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Argue v. Burnett

April 1, 2010

SHANNON ARGUE #180822, PLAINTIFF,
v.
DAVE BURNETT, MDOC SPECIAL ACTIVITIES DIRECTOR, IN HIS PERSONAL CAPACITY AND IN HIS OFFICIAL CAPACITY, DEFENDANT.*FN1



The opinion of the court was delivered by: Honorable Paul L. Maloney Chief United States District Judge

HONORABLE PAUL L. MALONEY

Magistrate Judge Carmody

OPINION and ORDER

Overruling the Plaintiff's Objections;

Sustaining in Part and Overruling in Part the Defendants' Objections;

Adopting the R&R in Part and Rejecting it in Part;

Dismissing All Defendants Except Burnett;

Dismissing 1st-Amendment Retaliation Claim as to All Defendants for Failure to State a Claim; Dismissing Class-of-One Equal Protection Claim as to All Defendants for Failure to State a Claim;

Dismissing Money-Damage Claims as to All Defendants in Their Official Capacities; Denying Plaintiff's Request for Additional Time and Assistance to Serve Some Defendants Proceeding pro se,*fn2 Michigan state prisoner Shannon Argue filed the complaint in February 2008; with an extension of time the defendants jointly moved for summary judgment in September 2008, Argue filed an opposition brief in October 2008, and the defendants elected not to file a reply. Pursuant to 28 U.S.C. § 636 and W.D. MICH. LCIVR 72.2(b), this matter was automatically referred to the Honorable Ellen S. Carmody, United States Magistrate Judge, who issued a Report and Recommendation ("R&R") on January 23, 2009, and the defendants filed timely objections on February 6, 2009. The court also finds that the defendants' objections are sufficiently specific and articulated to trigger de novo review of the portions of the R&R to which they have objected.*fn3 On March 9, 2009, the court received Argue's motion for an extension of time in which to file objections; the court granted the motion by order dated March 10, 2009 and filed Argue's proposed objections nunc pro tunc.

The court will overrule Argue's objections and adopt most of the well-reasoned R&R. The court will reject a portion of the R&R, however, on the basis of the defendants' objections. For the reasons stated below, the court will dismiss all defendants except Burnett and will dismiss the retaliation claim for failure to state a claim on which relief can be granted. Surviving against Burnett are Argue's First Amendment / RLUIPA claim and his Equal Protection "class of one" claim.

First, the court will adopt, without review, those portions of the R&R to which no party has objected. See, e.g., Heggie v. MDOC, 2009 WL 594908, *2 (W.D. Mich. March 6, 2009) (Paul L. Maloney, C.J.) ("Where neither party has objected to a portion of the R&R, the court will adopt that portion of the R&R without review."); Lopez v. SSA, 2009 WL 261191, *2 (W.D. Mich. Feb. 4, 2009) ("[T]he failure to file timely specific objections obviates not only de novo district judge review of the R&R, but all district judge review.") (citing Thomas v. Arn, 470 U.S. 140, 141-42 and 149-50 (1985)); Tangwall v. Robb, 2003 WL 23142190, *1 (E.D. Mich. 2003) (Lawson, J.) ("[T]he failure to object to the Magistrate Judge's report releases the court from its duty to independently review the motion.").

Argue objects to the recommendation that his claims against Shields, Bradford, Malone, Aardsma, and D'Epifanio be dismissed without prejudice for failure to effect service of process, see R&R at 17-18. Argue contends that this "would create an undue hardship on him to have to re-file a Complaint and pay an additional filing fee to name the above Defendants." Argue's Objections at 3. Argue asks the court to "reissue the summons and allow Plaintiff another opportunity to serve Defendants Shields, Swierenga, Bradford, Malone, Aardsma, and D'Epifanio." Id. He asserts that "[t]he court has the power to extend the time for filing pleadings" under FED. R. CIV. P. 4(m), FED. R. CIV. P. 6(b), and W.D. MICH. LCIVR 7.1(c).

First, the court rejects Argue's invitation to extend the time for service of the complaint pursuant to FED. R. CIV. P. 6(b). He relies on FED. R. CIV. P. 6(b)(1)(A), which provides as follows:

(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; * * * .

But the plain language of this very rule defeats the plaintiff's argument. FED. R. CIV. P. 6(b)(1)(A) authorizes the court to extend the time "if a request is made, before the original time or its extension expires." Argue did not request an extension, or issuance of new summonses, before the expiration of the summonses, so FED. R. CIV. P. 6(b)(1)(A) is of no avail to him. Contrast Newman v. Coats, 2008 WL 4683430, *2 (E.D. Mich. Oct. 22, 2008) (Komives, M.J.) ("plaintiff's first (July 9, 2008) motion for enlargement of response time was filed before the due date of the response (July 30, 2008); therefore, FED. R. CIV. P. 6(b)(1)(A) governs plaintiff's request.").

The remainder of this subsection, which Argue does not mention, authorizes the court to extend a deadline "on motion made after the time has expired", as here, only "if the party failed to act because of excusable neglect." FED. R. CIV. P. 6(b)(1)(B); see Rogalski v. Pramsteller, 2008 WL 5102893, *1 (W.D. Mich. Dec. 1, 2008) (Scoville, M.J.) ("Under Rule 6(b)(1)(B) . . . , the court may grant an extension of time for good cause. Where, as here, the motion was made after the time has expired, the party must show that he failed to act 'because of excusable neglect.'"). "The determination of excusable neglect is 'an equitable one, taking account of all relevant circumstances surrounding the party's omission.'" Howard v. Nationwide prop. & Cas. Ins. Co., 306 F. App'x 265, 266 (6th Cir. 2009) (Martin, McKeague, D.J. Collier) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).

In determining whether neglect was excusable under this Rule, courts in our circuit typically consider five factors: (1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on the judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control of the party seeking the extension, and (5) whether the late- filing party acted in good faith. Medina v. Columbus State Cmty. Coll., 2008 WL 4411522, *1 (S.D. Ohio Sept. 29, 2008) (Sargus, J.) (citing Nafzinger v. McDermott Int'l, Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer, 507 U.S. 380)), recon. denied, 2008 WL 2906135 (S.D. Ohio Nov. 13, 2008). Our Circuit has cautioned that excusable neglect is a "strict standard which is met only in extraordinary cases." Nicholson v. City of Warren, 467 F.3d 525, 527 (6th Cir. 2006) (citing Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). For the reasons discussed below, the court assumes arguendo that Argue acted in good faith, but he has not shown excusable neglect, FED. R. CIV. P. 6(b)(1)(B), or any other "good cause", FED. R. CIV. P. 4(m), for failing to effect service or seek an extension of time (or new summons or other assistance) before the expiration of the existing summons to the six unserved defendants.*fn4

Second, the court acknowledges that our Local Civil Rule 7.1(c) provides, in relevant part, "In its discretion, the Court may in a particular case shorten or enlarge any time limit or page limit established by these rules, with or without prior notice or motion." But "these rules" refers to the Local Civil Rules, not to the Federal Rules of Civil Procedure. Therefore, Local Civil Rule 7.1(c) does not purport to authorize the court to extend time limits established by the Federal Rules of Civil Procedure.

Third, the court declines Argue's invitation to extend the time for service of the complaint on the unserved defendants pursuant to FED. R. CIV. P. 4(m). That subsection states:

If service of the summon[s] and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

FED. R. CIV. P. 4(m). Under the final clause of FED. R. CIV. P. 4(m), the court would be obligated to extend the time for service if Argue showed good cause for failing to effect service during the 120-day life of the summonses. See generally CMS North America, Inc. v. DeLorenzo Marble & Tile, Inc., 521 F. Supp.2d 619, 621 (W.D. Mich. 2007) (Maloney, J.) ("[T]he word 'shall' always means that the action in question is mandatory, not optional.") (citing, inter alia, US v. Jones, 495 F.3d 274, 277 (6th Cir. 2007)). Under the preceding clause of FED. R. CIV. P. 4(m), the court is authorized, but not required, to "direct that service be effected within a specified [additional] time" rather than dismissing the complaint without prejudice as to unserved defendants.

Argue asserts that he has shown good cause for failing to effect service of the complaint on the six other defendants within the 120-day life of the summonses. He argues as follows:

While delay is certainly not encouraged, the Court often grants extensions of time where the delaying party has not shown bad-faith and the delay will not substantially prejudice the opposing party. See, e.g., Johnson v. Harpster, 66 F.R.D. 103 (ED Tenn 1975); Rooks v. American Brass Co., 26 F.3d 166 (6th Cir. 1959); Schram v. O'Conner, 2 F.R.D. 192 (ED Mich 1941).

[T]he delay in serving the Defendants was due to no fault of his own. Plaintiff provided this court wi[th] the address he had for the Defendants. The Defendants may have changed jobs and as such since Plaintiff is incarcerated he does not have access to that information. Plaintiff asks that he be given additional time in which to obtain these addresses and serve the above named Defendants.

Argue's Objections at 4-5. While mindful of the unique obstacles and delays sometimes faced by incarcerated litigants, the court determines that Argue has not shown good cause for failing to effect service, or at least move for an extension of time or a new summons, before the summonses expired. Summonses for the six unserved defendants were issued and delivered to the U.S. Marshals for service on April 15, 2008, and were returned unexecuted on June 20, 2008 as to six defendants (Shields, Swierenga, Bradford, Malone, Aardsma, and D'Epifanio). See Document 5. More than eight months passed and Argue did nothing -- so far as the record reflects -- to try to have the remaining defendants served or to ask for an extension of time in which to serve them. Even proceeding pro se and from within the confines of a prison, mere inaction or inadvertence generally will not excuse such a lack of reasonable diligence and attention. See, e.g., Dallio v. Hebert, 2009 WL 2258964, *12 and *20-21 (N.D.N.Y. July 28, 2009) (although plaintiff was incarcerated and proceeding pro se, the court dismissed his claims against a certain defendant because he failed to effect service on that defendant within the time required by Fed. R. Civ. P. 4(m) and corresponding Local Civil Rule, noting elsewhere, "when a plaintiff is proceeding pro se, 'all normal rules of pleading are not absolutely suspended.'") (quoting Stinson v. Sheriff's Dep't of Sullivan Cty., 499 F. Supp.2d 259, 262 and n.9 (S.D.N.Y. 1980)). Therefore, the court will not issue new summonses or take other action with regard to the six unserved defendants at this late hour.

Argue has not objected to the R&R's suggestion that his claims for monetary damages against all nine served defendants -- Burnett, Armstrong, Anderson, Berghuis, Smith, Minnerick, Chaffee, Harry and Henry -- in their official capacities be dismissed due to sovereign immunity, R&R at 5-6, and that outcome is required as well. See Jonaitis v. Morrison, 2008 WL 151252, *2 (W.D. Mich. Jan. 14, 2008) (Maloney, J.) (the doctrine of sovereign immunity, which is represented by but is not derived solely from or limited by the Eleventh Amendment, bars money-damage claims against the State or against its employees in their official capacities, without regard to whether the plaintiff is a citizen of the state) (citing Hamilton's Bogarts, Inc. v. ...


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