Mallory v. Sessions

Filing 11

ORDER DENYING AND EXTENDING DEADLIN to Effect Service 2 Petition filed by Donald Eugene Mallory --Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD EUGENE
MALLORY,
Plaintiff,

Case No. 2:17-cv-12021
District Judge George Caram Steeh
Magistrate Judge Anthony P. Patti

v.
JEFF SESSIONS,
Defendant.
_________________________/
ORDER DENYING PLAINTIFF’S JUNE 22, 2017 PETITION TO SEAL
AND EXTENDING THE DEADLINE TO EFFECT SERVICE
(DE 2)
A.

Background
Donald Mallory is currently incarcerated at the Michigan Department of

Corrections Lakeland Correctional Facility (LCF) in Coldwater, Michigan. (DE
8.) He is serving a life sentence imposed on April 1, 1987 in Case No. 86-07734
(Wayne County). See www.michigan.gov/corrections, “Offender Search.”
Mallory has previously filed several matters in this Court, including petitions
for a writ of habeas corpus (Case Nos. 2:92-cv-71453-ADT, 5:94-cv-60284-GL) as
well as other civil matters (Case Nos. 2:88-cv-72028-JAC, 2:98-cv-71472-PJD,
2:04-cv-71626-BAF-SDP, and 4:13-cv-13466-MAG-MKM).
B.

Plaintiff’s “Bill in Equity”

On June 22, 2017, while incarcerated at the MDOC’s Muskegon
Correctional Facility (MCF), Plaintiff filed a “Bill in Equity,” against a single
defendant - Jeff Sessions, Attorney General of the United States. Throughout
Plaintiff’s initiating document, he cites several “equitable maxims.” He
specifically mentions the Trading with the Enemy Act (50 U.S.C. §§ 4301-4341)
and the Emergency Banking Relief Act (12 U.S.C. §§ 95b, et seq.). He also
references the aforementioned Wayne County case number. Among other things,
Plaintiff seeks return of $17,429,256,000.00 – a figure apparently derived from a
2012 Income Tax Return reporting an estimate of $50,108,000 and a 2013 Income
Tax Return in the sum of $17,379,148,000. (DE 1 at 1-7; see also DEs 3-4.)
C.

Service upon Defendant Sessions
On September 19, 2017, the Clerk’s Office noted in the docket that

Plaintiff’s initiating document was “filed without any form of payment or
application for In Forma Pauperis.” Following Plaintiff’s “notice” and
“application to proceed in district court without prepaying fees or costs,” the Court
entered an order granting Plaintiff’s application to proceed in forma pauperis.
(DEs 7, 9, 10.) I further directed the Clerk’s Office to issue the summons(es).
Ordinarily, Plaintiff would only have 90 days from the date his initiating
document was filed within which to serve Defendant:
If 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

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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. This subdivision (m) does not apply to
service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).
Fed. R. Civ. P. 4(m) (“Time Limit for Service.”).
Plaintiff filed his initiating document on June 22, 2017. Thus, he would have been
required to serve Defendant no later than, approximately, Wednesday, September
20, 2017. However, given that the Court only recently addressed Plaintiff’s
application to proceed in forma pauperis, and given that the Clerk’s Office has yet
to issue the summons(es), the Court will provide an extension of time within which
to effect service upon Defendant Sessions. Fed. R. Civ. P. 4(i)(4), Fed. R. Civ. P.
4(m).
D.

Plaintiff’s Petition to Seal
Judge Steeh has referred this case to me to conduct all pretrial matters.

Currently before the Court is Plaintiff’s June 22, 2017 two-page filing labeled,
“Petition to Seal.” Here, too, Plaintiff quotes an “equitable maxim.” (DE 2 at 1.)
Although the document is difficult to read, the Court can discern that Plaintiff’s
“wherefore” clause asks for “an order sealing the Bill in Equity.” (DE 2 at 2.)
E.

Order
Upon consideration, Plaintiff’s petition to seal (DE 2) is DENIED, as the

relief ultimately sought – sealing his initiating document – is not warranted.

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Moreover, within thirty (30) days of Plaintiff’s receipt of the summons(es)
from the Clerk’s Office, Plaintiff SHALL attempt service of the summons and
complaint in accordance with Fed. R. Civ. P. 4, paying particular attention to Fed.
R. Civ. P. 4(c) (“Service.”), Fed. R. Civ. P. 4(i) (“Serving the United States and Its
Agencies, Corporations, Officers, or Employees.”), and Fed. R. Civ. P. 4(l)
(“Proving Service.”). Plaintiff is CAUTIONED that a failure to serve Defendant
Sessions in accordance with Fed. R. Civ. P. 4 may result in dismissal of his case.
IT IS SO ORDERED.

Dated: November 29, 2017

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

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on November 29, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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