Taylor v. Corizon Medical Corporation et al

Filing 40

ORDER DENYING Plaintiff's 12 Motion for Default Judgment--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MAURICE TAYLOR #112401,
Plaintiff,
Case No. 2:17-cv-12271
District Judge David M. Lawson
Magistrate Judge Anthony P. Patti

v.
CORIZON MEDICAL
CORPORATION and THE
MICHIGAN DEPARTMENT OF
CORRECTIONS,
Defendants.
___________________________________/

ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
(DE 12)
I.

BACKGROUND
Plaintiff, a state inmate who is proceeding without the assistance of counsel,

filed this action on July 11, 2017, along with an application to proceed in forma
pauperis, naming as Defendants Corizon Medical Corporation (“Corizon”) and the
Michigan Department of Corrections (MDOC). (DEs 1, 2.) The Court granted
Plaintiff’s application on August 21, 2017, and ordered the U.S. Marshals Service
to serve the appropriate papers on Defendants without prepayment of costs. (DEs
9, 10.) On September 18, 2017, the Court received notifications that process had
been returned executed from the MDOC, but returned unexecuted as to Corizon.
(DEs 14, 15.) On October 19, 2017, the Court entered an order directing the U.S.

Marshals Service to serve the appropriate papers on Corizon at a different address,
and the U.S. Marshals Service filed an acknowledgement of the receipt of the
documents for service on November 21, 2017. (DEs 16, 19.) Counsel
subsequently entered an appearance on behalf of for Corizon Health, Inc. on
December 13, 2017. (DEs. 20, 21.) On January 4, 2018, Defendant Corizon filed
a motion to dismiss for failure to exhaust administrative remedies. (DE 28.)
II.

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
Plaintiff filed the instant motion for default judgment on September 14,

2017, asserting that Defendant Corizon failed to file “a timely and responsible
answer to Plaintiff’s meritorious COMPLAINT[.]” (DE 12.) Defendant Corizon
filed a response to Plaintiff’s motion on January 2, 2014. (DE 26.)
A default judgment would be improper for a number of reasons. First,
Defendant Corizon had not been served with Plaintiff’s complaint at the time the
motion was filed and therefore no answer was required. See Fed. R. Civ. P. 4.
Indeed, this motion was filed four days before the first waiver of service sent to
Corizon was returned unexecuted on September 18, 2017 (DE 14), one month
before the Court ordered service on Corizon at a different address on October 19,
2017 (DE 16), and over two months before the U.S. Marshals Service filed its
acknowledgement of receipt of service of process documents on November 21,
2017. (DE 19.)
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Second, Plaintiff filed this action in forma pauperis under the Prisoner
Litigation Reform Act (“PLRA”), which provides in relevant part as follows:
(g) Waiver of reply
(1) Any defendant may waive the right to reply to any action brought
by a prisoner confined in any jail, prison, or other correctional facility
under section 1983 of this title or any other Federal law.
Notwithstanding any other law or rule of procedure, such waiver shall
not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply has
been filed.
(2) The court may require any defendant to reply to a complaint
brought under this section if it finds that the plaintiff has a reasonable
opportunity to prevail on the merits.
42 U.S.C. § 1997e(g). As such, even when a defendant is served, it is only
required to file an answer if the Court so orders. As Corizon states in its response,
it chose not to file a responsive pleading in reliance on the statute. (DE 26.)
Finally, even if the above did not require denial of Plaintiff’s motion, he has
failed to follow Federal Rule of Civil Procedure 55, which requires the proponent
of a motion for default judgment to first obtain a clerk’s entry of default. Fed. R.
Civ. P. 55(a). No entry of default has been requested in this matter. Accordingly,
for all these reasons, Plaintiff’s motion is DENIED.
IT IS SO ORDERED.

Dated: April 3, 2018

s/Anthony P. Patti
ANTHONY P. PATTI
UNITED STATES MAGISTRATE JUDGE
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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on April 3, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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