Mann v. Schlottman et al

Filing 34

ORDER Granting in Part and Denying in Part Plaintiff's 29 and 30 Motions to Extend Summonses. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK MANN,
Plaintiff,

Case No. 15-cv-12869
Hon. Matthew F. Leitman

v.
SOE SCHLOTTMAN, et al.,
Defendants.
_________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTIONS TO EXTEND SUMMONSES (ECF ## 29, 30)
Plaintiff Jack Mann (“Mann”) is an inmate currently in the custody of the Federal
Bureau of Prisons (the “BOP”). (See Compl., ECF #1.) He has brought a pro se action
against (1) various federal corrections officers and officials, whom Mann has identified
only as Mr. Schlottman, Ms. Bittenbender, Warden J.A. Terris, Mr. Gillespie, and C.O.
Rische,1 (2) the BOP, and (3) the Department of Justice (collectively, “Defendants”).
(See id.)

Mann originally filed an application to proceed in forma pauperis (the

“Application”) in this action.

(See ECF ## 3, 5).

But after Mann failed to cure

deficiencies with the Application on three separate occasions, the Court dismissed his
Complaint without prejudice on October 27, 2015. (See ECF #10.) Mann thereafter
chose to forgo proceeding in forma pauperis, and he paid the Court’s $350 filing fee and
$50 administrative fee on December 21, 2015. (See ECF #19.) The Court then reopened

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For ease of reference, the Court refers to these defendants as “Schlottman,”
“Bittenbender,” “Terris,” “Gillespie,” and “Rische.”
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Mann’s case and issued summonses for each Defendant on January 7, 2016. (See ECF
#21.)
On April 21, 2016, the Court entered an Order extending the life of the
summonses to July 5, 2016 (the “April 21 Order”). (See ECF #27.) In the April 21
Order, the Court also informed Mann that he was responsible for (1) serving a summons
and Complaint on each Defendant and (2) filing a certificate of service with the Clerk of
this Court confirming that he had timely served the summonses and the Complaint. (See
id. at 3, Pg. ID 180.)
On June 21 and again on July 1, 2016, Mann filed a motion requesting that the
Court extend the summonses (the “Motions to Extend”). (See ECF ## 29, 30.) In the
Motions to Extend, Mann states that he seeks to extend the summonses because his
original Complaint was “missing, lost, or stolen/destroyed.” (See Motions to Extend at ¶
2, ECF ## 29, 30, Pg. ID 184, 190.) While the Motions to Extend were pending, Mann
also filed an Amended Complaint on July 6, 2016. (See ECF #31.) For the reasons
explained below, the Court will treat the Amended Complaint as Mann’s operative
pleading in this action, and it GRANTS IN PART AND DENIES IN PART the
Motions to Extend.
A.

The Amended Complaint and Summonses for the Newly-Added Defendants
The Court will treat Mann’s Amended Complaint – which adds two new

Defendants – as the operative complaint in this action. On July 21, 2016, the Clerk of the
Court issued new summonses for the newly-added Defendants in the Amended
Complaint: the United States of America and Ms. Sauter. (See ECF ## 32, 33.) Mann is

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advised that the summonses for the newly-added Defendants will expire on October 19,
2016. Mann (and Mann alone) is responsible for timely serving the summonses and the
Amended Complaint on the United States of America and Ms. Sauter, and Mann shall file
a certificate of service with the Clerk of this Court confirming that he has properly and
timely accomplished such service.
B.

The Motions to Extend the Summonses
With respect to the Motions to Extend, Rule 4(m) of the Federal Rules of Civil

Procedure provides that
[i]f a defendant is not served within 90 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.
The United States Court of Appeals for the Sixth Circuit has stated that “the
determination of good cause is a discretionary determination entrusted to the district
court.” Lockhart v. Holiday Inn Exp. Southwind, 531 Fed. App’x 544, 549 (6th Cir.
2013) (quotation and citation omitted).
Under the circumstances, the Court concludes that there is good cause to extend
the summonses for the Defendants named in the original Complaint. The Court accepts
Mann’s representation that the original Complaint was lost or destroyed and that Mann
accordingly could not serve the summonses and original Complaint within the required
time frame.

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Accordingly, the summonses for the Defendants named in the original Complaint
(Defendants Schlottman, Bittenbender, Terris, Gillespe, Rische, the BOP, and the
Department of Justice) are extended until, and shall expire on October 19, 2016 – the
same day the summonses expire for Defendants Sauter and the United States of America.
Mann (and Mann alone) is responsible for timely serving the summonses and the
Amended Complaint on Defendants Schlottman, Bittenbender, Terris, Gillespe, Rische,
the BOP, and the Department of Justice. Mann must also serve this Order extending the
summonses on those Defendants.
Absent extraordinary circumstances, the Court will not further extend the
life of any of the summonses issued in this action.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
1. The Motions to Extend (ECF ## 29, 30) are GRANTED to the extent they
request to extend the life of the summonses for Defendants Schlottman,
Bittenbender, Terris, Gillespe, Rische, the BOP, and the Department of Justice.
By not later than October 19, 2016, Mann must properly serve (1) the
Amended Complaint, (2) the summonses, and (3) a copy of this Order
extending the life of the summonses on Defendants Schlottman, Bittenbender,
Terris, Gillespe, Rische, the BOP, and the Department of Justice. And by not
later than October 31, 2016, Mann must file a Certificate of Service with the
Clerk of this Court confirming such service. On November 1, 2016, the Court
will review the docket to determine whether Mann has filed a Certificate of
Service confirming proper and timely service on each of the Defendants listed
in this paragraph. Any Defendant upon whom Mann has failed to accomplish
timely and proper service shall be dismissed without prejudice from this action
at that time. The Motions to Extend are DENIED in all other respects.
2. In addition, Mann shall serve Defendants United States of America and Ms.
Sauter with (1) the Amended Complaint and (2) the summonses by October
19, 2016. And by not later than October 31, 2016, Mann must file a
Certificate of Service with the Clerk of this Court confirming such service. On

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November 1, 2016, the Court will review the docket to determine whether
Mann has filed a Certificate of Service confirming proper and timely service
on each of the Defendants listed in this paragraph. Any Defendant upon whom
Mann has failed to accomplish timely and proper service shall be dismissed
without prejudice from this action at that time.
3. When the Clerk of this Court serves this Order on Mann, the Clerk shall
include summonses for all of the Defendants. Once again, Mann (and Mann
alone) is responsible for timely and properly serving the summonses and the
Amended Complaint on each Defendant as described above. And, once again,
Mann is also responsible for serving this Order extending the summonses on
Defendants Schlottman, Bittenbender, Terris, Gillespe, Rische, the BOP, and
the Department of Justice.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 26, 2016
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on July 26, 2016, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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