Staples v. United States of America et al
Filing
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OPINION and ORDER Summarily Dismissing the 1 Complaint. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM STAPLES,
Plaintiff,
v.
Case No. 2:16-cv-12367
JUDGE GERSHWIN A. DRAIN
MURPHY, et al.,
Defendants.
________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT
Plaintiff filed a pro se civil rights complaint against Defendants on June 23,
2016. Dkt. No. 1. Plaintiff is a federal prisoner currently confined at the United
States Federal Correctional Institution in Salters, South Carolina. For the reasons
that follow, the complaint is DISMISSED WITHOUT PREJUDICE because of
plaintiff’s failure to prosecute the case by serving the defendants in a timely
manner.
I. Background
Plaintiff filed a lawsuit against seven defendants. The Court reviewed
plaintiff’s complaint, dismissed the United States of America and two individuals
as defendants and ordered Plaintiff to provide copies and documentation needed to
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effectuate service in July 2016. Dkt. No. 5.
After Plaintiff failed to comply with the July order, the Court ordered
Plaintiff to show cause why his case should not be dismissed on December 13,
2016. Dkt. No. 6.
On January 9, 2017, this Court issued a second dismissal order, dismissing
defendant Stone from the complaint. The Court also ordered Plaintiff to supply the
Court with sufficient copies of his complaint so the United States Marshal Service
could serve the remaining defendants. Dkt. No. 8.
The Marshal Service received the requested copies of the complaint on May
18, 2017. Dkt. No. 13. The United States Marshal Service then attempted service
on Defendants Murphy and Bowman.
On June 28, 2017, the United States
Marshal Service received the Waiver of Service returned as unexecuted as to both
Defendants Murphy and Bowman. Dkt. No. 14. Defendant Murphy no longer
works at the Bureau of Prisons, and there is no current Milan employee with the
last name Bowman. Dkt. No. 14, pg. 1 (Pg. ID 76).
On August 10, 2017, this Court entered an Order for Plaintiff to Show Cause
Why This Case Should Not be Dismissed for Failure to Prosecute. Dkt. No. 15.
Plaintiff responded on September 15, 2017. Dkt. No. 16.
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On November 3, 2017, this Court dismissed the order to show cause and
again directed the Marshal Service to attempt to serve the remaining two
defendants. Dkt. No. 17. 1
The Marshal Service received the order directing service/reservice on
February 2, 2018. Dkt. No. 19. However, there is nothing in the record to indicate
that either defendant has been served.
On December 21, 2018, this Court entered a second Order for Plaintiff to
Show Cause Why This Case Should Not be Dismissed for Failure to Prosecute.
Dkt. No. 21. Plaintiff filed two responses on January 14, 2019 and January 22,
2019. Dkt. No. 22, 23. In his responses, plaintiff argues that the Marshal Service’s
attempt to serve the defendants at their last place of employment at the Federal
Correctional Institution (FCI) in Milan, Michigan was sufficient service under
federal and state law since the waiver of service was received by a staff member at
FCI-Milan.
II. Discussion
The Federal Rules of Civil Procedure require a plaintiff to serve each
defendant a summons and a copy of the complaint. Fed. R. Civ. P. 4(c)(1). Where,
as here, a plaintiff has been authorized to proceed in forma pauperis, “the court
may direct that service be effected by a United States Marshal.” Fed.R.Civ.P.
The “John Doe” defendant was dismissed because plaintiff never identified this
defendant, although he was given time to do so by this Court.
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4(c)(2). A plaintiff like Mr. Staples who alleges a claim against a United States
employee in an individual capacity must serve both the United States and the
employee in accordance with the procedures outlined in Rule 4(e), (f), or (g). See
Fed. R. Civ. P. 4(i)(3). The relevant provision in this case would be Fed. R. Civ. P.
4(e), which requires that the summons be personally served upon the defendant.
Fed. R. Civ. P. 4(e)(2). A plaintiff has 90 days after filing the complaint to serve
process. See Fed. R. Civ. P. 4(m). If the plaintiff fails to meet this requirement, the
court may dismiss the action against the unserved defendant without prejudice. Id.
Upon a showing of good cause for the failure, however, the court must extend the
time for service. Id.
Plaintiff’s argument that service on the two defendants was accomplished
when the Marshal Service attempted to serve them at their last place of
employment is unavailing. See Bernier v. Trump, 299 F. Supp. 3d 150, 158-59
(D.D.C. 2018)(District Court should have dismissed prisoner’s Bivens claim
against former chief physician of the Federal Bureau of Prisons (BOP) for lack of
personal jurisdiction based on insufficient service of process, where attempted
service to physician at the BOP’s central office by United States Marshal on behalf
of prisoner was unsuccessful given that, according to BOP employees, physician
no longer worked for the BOP). Although Fed. R. Civ. P. 4(e)(2)(C) permits the
service of a complaint upon “an agent authorized by appointment or by law to
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receive service of process,” plaintiff is not entitled to avail himself of this
provision because he made no showing of an agency relationship between the
Federal Bureau of Prisons or any of its employees and the two defendants. See
Staples v. United States, No. 18-6070, ---- F. App’x----; 2019 WL 413746, at * 5
(10th Cir. Feb. 1, 2019). An agency appointment, for purposes Fed. R. Civ. P.
4(e)(2)(C), “usually requires an ‘actual appointment for the specific purpose of
receiving process.’” Nyholm v. Pryce, 259 F.R.D. 101, 104 (D.N.J. 2009). Plaintiff
has made no such showing.
Plaintiff is correct that service may be effected pursuant to the law of the
state in which the district court is located. Fed.R.Civ.P. 4(e)(1). The Michigan
Court Rules provide that process may be served on a resident or nonresident
individual by:
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).
Mich. Ct. R. 2.105(A). Additionally, Michigan Court Rule 2.105(H)(1) indicates
that:
Service of process on a defendant may be made by serving a summons
and a copy of the complaint on an agent authorized by written
appointment or by law to receive service of process.
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Mich. Ct. R. 2.105(H)(1).
Plaintiff would not be entitled to avail himself of Mich. Ct. R. 2.105(H)(1)
because there is no evidence that the Federal Bureau of Prisons or any of its
employees were authorized by written appointment or law to accept service on
behalf of the defendants. See McLean v. Dearborn, 302 Mich. App. 68, 80, 836
N.W.2d 916, 923 (2013).
Plaintiff’s complaint shall be dismissed without prejudice because he failed
to execute service upon the defendants in a timely manner or establish good cause
for an extension of time, particularly where he has already been given several
extensions of time to serve the defendants. See Reed-Bey v. Pramstaller, 607 F.
App’x. 445, 450 (6th Cir. 2015).
III. ORDER
IT IS HEREBY ORDERED that the complaint is DISMISSED
WITHOUT PREJUDICE.
Dated:
April 5, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, April 5, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager
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