed as a response to the order. Before the Court is Magistrate Judge
Davis’s Report and Recommendation that the Court dismiss Plaintiff’s claims against
Robbinson, Brown, and Weberg with prejudice pursuant to Rule 41(b). Having examined
the record and considered Plaintiff’s timely objections de novo, the Court will sustain the
objections in part, hold the Report in abeyance, and order one final attempt of service on
Robbinson, Brown, and Weberg.
BACKGROUND
The Report properly details the events giving rise to Plaintiff's action. ECF 86, PgID
670–74. The Court will adopt that portion of the Report.

LEGAL STANDARD
Federal Rule of Civil Procedure 72(b) governs the review of a magistrate judge's
report. A district court's standard of review depends upon whether a party files objections.
The Court need not undertake any review of portions of a Report to which no party has
objected. Thomas v. Arn, 474 U.S. 140, 153 (1985). De novo review is required, however,
if the parties "serve and file specific written objections to the proposed findings and
recommendations." Fed. R. Civ. P. 72(b)(2). In conducting a de novo review, "[t]he district
judge may accept, reject, or modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
DISCUSSION
Rule 4(m) states in pertinent part as follows:
If a defendant is not served within 120[1] days after the complaint is filed, the
court--on motion or on its own after notice to the plaintiff--must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
It has been more than a year since the Court granted Plaintiff’s application to proceed in
forma pauperis and directed the U.S. Marshal to serve the defendants without prepayment
of costs. See Abel v. Harp, 122 F. App'x 248, 251 (6th Cir. 2005) (quoting 28 U.S.C.
§ 1915(d), which requires “[t]he officers of the court [to] issue and serve all process, and
perform all duties in such cases” after granting a plaintiff leave to proceed as a pauper).
The Michigan Department of Corrections (MDOC) designated Robbinson and Brown as
“unknown,” and refused to accept service on their behalf. ECF 25, 26. Defendant Weberg
1

As of December 1, 2015, Rule 4 requires service within 90 days of filing. Plaintiff
filed his complaint before this date, so the 120-day deadline applies.
2

was initially misidentified as Merrianne Weberg, so the Court re-ordered service. ECF 45.
The Court must consider whether Plaintiff has shown good cause for his noncompliance with the 120-day service period. Lockhart v. Holiday Inn Exp. Southwind, 531
F. App'x 544, 549 (6th Cir. 2013). “Absent a showing of good cause to justify a failure to
effect timely service, the Federal Rules of Civil Procedure compel dismissal.” Byrd v. Stone,
94 F.3d 217, 219 (6th Cir. 1996). To establish “good cause” for his failure to timely serve
a defendant, a pro se plaintiff must show that he has not “remain[ed] silent and do[ne]
nothing to effectuate such service.” Abel, 122 F. App'x at 252 (quoting Rochon v. Dawson,
828 F.2d 1107, 1110 (5th Cir. 1987)).
To date, Plaintiff has yet to provide full names and addresses for the three unserved
defendants despite Magistrate Judge Davis’s repeated admonition that “the onus
remain[ed] on [Plaintiff] to discover and submit sufficient information for service of all
defendants he has named in his lawsuit” in the event the U.S. Marshal could not effectuate
service. ECF 86, PgID 671. With the Rule 4(m) deadline now long-passed, Magistrate
Judge Davis has recommended that those defendants be dismissed.
Although he has yet to produce the unserved defendants’ full names and addresses,
Plaintiff has not “remained silent and done nothing” to effectuate service. He has
requested—from the Court and elsewhere—the assistance of counsel for the limited
purpose of serving the unidentified defendants.2 See ECF 87, PgID 685–87. He has also

2

Plaintiff made this request earlier, see ECF 75, PgID 569–70, and reiterated it here
as an objection to the Report, ECF 87, PgID 681. But “there is no right to counsel in
prisoner civil rights cases,” Bennett v. Smith, 110 F. App'x 633, 635 (6th Cir. 2004) (citing
Glover v. Johnson, 75 F.3d 264, 268 (6th Cir.1996)), and “[t]he appointment of counsel in
a civil proceeding is justified only by exceptional circumstances.” Bennett, 110 F. App'x at
635 (citing Lavado v. Keohane, 992 F.2d 601, 604–06 (6th Cir. 1993)). Courts look at “the
3

cited a record document purportedly identifying Brown, described the physical
characteristics of Brown and Robbinson, described the unit to which Brown and Robbinson
were assigned, and described Corrections Officer Weberg as the son of Lieutenant
Merrianne Weberg. ECF 51, PgID 373 (citing ECF 43, PgID 283–87); ECF 84, PgID 663.
It is in consideration of this information and with an abundance of caution that the
Court finds good cause to allow one final extension of time for the U.S. Marshal to attempt
to serve Defendants Brown, Robbinson, and Weberg. If the MDOC is unable to identify
those defendants using the information Plaintiff has provided, it will become clear that any
further attempts to serve the defendants will not be fruitful and that litigation must proceed
without them. The Court will hold the Report in abeyance until it hears back from the U.S.
Marshal regarding their final attempt to effectuate service.
ORDER
WHEREFORE, it is hereby ORDERED that Plaintiff’s Objection [87] is SUSTAINED,
and the Report and Recommendation [86] is HELD IN ABEYANCE.
IT IS FURTHER ORDERED that because the Court has previously determined that
Plaintiff may proceed in forma pauperis, the U.S. Marshal shall once again make all
reasonable efforts to serve the appropriate papers in this case on Defendants Weberg,
Robbinson, and Brown without prepayment of the costs for such service. The Michigan
Department of Corrections shall make a good-faith attempt to identify defendants Weberg,

type of case and the abilities of the plaintiff to represent himself” to determine whether
exceptional circumstances exist. Lavado, 992 F.2d at 606. Those circumstances do not
exist here: the case is not overly complex, and Plaintiff has extensive litigation experience,
see ECF 1, PgID 2 (list of other lawsuits Plaintiff filed while incarcerated), as demonstrated
here by the quality of Plaintiffs’ briefs. He is quite capable of representing himself.
4

Robbinson, and Brown based on the following information, and furnish the U.S. Marshals
Service with their last-known address:
Defendant Weberg is alleged to be a corrections officer who was on second shift
at Macomb Correctional Facility (MRF), 34625 26 Mile Rd., New Haven, MI 48048
during the relevant time period, and worked at Alger Maximum Correctional
Facility during 2006 prior to his transfer to the Macomb Correctional Facility. He
is also the son of already-identified Lieutenant Merrianne Weberg. See ECF 54.
Defendant Brown is alleged to be a heavy set, African-American corrections
officer who was a second shift, Unit 7 regular, on duty on February 1, 2014 at
MRF. He is identified as having been interviewed and had his time card checked
in the “Summary of Step II Investigation” section in the “Step II Grievance Appeal
Response” page of Grievance Identifier “MRF-14-02-0154-11C.”
Defendant Robbinson is alleged to be a tall, white corrections officer who was a
first shift, Unit 1 or 7 regular, on duty on February 2, 2014 at MRF. He is alleged
to have been identified by Plaintiff in several Critical Incident Reports.
IT IS FURTHER ORDERED that MDOC shall send the requested information to:
Administrative Officer, U.S. Marshals Service, Eastern District of Michigan, 231 West
Lafayette, Detroit, Michigan 48226. The information may be used only for purposes of
effectuating service (or for proof of service, should a dispute arise), and any documentation
of the address will be retained only by the U.S. Marshals Service. Address information will
not be maintained in the court file or disclosed by the U.S. Marshals Service except as
directed by court order.
IT IS FURTHER ORDERED that the U.S. Marshals Service is authorized to mail a
request for waiver of service to defendant in the manner prescripted by Fed. R. Civ. P.
4(d)(2) before attempting personal service. The U.S. Marshals Service may collect the
usual and customary costs from Plaintiff after effectuating service.
IT IS FURTHER ORDERED that if (after this final order of service) any or all of the

5

full names and addresses of the fulls names and addresses of Defendants Weberg,
Robbinson, and Brown remain unknown, all claims against the unserved defendants will
be summarily dismissed without prejudice from this action without further notice or hearing.
IT IS FURTHER ORDERED that the Clerk of the Court shall AMEND the case caption
to read: Robert Annabel v. Jorg Erichsen, et al.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: August 15, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on August 15, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

6