United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING THE
GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE
filed a pro se civil rights complaint against
Defendants on June 23, 2016. Dkt. No. 1. Plaintiff is a
federal prisoner currently confined at the United States
Federal Correctional Institution in Salters, South Carolina.
For the reasons that follow, the complaint is DISMISSED
WITHOUT PREJUDICE because of plaintiff's failure to
prosecute the case by serving the defendants in a timely
filed a lawsuit against seven defendants. The Court reviewed
plaintiff's complaint, dismissed the United States of
America and two individuals as defendants and ordered
Plaintiff to provide copies and documentation needed to
effectuate service in July 2016. Dkt. No. 5.
Plaintiff failed to comply with the July order, the Court
ordered Plaintiff to show cause why his case should not be
dismissed on December 13, 2016. Dkt. No. 6.
January 9, 2017, this Court issued a second dismissal order,
dismissing defendant Stone from the complaint. The Court also
ordered Plaintiff to supply the Court with sufficient copies
of his complaint so the United States Marshal Service could
serve the remaining defendants. Dkt. No. 8.
Marshal Service received the requested copies of the
complaint on May 18, 2017. Dkt. No. 13. The United States
Marshal Service then attempted service on Defendants Murphy
and Bowman. On June 28, 2017, the United States Marshal
Service received the Waiver of Service returned as unexecuted
as to both Defendants Murphy and Bowman. Dkt. No. 14.
Defendant Murphy no longer works at the Bureau of Prisons,
and there is no current Milan employee with the last name
Bowman. Dkt. No. 14, pg. 1 (Pg. ID 76).
August 10, 2017, this Court entered an Order for Plaintiff to
Show Cause Why This Case Should Not be Dismissed for Failure
to Prosecute. Dkt. No. 15. Plaintiff responded on September
15, 2017. Dkt. No. 16.
November 3, 2017, this Court dismissed the order to show
cause and again directed the Marshal Service to attempt to
serve the remaining two defendants. Dkt. No.
Marshal Service received the order directing
service/reservice on February 2, 2018. Dkt. No. 19. However,
there is nothing in the record to indicate that either
defendant has been served.
December 21, 2018, this Court entered a second Order for
Plaintiff to Show Cause Why This Case Should Not be Dismissed
for Failure to Prosecute. Dkt. No. 21. Plaintiff filed two
responses on January 14, 2019 and January 22, 2019. Dkt. No.
22, 23. In his responses, plaintiff argues that the Marshal
Service's attempt to serve the defendants at their last
place of employment at the Federal Correctional Institution
(FCI) in Milan, Michigan was sufficient service under federal
and state law since the waiver of service was received by a
staff member at FCI-Milan.
Federal Rules of Civil Procedure require a plaintiff to serve
each defendant a summons and a copy of the complaint.
Fed.R.Civ.P. 4(c)(1). Where, as here, a plaintiff has been
authorized to proceed in forma pauperis, “the
court may direct that service be effected by a United States
Marshal.” Fed.R.Civ.P. 4(c)(2). A plaintiff like Mr.
Staples who alleges a claim against a United States employee
in an individual capacity must serve both the United States
and the employee in accordance with the procedures outlined
in Rule 4(e), (f), or (g). See Fed.R.Civ.P. 4(i)(3). The
relevant provision in this case would be Fed.R.Civ.P. 4(e),
which requires that the summons be personally served upon the
defendant. Fed.R.Civ.P. 4(e)(2). A plaintiff has 90 days
after filing the complaint to serve process. See
Fed. R. Civ. P. 4(m). If the plaintiff fails to meet this
requirement, the court may dismiss the action against the
unserved defendant without prejudice. Id. Upon a
showing of good cause for the failure, however, the court
must extend the time for service. Id.
argument that service on the two defendants was accomplished
when the Marshal Service attempted to serve them at their
last place of employment is unavailing. See Bernier v.
Trump, 299 F.Supp.3d 150, 158-59 (D.D.C. 2018)(District
Court should have dismissed prisoner's Bivens
claim against former chief physician of the Federal Bureau of
Prisons (BOP) for lack of personal jurisdiction based on
insufficient service of process, where attempted service to
physician at the BOP's central office by United States
Marshal on behalf of prisoner was unsuccessful given that,
according to BOP employees, physician no longer worked for
the BOP). Although Fed.R.Civ.P. 4(e)(2)(C) permits the
service of a complaint upon “an agent authorized by
appointment or by law to receive service of process, ”
plaintiff is not entitled to avail himself of this provision
because he made no showing of an agency relationship between
the Federal Bureau of Prisons or any of its employees and the
two defendants. SeeStaples v. United
States, No. 18-6070, ---- F. App'x----; 2019 WL
413746, at * ...