Clark #386257 v. Quellete et al

Filing 8

ORDER LIFTING STAY and REGARDING SERVICE: the Clerk is to arrange for service of this order and the complaint upon the defendants; signed by Magistrate Judge Ray Kent (fhw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
MICHAEL CLARK,
Plaintiff,
v.

Case No. 1:24-cv-823
Honorable Hala Y. Jarbou

MARGARET QUELLETE et al.,
Defendants.

____________________________/
ORDER LIFTING STAY AND FOR SERVICE
This is a prisoner civil rights action. The Court previously reviewed the complaint under
28 U.S.C. §§ 1915(e) and 1915A and 42 U.S.C. § 1997e(c), to determine whether it was frivolous,
malicious, failed to state a claim upon which relief could be granted or sought monetary relief
against a defendant that was immune from such relief. The Court then referred the case to the Pro
Se Prisoner Civil Rights Litigation Early Mediation Program and entered an order staying the case
for any purpose other than mediation. Thereafter, this case was removed from the Pro Se Prisoner
Civil Rights Litigation Early Mediation Program because Defendants did not enter a limited
appearance within the deadline set by the Court. Accordingly,
IT IS ORDERED that the stay of this proceeding that was entered to facilitate the
mediation is LIFTED.
IT IS FURTHER ORDERED that because the Court granted Plaintiff leave to proceed
in forma pauperis in an order entered on August 15, 2024, (ECF No. 4), Plaintiff is responsible for
paying the entire $350.00 filing fee in installments, in accordance with 28 U.S.C. § 1915(b). See
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled in other part by

LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013); Hampton v. Hobbs, 106 F.3d 1281 (6th
Cir. 1997). Plaintiff must pay the filing fee through monthly payments of 20 percent of the
preceding month’s income credited to Plaintiff’s prison trust fund account. See 28 U.S.C.
§ 1915(b)(2). Accordingly, each month that the amount in Plaintiff’s trust account exceeds $10.00,
the agency having custody of Plaintiff shall collect 20 percent of the preceding months’ income
and remit that amount to the Clerk of this Court. The agency shall continue to collect monthly
payments from Plaintiff’s prisoner account until the entire filing fee is paid.
IT IS FURTHER ORDERED that the 90-day period for service set forth in Federal Rule
of Civil Procedure 4(m) shall run, starting with the date of this order.
IT IS FURTHER ORDERED that the Clerk shall forward the complaint to the U.S.
Marshals Service, which is authorized to mail a request for waiver of service to Defendant
Quellete1 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 Defendant Quellete 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

1

Plaintiff’s allegations are sufficient to warrant service on Unknown Party, referred to as the
Lakeland Correctional Facility Optometrist. However, the Court is unable to order service on this
Defendant because Plaintiff has not provided sufficient information to identify Defendant.
Although the United States Marshals Service is expected to make a reasonable effort to serve
identified Defendants on behalf of plaintiffs proceeding in forma pauperis, the Marshals Service
is not required to identify the individuals to be served. See Byrd v. Stone, 94 F.3d 217, 219 (6th
Cir. 1996) (“[W]hen a plaintiff is proceeding in forma pauperis the court is obligated to issue
plaintiff’s process to a United States Marshal who must in turn effectuate service upon the
defendants . . . once reasonable steps have been taken to identify for the court the defendants named
in the complaint.” (emphasis added)).
2

by the Court, Defendant Quellete 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 Defendant
Quellete has filed an appearance, the Court will enter a case management order to govern further
proceedings in this case.

Dated:

/s/ Ray Kent
Ray Kent
United States Magistrate Judge

September 24, 2024

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