Fleming v. Wayne County Jail et al

Filing 174

ORDER Directing the U.S. Marshal Service to Attempt Personal Service Upon Defendant Jean and Addressing Plaintiff's Latest Filings Related to Defendant Jean (ECF Nos. 158 , 160 , 161 , 162 , 163 , 164 , 167 , 168 ) Signed by Magistrate Judge Anthony P. Patti. (JOwe)

Case 2:19-cv-12297-MAG-APP ECF No. 174, PageID.1414 Filed 09/21/23 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL DELON FLEMING,
Plaintiff,
v.

Case No. 2:19-cv-12297
District Judge Mark A. Goldsmith
Magistrate Judge Anthony P. Patti

WAYNE COUNTY JAIL, et al.,
Defendants.
_________________________/
ORDER DIRECTING THE U.S. MARSHALS SERVICE TO ATTEMPT
PERSONAL SERVICE UPON DEFENDANT JEAN and ADDRESSING
PLAINTIFF’S LATEST FILINGS RELATED TO DEFENDANT JEAN
(ECF Nos. 158, 160, 161, 162, 163, 164, 167, 168)
A.

Background
Michael Delon Fleming is currently incarcerated at the Michigan

Department of Corrections (MDOC) Kinross Correctional Facility (KCF), where
he is serving a sentence imposed on April 3, 2019. See Case No. 18-9678-01-FC
(Wayne County).1 As detailed in the Court’s September 14, 2022 order, Fleming
initiated this lawsuit in August 2019, but he filed an amended complaint in April
2022 naming more than twenty Defendants (ECF No. 91, ¶¶ 4-13). (ECF No. 113,
PageID.871-872.)

(See www.michigan.gov/corrections, “Offender Search,” last visited Sept. 20,
2023.)

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Some Defendants are represented by Wayne County Corporation Counsel
(e.g., Wayne County, Napoleon, Michael Knaus, Justin Bultz, David Loftis,
William Bayko, Khidair Al-Abid, Benjamin Leck, Brodey Kegley, & Jordan
Murbach). (ECF Nos. 49, 63, 102, 110.) Other Defendants are represented by
Correct Care Solutions’ counsel (e.g., Erika Johnson, Amy Gray, Alice Norris,
Paige Proper, Jamie Sharpe, Dominique Montgomery, & Correct Care Solutions
(CCS)). (ECF Nos. 32, 36, 38, 39, 75.) Moreover, on April 24, 2023, the Court
dismissed without prejudice Defendants Sabiation, Biaz (or Diaz), and Deniess for
failure to comply with Fed. R. Civ. P. 4(m). (ECF No. 147.)
B.

Attempts at service of process upon Defendant Edward Jean
The Court has made multiple attempts to facilitate the U.S. Marshal

Service’s (USMS’s) efforts to serve Defendant Jean, including: (1) the Clerk’s
December 2020 preparation of service paperwork (ECF No. 24, PageID.132); (2)
the USMS January 2021 acknowledgement (ECF No. 29, PageID.175); (3) a
summons issued in April 2022 (ECF No. 88); (4) a May 2022 acknowledgement
by the USMS (ECF No. 95, PageID.773); (5) a certified mail domestic return
receipt signed by Eric Brosley but undated (ECF No. 99); (6) the Court’s
September 2022 order directing Wayne County Corporation Counsel to inform the
Court whether it is representing Defendant Jean (ECF No. 113); (7) Wayne County
Corporation Counsel’s September 2022 response (ECF No. 115); (8) the Court’s
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December 2022 order directing Wayne County Corporation Counsel to provide
Jean’s last known address to the USMS for use in effecting service of process
(ECF No. 129); or, (9) a January 2023 issuance of summons and the USMS
acknowledgment (ECF Nos. 130, 132).
C.

The USMS is directed to attempt personal service upon Defendant Jean.
To date, Defendant Jean has not appeared. Based on tracking information

from the USMS, it seems the last attempt “was delivered to an individual at the
address at 12:17 pm on January 30, 2023 in WESTLAND, MI 48185.” 2
Unfortunately, the Court has been unable to discern if the “individual” was, in fact,
Defendant Jean or if he signed an acknowledgment of receipt. Therefore, in
accordance with Fed. R. Civ. P. 4(e), and in what is intended to be a final courtassisted attempt at service upon Jean, the USMS is DIRECTED to attempt
personal service upon Defendant Jean at: (1) the address provided to the USMS
and used for the January 2023 attempt at service (see ECF Nos. 129, 130, 132); or,
(2) after reasonable inquiry, any other location within the E.D. Mich. where the
USMS believes Defendant Jean reasonably may be found. The cost of personal
service is waived. Ultimately, if Defendant Jean cannot be successfully personally
served with process, the case against him may be subject to dismissal without
prejudice under Fed. R. Civ. P. 4(m).
2

See https://tools.usps.com/go/TrackConfirmAction, 70192970000003540450.
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D.

Plaintiff’s June 21, 2023 Filings Related to Defendant Jean
On June 21, 2023, Plaintiff filed a series of documents, most of which relate

to yet-to-appear Defendant Jean. Upon consideration:
1.

Plaintiff’s Fed. Rules Civ. P. 54, 55 and 70 “motion for
show of cause why default judgment or civil contempt
should not be ordered against Defendant Edward Jean[,]”
(ECF No. 158), is DENIED, because Jean would not be
required “to plead or otherwise defend[,]” Fed. R. Civ. P.
55(a) (id., PageID.1340), where, as noted above, there is
no proof that he has been served with this lawsuit.3

2.

Plaintiff’s “petition for writ of habeas corpus ad
testificandum and participate in court proceedings[,]”
(ECF No. 160), is DENIED. Plaintiff contends that Jean
“has failed to cooperate with plaintiff,” and “has
disobeyed the court[,]” and, seemingly with reference to
the above-mentioned motion (ECF No. 158), Plaintiff
believes “fact-based testimony could aid the Court on
determining, fines, cost and plaintiff’s compensation.”
(Id., PageID.1348.) However, if a future event requires
Plaintiff’s participation, the Court will take steps, as
necessary, to ensure Plaintiff is “brought before this
Court by way of video . . .” (id., PageID.1350.)
Moreover, in light of the fact that the Court cannot even
tell if Jean was actually served, it is in no position to
deem Jean uncooperative or disobedient.

3.

Plaintiff’s Fed. R. Civ. P. 70 “motion for contempt of
court upon Defendant Edward Jean” / “motion to hold
Defendant Edward Jean in civil contempt” (ECF No.
161), is DENIED. Plaintiff suggests that Jean has
“fail[ed] to plead or otherwise defend[,]” Fed. R. Civ. P.

In addition, even if there was proof of service, “[a]ny 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 .
. . .” 42 U.S.C. § 1997e(g)(1).
3

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55(a), and also states that Jean has “deliberately failed
[to] cooperate with Plaintiff,” and “disobeyed the
Court[.]” (Id., PageID.1352, 1354, 1357-1358) (citing,
inter alia, Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d
716, 720 (6th Cir. 1996).) However, as noted above,
there is no proof that he has been served with this
lawsuit.
4.

Plaintiff’s Fed. Rules Civ. P. 54 and 55 “motion for
default judgment against Defendant Edward Jean[,]”
(ECF No. 162), is DENIED. Jean suggests that Jean has
“fail[ed] to plead or otherwise defend[,]” Fed. R. Civ. P.
55(a), and also states that Jean has “deliberately failed
[to] cooperate with Plaintiff,” and “disobeyed the
Court[.]” (Id., PageID.1361, 1364-1365 (citing, inter
alia, Jones v. Bock, 549 U.S. 199, 213-214 (2007).)
However, as noted above, there is no proof that he has
been served with this lawsuit.

5.

Plaintiff’s Fed. Rules Civ. P. 54 and 55 “request[] for
order of default judgment upon Defendant Edward
Jean[,]” (ECF No. 163), is DENIED, because, even if
Plaintiff’s prayer for relief was $1,000,000, and even if
$45,454.55 represents one-twenty-second of this amount,
Jean would not be required “to plead or otherwise
defend[,]” Fed. R. Civ. P. 55(a) (id., PageID.1368),
where, as noted above, there is no proof that he has been
served with this lawsuit.

Finally, the Court need not remark further on Plaintiff’s request for
entry of default (ECF No. 164), as the Clerk of the Court has already
DENIED it for “[n]o green card received after issuance of summons
on [January 11, 2023][,]” (ECF No. 165).

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E.

Plaintiff’s July 24, 2023 Filings Related to Defendant Jean
On July 24, 2023, citing collectively Fed. Rules Civ. P. 55, 58, and

60, Plaintiff filed a request to reinstate all motions accompanied with initial
default judgment (ECF No. 167), as well as a request for relief from the
Clerk’s denial of Plaintiff’s request for entry of default as to Jean (ECF No.
168). In each of these filings, Plaintiff refers to the Clerk of the Court’s June
21, 2023 “Notice of Denial of Request for Clerk’s Entry Of Default,” which
explained that “[n]o green card [was] received after issuance of summons on
[January 11, 2023] [(ECF No. 130)] [,]” (ECF No. 165). (ECF No. 167,
PageID.1378 ¶ 1; ECF No. 168, PageID.1383 ¶ 1.) Upon consideration,
Plaintiff’s requests (ECF Nos. 167, 168) are DENIED. Although Plaintiff
claims to have “provided such proof, attached in Exhibits B & C . . . [,]” (id.,
¶ 2), no such materials are attached to these July 24, 2023 filings or to the
aforementioned June 21, 2023 filings.
IT IS SO ORDERED. 4
Dated: September 21, 2023

_______________
Anthony P. Patti
U.S. MAGISTRATE JUDGE

The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a
period of fourteen (14) days after being served with a copy of this order within
which to file objections for consideration by the district judge under 28 U.S.C. §
636(b)(1).
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