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Annabel v. Erichsen

United States District Court, E.D. Michigan, Southern Division

August 15, 2017

ROBERT ANNABEL, Plaintiff,
v.
JORG ERICHSEN, et al., Defendants.

          STEPHANIE DAWKINS DAVIS MAGISTRATE JUDGE

          OPINION AND ORDER SUSTAINING OBJECTION [87], HOLDING REPORT [86] IN ABEYANCE, REQUIRING AN ATTEMPT OF SERVICE ON DEFENDANTS BROWN, ROBBINSON, AND WEBERG, AND AMENDING CAPTION

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE

         Michigan 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.

         BACKGROUND

         The 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.

         LEGAL STANDARD

         Federal 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).

         DISCUSSION

         Rule 4(m) states in pertinent part as follows:

If a defendant is not served within 120[1] 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.

         It has 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 pauper).

         The 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.

         The 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 Cir. 1987)).

         To 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 ...


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