Jenkins v. Michigan Department of Corrections et al

Filing 81

OPINION AND ORDER Adopting 78 Report and Recommendation to Dismiss without Prejudice Plaintiff's Claims Against Patrick M. Clark for Failure to Effect Timely Service and to Dismiss this Action. Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Van Jenkins,
Plaintiffs,
v.

Case No. 14-cv-11812
Hon. Judith E. Levy
Mag. Judge Anthony P. Patti

Michigan Department of
Corrections, et al.,
Defendants.
________________________________/
OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [78] TO DISMISS WITHOUT PREJUDICE
PLAINTIFF’S CLAIMS AGAINST PATRICK M. CLARK FOR
FAILURE TO EFFECT TIMELY SERVICE AND TO DISMISS
THIS ACTION
Plaintiff Van Jenkins is a Michigan Department of Corrections
(“MDOC”) inmate.

On May 6, 2014, he filed a pro se amended

complaint against defendants Patrick M. Clark, Officer Fox, Erika T.
Saxton, Officer Bradley, Gary Edwards, Fern Bean [sic], Adrian Green,
and A. White. (Dkt. 2.) The Court granted plaintiff’s request to proceed
in forma pauperis on his claims. Thereafter, waivers of service were
returned executed for all defendants except defendants Clark and

Green. (See Dkt. 11; Dkt. 12; Dkt. 13; Dkt. 14; Dkt. 15; Dkt. 16; Dkt.
18; Dkt. 23.) On September 10, 2014, the Court ordered that the U.S.
Marshals again attempt to serve defendants Clark and Green, and a
waiver was returned executed as to defendant Green on October 7,
2014. (Dkt. 35.) The waiver was returned unexecuted as to defendant
Clark, noting that he no longer worked for MDOC. (Dkt. 37.)
After this second attempt at service, plaintiff took no action for the
next eleven months. Thus on August 18, 2015, the Court issued a showcause order as to why the case should not be dismissed as to defendant
Clark. (See Dkt. 70.) The Court requested that plaintiff explain why an
extension of time should be allowed to effect service and to provide a
reasonable timeline. (Id.) Plaintiff timely responded, arguing that he
was entitled to service by the U.S. Marshals pursuant to his status as
an in forma pauperis prisoner under 28 U.S.C. § 1915. (Dkt. 77.) He
also contends that defendant Clark breached his duty to the court by
failing to provide an updated address and that the MDOC interfered
with his legal mail and denied wages he was due.

(Id.)

He seeks

appointment of counsel in order to properly litigate the case. (Id.)

2

This matter is before the Court on Magistrate Judge Anthony P.
Patti’s September 23, 2015 Report and Recommendation.

(Dkt. 78.)

The Magistrate Judge recommends dismissing, without prejudice,
plaintiff’s claims against defendant Clark under Federal Rule of Civil
Procedure 4(m) and dismissing the case, because defendant Clark is the
only remaining defendant. (Id.)
No party filed objections to the Report and Recommendation, and
the time for doing so has expired. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ.

P.

72(b)(2).

The

failure

to

object

to

the

Report

and

Recommendation waives any further right to appeal. Smith v. Detroit
Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). The
failure to object also relieves this Court from its duty to review this
matter independently. Thomas v. Arn, 474 U.S. 140, 149 (1985). The
Court

has

nonetheless

thoroughly

reviewed

the

Report

and

Recommendation and relevant parts of the record, and agrees with the
conclusions of the Magistrate Judge.
Accordingly,

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The Magistrate Judge’s Report and Recommendation is adopted.
Plaintiff’s claims against defendant Clark are dismissed without
prejudice. Furthermore, the case is dismissed.
IT IS SO ORDERED.

Dated: October 21, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 21, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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