United States District Court, E.D. Michigan, Southern Division
STEPHANIE DAWKINS DAVIS MAGISTRATE JUDGE
OPINION AND ORDER SUSTAINING OBJECTION , HOLDING
REPORT  IN ABEYANCE, REQUIRING AN ATTEMPT OF SERVICE ON
DEFENDANTS BROWN, ROBBINSON, AND WEBERG, AND AMENDING
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
state prisoner Robert Annabel filed a pro se civil rights
complaint under 42 U.S.C. § 1983. The Court referred the
case to Magistrate Judge Stephanie Dawkins Davis, who ordered
Plaintiff to show cause why she should not recommend
dismissal as to Defendants Robbinson, Brown, and Weberg.
Plaintiff filed objections which Magistrate Judge Davis
construed as a response to the order. Before the Court is
Magistrate Judge Davis's Report and Recommendation that
the Court dismiss Plaintiff's claims against Robbinson,
Brown, and Weberg with prejudice pursuant to Rule 41(b).
Having examined the record and considered Plaintiff's
timely objections de novo, the Court will sustain the
objections in part, hold the Report in abeyance, and order
one final attempt of service on Robbinson, Brown, and Weberg.
Report properly details the events giving rise to
Plaintiff's action. ECF 86, PgID 670-74. The Court will
adopt that portion of the Report.
Rule of Civil Procedure 72(b) governs the review of a
magistrate judge's report. A district court's
standard of review depends upon whether a party files
objections. The Court need not undertake any review of
portions of a Report to which no party has objected.
Thomas v. Arn, 474 U.S. 140, 153 (1985). De novo
review is required, however, if the parties "serve and
file specific written objections to the proposed findings and
recommendations." Fed.R.Civ.P. 72(b)(2). In conducting a
de novo review, "[t]he district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions." Fed.R.Civ.P. 72(b)(3).
4(m) states in pertinent part as follows:
If 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. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
been more than a year since the Court granted Plaintiff's
application to proceed in forma pauperis and directed the
U.S. Marshal to serve the defendants without prepayment of
costs. See Abel v. Harp, 122 F.App'x 248, 251
(6th Cir. 2005) (quoting 28 U.S.C. § 1915(d), which
requires “[t]he officers of the court [to] issue and
serve all process, and perform all duties in such
cases” after granting a plaintiff leave to proceed as a
Michigan Department of Corrections (MDOC) designated
Robbinson and Brown as “unknown, ” and refused to
accept service on their behalf. ECF 25, 26. Defendant Weberg
was initially misidentified as Merrianne Weberg, so the Court
re-ordered service. ECF 45.
Court must consider whether Plaintiff has shown good cause
for his non-compliance with the 120-day service period.
Lockhart v. Holiday Inn Exp. Southwind, 531
F.App'x 544, 549 (6th Cir. 2013). “Absent a showing
of good cause to justify a failure to effect timely service,
the Federal Rules of Civil Procedure compel dismissal.”
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). To
establish “good cause” for his failure to timely
serve a defendant, a pro se plaintiff must show that he has
not “remain[ed] silent and do[ne] nothing to effectuate
such service.” Abel, 122 F.App'x at 252
(quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th
date, Plaintiff has yet to provide full names and addresses
for the three unserved defendants despite Magistrate Judge
Davis's repeated admonition that “the onus
remain[ed] on [Plaintiff] to discover and submit sufficient
information for service of all defendants he has named in his
lawsuit” in the event the U.S. Marshal could not
effectuate service. ECF 86, PgID 671. With the ...