Early v. Callejas et al

Filing 44

REPORT AND RECOMMENDATION on Defendant Jerome Warfield (ECF Nos. 39 41 ). Signed by Magistrate Judge Curtis Ivy, Jr. (SKra)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OLAJUWAN EARLY,
Plaintiff,
v.
ABIGAIL CALLEJAS, et al.,
Defendants.
____________________________/

Case No.: 24-11140
Gershwin A. Drain
United States District Judge
Curtis Ivy, Jr.
United States Magistrate Judge

REPORT AND RECOMMENDATION ON DEFENDANT JEROME
WARFIELD (ECF Nos. 39, 41)
I.

BACKGROUND
Plaintiff Olajuwan Early filed this pro se prisoner civil rights complaint on

April 17, 2024, and it was docketed on April 30, 2024. 1 (ECF No. 1). On June 10,
2024, service was directed on all Defendants. (ECF No. 10). Plaintiff provided an
address for a P.O. Box: Grandview Plaza, P.O. Box 30003, Lansing, MI 48909.
(ECF No. 12). More specifically, the address he provided is the mailing address
the Michigan Department of Corrections (“MDOC”) lists on their website for
several of its offices, including the parole board. See Department of Corrections,
Contact Us, https://perma.cc/M9TA-PX2V (last visited Mar. 7, 2025). As Plaintiff

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Under the prison mailbox rule, the filing date is assumed to be the day that the pro se
prisoner plaintiff handed the filing to prison officials; that day, in turn, is assumed to be the date
on the complaint absent evidence to the contrary. See Brand v. Motley, 526 F.3d 921, 925 (6th
Cir. 2008).

is litigating in forma pauperis (“IFP”), (ECF No. 9), the Court ordered the United
States Marshals Service (“USMS”) to effectuate service of process. (ECF No. 10).
On June 14, 2024, the USMS received the service of process documents for all
Defendants bearing the same above-mentioned address. (ECF No. 12).
Roughly one month later, the Court received executed waiver of service
documents from each Defendant, except for Defendant Jerome Warfield. (ECF
Nos. 14. 15, 16, 17, 18, 19, 20, 21, 22). In September 2024, counsel for
Defendants—that is, the Michigan Department of Attorney General, (ECF No.
24)—provided Warfield’s last known address. (ECF No. 31). The Court directed
the USMS “to mail service of process documents to Warfield at that address by
certified mail, return receipt requested, and delivery restricted to Warfield.” (ECF
No. 31, PageID.295). In the same Order, the Court warned Plaintiff that “the onus
remains on him to discover and submit sufficient information for service of the
Defendants he has named in his lawsuit.” (Id.). If Warfield could not be served,
the Court further cautioned that Plaintiff may need to show good cause why “this
action should not be dismissed, without prejudice, against any Defendant that
remains unserved after the expiration of the summons.” (Id. at PageID.296).
On October 30, 2024, the Court received an unexecuted summons from
Warfield’s last known address. (ECF No. 35). The note from the United States
Postal Service (“USPS”) reads, “Return to Sender. Not Deliverable as Addressed.

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Unable to Forward.” (Id.). The Court thus ordered Plaintiff to either provide a
complete address for Warfield or show good cause why Warfield should not be
dismissed without prejudice under Federal Rule of Civil Procedure 4(m). (ECF
No. 39, PageID.349). Plaintiff filed a timely response on January 27, 2025 which
was docketed on February 4, 2025. (ECF No. 42).
Having reviewed Plaintiff’s response, the undersigned RECOMMENDS
that Defendant Warfield be DISMISSED WITHOUT PREJUDICE.
II.

ANALYSIS AND RECOMMENDATIONS
Plaintiff argues that there is good cause not to dismiss Warfield without

prejudice under Rule 4(m). He contends that he is not at fault for the failure to
serve Warfield; rather, because he is litigating IFP, the USMS is at fault for failure
to effect timely service. (ECF No. 42). Since he provided Warfield’s name and a
mailing address, Plaintiff asserts that the duty was on the USMS from there to
locate and serve Warfield. Plaintiff offers mostly out-of-Circuit case law in
support of his argument. After review, however, the undersigned is not persuaded.
“When a plaintiff is proceeding in forma pauperis, the district court bears
the responsibility for issuing the plaintiff’s process to a United States Marshal, who
must effect service upon defendants once the plaintiff has properly identified
them.” Reed-Bey v. Pramstaller, 607 F. App’x 445, 450 (6th Cir. 2015) (citing 28
U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.

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1996)). Under certain circumstances, the USMS’s failure to carry out this duty
“may constitute good cause under Rule 4.” Id. (citing Byrd, 94 F.3d at 220)
(emphasis added). “Nevertheless, an incarcerated plaintiff may not shirk all
responsibility for seeing that the Marshals Service fulfills its duty to effectuate
service.” Id. (emphasis added). In other words, IFP plaintiffs still bear some
responsibility for ensuring that the USMS has sufficient information to serve
process on defendants.
Indeed, the USMS is not tasked with conducting an exhaustive search when
attempting to serve process. Instead, as the Sixth Circuit and this Court have held,
the USMS need only make a reasonable effort to locate and serve defendants. See
Byrd, 94 F.3d at 219 (writing that the USMS serves process for IFP plaintiffs
“once reasonable steps have been taken to identify for the court the defendants
named in the complaint”); Owens v. Riley, No. 11-1392, 2012 U.S. App. LEXIS
4560, at *10-11 (6th Cir. Jan. 6, 2012) (“A plaintiff using the U.S. Marshal’s
Service for service of process must provide sufficient information to identify the
defendant with reasonable effort.”) (internal quotations and citations omitted). See
also Horn v. Washington, No. 22-11637, 2024 WL 1687702, at *1 (E.D. Mich.
Jan. 8, 2025) (citing Johnson v. Herren, No. 2:13-cv-583, 2013 WL 6410447, at
*3-4 (S.D. Ohio Dec. 9. 2013)) (“Once a pro se plaintiff provides sufficient
identifying information, the U.S. Marshals must make a reasonable effort to locate

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and serve a defendant.”), report and recommendation adopted, 2024 WL 1676804
(E.D. Mich. Apr. 18, 2024); Moore v. Brown, No. 2:23-cv-11298, 2025 WL
452599, at *3 (E.D. Mich. Jan. 13, 2025) (same), report and recommendation
adopted, 2025 WL 451670 (E.D. Mich. Feb. 10, 2025). Such reasonable efforts
would include, for instance, performing an internet search or contacting a former
employer to obtain the defendant’s last known address. See Horn, 2024 WL
1687702, at *2.
The USMS took such reasonable efforts in this case. First, Plaintiff
provided Defendant Warfield’s name and the mailing address for a P.O. Box.
Though this address was sufficient for all other Defendants, it was not for
Warfield.2 Even so, Michigan’s Department of Attorney General—counsel for the
other named Defendants—provided Warfield’s last known address. As Warfield
was a member of the parole board, he was a state employee. It follows that the
Michigan Attorney General’s office, itself an arm of the state, would have the same
access to Warfield’s last known address as MDOC. Yet the summons sent to this
address was returned unexecuted. According to USPS, mail that reads “Unable to
Forward” means that the “[m]ail was undeliverable at address given; no change-of2

Other courts have found a P.O. box mailing address as insufficient for service of
process. See Morgan v. Ortiz, 2024 WL 3824959, at *1 (E.D. Pa. Aug. 13, 2024) (citing Meade
v. Reynolds, 810 F. App’x 86, 88 (3d Cir. 2020) (per curiam)) (“The U.S. Marshals Service
cannot serve a Defendant at a P.O. Box address. It is [plaintiff’s] responsibility, and not the duty
of the Court, the Clerk’s Office, or the Marshal’s Service, to ascertain the addresses of the
Defendants.”).

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address order on file; forwarding order expired.” See USPS.com, Postal Explorer,
https://perma.cc/AU2M-ZV72 (last visited Mar. 7, 2025). See also Jones v.
Flowers, 547 U.S. 220, 245 n.4 (2006) (Thomas, J., dissenting) (using the same
definition).
The USMS therefore took reasonable efforts to locate and serve Warfield.
On the other hand, Plaintiff did not take action even after learning that the last
known address provided to the USMS did not work. In other words, Plaintiff did
precisely what the Sixth Circuit has said he cannot do—that is, “shirk all
responsibility for seeing that the Marshals Service fulfills its duty to effectuate
service.” Reed-Bey v. Pramstaller, 607 F. App’x 445, 450 (6th Cir. 2015).
The case law Plaintiff cites in his response to the Court’s show cause order
accurately states that the USMS has a duty to locate and serve defendants once
plaintiffs have provided identifiable information. Yet the cases do not go as far as
Plaintiff suggests, permitting IFP plaintiffs to abdicate their responsibilities once
they provide a name and mailing address. To that end, the cases are
distinguishable and do not support Plaintiff’s position. See Byrd v. Stone, 64 F.3d
217, 218 (6th Cir. 1996) (finding good cause where no summons form was issued
and the USMS confirmed to the IFP plaintiff that service would be “taken care of”
despite the lack of a summons); Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 44748 (finding good cause where IFP plaintiff did not receive a proper summons form

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after requesting it and where district court failed to order the USMS to serve
process on plaintiff’s behalf despite his request for assistance); Sellers v. United
States, 902 F.2d 598, 602 (7th Cir. 1990) (finding good cause where IFP plaintiff
provided enough information to locate and serve defendants but the USMS did not
use the provided information to attempt service of process); 3 Sidney v. Wilson, 228
F.R.D. 517, 523-24 (S.D.N.Y. 2005) (finding good cause where the USMS did not
attempt to obtain the defendant’s last known address after failing to serve process
at the address the IFP provided).
In short, the fault in this case is not with the USMS—it is with Plaintiff. All
the case law discussed thus far suggests that once the USMS obtains a last known
address and service there is unsuccessful, the USMS has discharged its service
obligations. Because the USMS obtained Warfield’s last known address and
attempted service at the address, it fulfilled its obligation despite being
unsuccessful in serving process at that address. At that point, the onus is on the
IFP plaintiff to take some additional effort to effect service of process. Here,
Plaintiff did nothing. Because Plaintiff “shirk[ed] all responsibility for seeing that

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The other cases from the Seventh Circuit that Plaintiff cites simply apply Sellers. See
Graham v. Satkoski, 51 F.3d 710, 712 (7th Cir. 1995) (remanding to district court to determine
whether the USMS’s efforts to serve process were sufficient following Sellers); Jones-Bey v.
Wright, 876 F. Supp. 195, 197-98 (N.D. Ind. 1995) (holding that Sellers requires the USMS to
attempt to obtain defendant’s last known address, “attempt service of the defendant at that
address, but shall not be required to make further efforts to locate the defendant,” and inform
plaintiff whether service was effective). Here, the USMS’s efforts conformed exactly to Seller’s
requirements as interpreted by the Jones-Bey Court.

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the Marshals Service fulfils its duty to effectuate service,” Reed-Bey, 607 F. App’x
at 450, he has not shown good cause under Rule 4(m).
IV.

RECOMMENDATION
It has been more than ninety days since Plaintiff filed his complaint.

Plaintiff received notice from the Court that failure to timely serve Defendant
Warfield in the absence of good cause could result in a recommendation that
Warfield be dismissed without prejudice under Federal Rule of Civil Procedure
4(m). Because Plaintiff has not shown good cause, the undersigned
RECOMMENDS that Defendant Jerome Warfield be DISMISSED WITHOUT
PREJUDICE.
The parties here may object to and seek review of this Report and
Recommendation, but are required to file any objections within 14 days of service,
as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule
72.1(d). Failure to file specific objections constitutes a waiver of any further right
of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some
issues but fail to raise others with specificity will not preserve all the objections a
party might have to this Report and Recommendation. Willis v. Sec’y of Health
and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

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Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule
72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
etc. Any objection must recite precisely the provision of this Report and
Recommendation to which it pertains. Not later than 14 days after service of an
objection, the opposing party may file a concise response proportionate to the
objections in length and complexity. Fed. R. Civ. P. 72(b)(2), Local Rule 72.1(d).
The response must specifically address each issue raised in the objections, in the
same order, and labeled as “Response to Objection No. 1,” “Response to Objection
No. 2,” etc. If the Court determines that any objections lack merit, it may rule
without awaiting the response.
Date: March 10, 2024

s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge

CERTIFICATE OF SERVICE
The undersigned certifies that this document was served on counsel of
record and any unrepresented parties via the Court’s ECF System or by First Class
U.S. mail on March 10, 2025.
s/Sara Krause
Case Manager
[phone]

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