Cary #269436 v. MDOC et al

Filing 7

ORDER REGARDING PARTIAL SERVICE: dismissing defendant MDOC; within 14 days, plaintiff shall file a copy of this order and sufficient additional copies of the complaint for service upon the remaining defendants; upon receipt of the copies, the Clerk is to arrange for service of this order and the complaint upon the remaining defendants; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

BRYAN ALLEN CARY,
Plaintiff,
v.

Case No. 1:16-cv-1429
Honorable Paul L. Maloney

MICHIGAN DEPARTMENT OF
CORRECTIONS et al. ,
Defendants.
____________________________________/
ORDER FOR PARTIAL DISMISSAL
and PARTIAL SERVICE
In accordance with the Opinion filed this date:
IT IS ORDERED that Plaintiff’s action against Defendant MDOC be DISMISSED WITH
PREJUDICE on grounds of sovereign immunity pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and 42
U.S.C. § 1997e(c).
IT IS FURTHER ORDERED that Plaintiff’s state-law claim for ethnic intimidation be
DISMISSED WITHOUT PREJUDICE. The Court declines to exercise supplemental jurisdiction over
the claim because it raises a novel question of state law.
IT IS FURTHER ORDERED that, in accordance with Administrative Order No. 03-029,
the Clerk shall return to Plaintiff with a copy of this order one copy of the complaint and any exhibits.

IT IS FURTHER ORDERED that, in accordance with W.D. Mich. LCivR 10.4 and
Administrative Order 03-029,1 Plaintiff shall, immediately upon receipt of this order, request that the prison
make 4 copies of the complaint and exhibits for service upon Defendants Campbell, Smith, Fenby, Collins,
and Beecher.2 Plaintiff is responsible for the cost of the copies. If Plaintiff does not have sufficient funds
to pay for the copies, the Michigan Department of Corrections provides loans for legal copies. See Mich.
Dep’t of Corr., Policy Directive 05.03.116.
IT IS FURTHER ORDERED that within fourteen (14) days of this order, Plaintiff shall file
with the Court the requisite number of copies of the complaint and exhibits along with a copy of this order
OR an affidavit explaining why Plaintiff is unable to provide the requested copies within the fourteen-day
period. Should the Court find that the prison failed to make copies upon Plaintiff’s request, the Court will
direct the Clerk to make such copies as may be necessary and to charge the Michigan Department of
Corrections for the cost of copying at the Court’s usual rate of $.50 per page.
IT IS FURTHER ORDERED that Plaintiff’s failure to submit the requested copies within
the time provided by the Court or an affidavit explaining why Plaintiff is unable to provide the requested
copies may result in the dismissal of his action without prejudice by the Court.
IT IS FURTHER ORDERED that upon receipt of the copies required by this order, the
Clerk shall forward the complaint to the U.S. Marshals Service, which is authorized to mail a request for

1

When service is to be made by the United States Marshal, as in this case, the Court’s local rules require
litigants to provide sufficient copies of their documents for service when the documents are filed. W.D. Mich. LCivR
10.4. Under Administrative Order 03-029, Plaintiff was excused from providing additional copies of his complaint until
the Court determined that service was warranted.
2

The Court lacks sufficient information at this juncture to order service on Defendant Unknown DRF Chaplain.

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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).
IT IS FURTHER ORDERED that the remaining Defendants shall file an appearance of
counsel (individual Defendants may appear pro se if they do not have counsel) within 21 days of service
or, in the case of a waiver of service, 60 days after the waiver of service was sent. Until so ordered by the
Court, no Defendant is required to file an answer or motion in response to the complaint, and no default
will be entered for failure to do so. See 42 U.S.C. § 1997e(g)(1). After a Defendant has filed an
appearance, proceedings in this case will be governed by the Court’s Standard Case Management Order
in a Prisoner Civil Rights Case.

Dated:

January 11, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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