McMurry #223416 v. Caruso, et al

Filing 122

ORDER ADOPTING REPORT AND RECOMMENDATION 117 re 110 : Plaintiff's Motion for Alternate Service 110 is DENIED and Plaintiff's claims against Defendants Cohen, Stevenson, Sudhir, Whalen, and Baker are DISMISSED WITHOUT PREJUDICE; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

JOHN HENRY McMURRY,
Plaintiff,
v.

Case No. 1:10-CV-1206

PATRICIA CARUSO, et al.,

HON. GORDON J. QUIST

Defendants.
________________________________/

ORDER ADOPTING
REPORT AND RECOMMENDATION
Plaintiff, a pro se prisoner incarcerated with the State of Michigan, has filed Objections to
Magistrate Judge Ellen Carmody’s January 31, 2013 Report and Recommendation (R & R), in
which she recommended that Plaintiff’s Motion for Substituted Service be denied and that the Court
dismiss Plaintiff’s claims against Defendants Cohen, Stevenson, Sudhir, Whalen, and Baker without
prejudice for failure to effect timely service.
After conducting a de novo review of the R & R, Plaintiff’s Objections, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted and Plaintiff’s claims
against Defendants Cohen, Stevenson, Sudhir, Whalen, and Baker dismissed without prejudice.
The time for service of the summons and complaint is governed by Rule 4(m) of the Federal
Rules of Civil Procedure. That rule provides that “[i]f a defendant is not served within 120 days
after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.” Id.

The magistrate judge concluded that Plaintiff failed to show good cause for failing to serve
Defendants Cohen, Stevenson, Sudhir, Whalen, and Baker within the time prescribed in Rule 4(m)
because Plaintiff took no action to effectuate service on those Defendants for almost one and onehalf years after this Court entered its Order for Partial Service (dkt. #17) on March 23, 2011. The
magistrate judge noted that during this time, Plaintiff neither requested an extension of time to serve
these Defendants nor requested the Court’s assistance in effecting service on them. (R & R at 2.)
In his Objections, Plaintiff contends that he has shown good cause because the Clerk and the
Marshal failed to follow the March 23, 2011 Order for Partial Service, which provides, in relevant
part:
IT IS FURTHER ORDERED that upon receipt of the copies required by this
order, the Clerk shall forward the amended complaint to the U.S. Marshals Service,
which is authorized to mail a request for waiver of service to Defendants in the
manner prescribed by Fed. R. Civ. P. 4(d)(2). If waiver of service is unsuccessful,
summons shall issue and be forwarded to the U.S. Marshals Service for service under
28 U.S.C. 1915(d).
(3/23/11 Order for Partial Service at 2.) The docket report shows that on May 10, 2011, the Clerk
delivered Waiver of Service forms for all remaining Defendants, including Defendants Cohen,
Stevenson, Sudhir, Whalen, and Baker, to the Marshals Service. Several Defendants returned
executed Waiver of Service forms, but Defendants Sudhir, Whalen, and Baker apparently did not
return their forms. Defendants Stevenson and Cohen returned unexecuted forms. (Dkt. ## 39, 48.)
The only other docket entries pertaining to the unserved Defendants show that a summons for
Defendant Cohen was returned unexecuted on September 6, 2011. (Dkt. # 64.) Thus, it appears that
summons were never issued for Defendants Stevenson, Sudhir, Whalen, and Baker.
Plaintiff correctly notes that because he has been granted in forma pauperis status, he is
entitled to rely on the United States Marshal to complete service of process. See 28 U.S.C. § 1915;
Fed. R. Civ. P. 4(c)(3); see also Powell v. Indep. Inventory Serv., Inc., No. 12-10910, 2013 WL
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1668208, at *4 (11th Cir. Apr. 17, 2013) (“Because she proceeded IFP, Powell was entitled to have
the Marshal serve process on her behalf.”). In addition, the Sixth Circuit has held that “the utter
failure of the clerk and the Marshals Service to accomplish their respective duties to issue and serve
process for plaintiff proceeding in forma pauperis constitutes a showing of good cause.” Byrd v.
Stone, 94 F.3d 217, 220 (6th Cir. 1996). It appears that such a failure occurred in this case, at least
with regard to Defendants Stevenson, Sudhir, Whalen, and Baker, because the Marshals Service
never followed up on the Waiver of Service forms for those Defendants and, consequently,
summons were never issued. In addition, it appears that the Clerk failed to issue a summons for
Defendant Stevenson. However, these failures do not automatically establish good cause because
“the behavior of a prisoner proceeding in forma pauperis is relevant to whether good cause exists.”
Freeman v. Collins, No. 2:08-cv-71, 2011 WL 4914873, at *3 (S.D. Ohio Aug. 15, 2011) (citing
Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)). In particular, a plaintiff who, with
knowledge that service has not been timely accomplished or is defective, cannot claim good cause
if he has done nothing to effectuate service. See Vandiver v. Martin, 304 F. Supp. 2d 934, 942–43
(E.D. Mich. 2004) (noting that the plaintiff “did nothing else after Magistrate Judge Komives
ordered the U.S. Marshal to serve Defendants Debruyn and King”).
In the instant case, the Order for Partial Service was entered on March 23, 2011, yet, Plaintiff
failed to seek the Court’s assistance in serving Defendants Cohen, Stevenson, Sudhir, Whalen, and
Baker until October 18, 2012, when he filed his Motion for Alternate Service. During this time,
Plaintiff had access to the docket report, as the Clerk mailed copies to Plaintiff on several occasions
in response to Plaintiff’s request. Thus, Plaintiff should have known that, with the exception of
Defendant Cohen, summonses had not been issued for these Defendants. Moreover, the Motion to
Withdraw Appearance on Behalf of Dr. Vernon Stevenson (dkt. # 92), filed by Chapman and
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Associates, P.C. after that firm mistakenly indicated that it represented Defendant Stevenson—who
had not yet appeared—should have alerted Plaintiff of the need to seek assistance from the Court
in effecting service on Defendant Stevenson, as well as the other unserved Defendants.
Citing his Motion for Substitute Service (dkt. # 12) filed on January 14, 2011, Plaintiff
contends that he did take some action to effect timely service. Plaintiff’s motion preceded the
Court’s Order for Partial Service by more than two months, and the magistrate judge denied the
motion as moot in light of the then-recently-issued Order for Partial Service. (Dkt. # 20.) As noted,
Plaintiff took no further action after that time until he filed his Motion for Alternate Service in
October 2012. Plaintiff also states that he mailed a letter to the Marshals Service on August 30,
2011, regarding the status of service. However, Plaintiff waited more than a year after that time to
request assistance from the Court in effecting service. Under these circumstances, Plaintiff has not
been diligent in effecting service and, thus, has not shown good cause.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued January 31, 2013 (dkt. # 117) is APPROVED AND ADOPTED as the Opinion of this Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Alternative Service (dkt. # 110)
is DENIED, and Plaintiff’s claims against Defendants Cohen, Stevenson, Sudhir, Whalen, and
Baker are DISMISSED WITHOUT PREJUDICE for failure to timely effect service.

Dated: June 3, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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