Vandiver v. Martin

• Decision Date: 12 February 2004
• Docket Number: No. 03-CV-70778.,03-CV-70778.
• Citation: 304 F.Supp.2d 934
• Parties: Jerry VANDIVER, Plaintiff, v. Bill MARTIN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

304 F.Supp.2d 934

Jerry VANDIVER, Plaintiff, v. Bill MARTIN, et al., Defendants.

No. 03-CV-70778.

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

February 12, 2004.

Jerry VanDiver, E.C. Brooks Correctional Facility, Muskegon Heights, MI, pro se.

Diane M. Smith, Michigan Department of Attorney General, Corrections Divison, Lansing, MI, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS

CLELAND, District Judge.

This case was referred to United States Magistrate Judge Donald A. Scheer pursuant to 28 U.S.C. § 636(b)(1)(B). There are two pending motions to dismiss in this case, one filed by Defendants Bill Martin, Jann Epp, Betty Glaspen, and another filed by Defendant Correctional Medical Services [Dkt. 24 & 25]. Magistrate Judge Scheer issued a report and recommendation on December 16, 2003. His report recommends dismissing the complaint against Defendants Debruyn and King for Plaintiff's failure to properly serve Defendants within 120 days after the filing of the complaint under Federal Rule of Civil Procedure 4(m). (12/16/03 R & R at 1.) The report also recommends granting both motions to dismiss for failure to exhaust pursuant to 42 U.S.C. § 1997e(a). (Id. at 1.)

Plaintiff filed timely objections to the magistrate judge's report and recommendation, and Defendants have not filed responses to his objections. For the reasons set forth below, the court will adopt the magistrate judge's report and recommendation. It will dismiss, without prejudice, the complaint against Defendants Debruyn and King for failure to effect service under Fed.R.Civ.P. 4(m) and it will grant the two pending motions to dismiss based on Plaintiff's failure to exhaust administrative remedies.

I. BACKGROUND

Plaintiff is a prisoner in the custody of the Michigan Department of Corrections and is currently incarcerated at the E.C. Brooks Correctional Facility. Plaintiff filed this action under 42 U.S.C. § 1983, on February 27, 2003, against Defendants, who are, or were, all employed by the Michigan Department of Corrections. Plaintiff claims that Defendants were indifferent to his serious medical needs regarding his feet and footwear while he was incarcerated at the Southern Michigan Correctional Facility in February 2001. Plaintiff alleges that Defendants' deliberate indifference toward his health resulted in his increased injury and suffering in violation of the Eight Amendment of the United States Constitution. Plaintiff seeks damages, a declaratory judgement, and injunctive relief against Defendants.

On February 26, 2003, Magistrate Judge Paul J. Komives granted Plaintiff's motion to proceed in forma pauperis [Dkt. # 2]. In the same order, Magistrate Judge Komives ordered the U.S. Marshal to serve a copy of the complaint and summons on Defendants, including Defendants Debruyn and King. The U.S. Marshal Service mailed copies of the summons and complaint to Defendants Debruyn and King on February 27, 2003 [Dkt. # 4]. On March 10, 2003, both summonses were returned to the U.S. Marshal unexecuted because Defendants Debruyn and King no longer worked at the Michigan Department of Corrections [Dkt. 5 & 6]. There is no evidence that Plaintiff took any action regarding service of process on Defendants Debruyn or King, from March 10, 2003 until July 14, 2003. However, on July 15, 2003, Plaintiff requested that the clerk enter a default against Defendants Debruyn and King, despite the fact that these Defendants had not been served [Dkt. # 32]. Three days later, Plaintiff's request for an entry of default against Defendants Debruyn and King was denied because these Defendants were never served [Dkt. # 33]. During the five months following the court's denial of Plaintiff's request for entry of default, from July 18, 2003, through December 16, 2003, Plaintiff apparently took no action regarding service of process on Debruyn and King. Plaintiff offers no evidence of any attempts to ensure proper service of Defendants Debruyn and King, despite notice that they had not been served.

II. STANDARDS

A. Service of Process Under Rule 4(m) of Federal Rules of Civil Procedure

Federal Rule of Civil Procedure 4(m) governs the time limit for service of process on a defendant. Its relevant language provides:

If service of the summons 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).

B. Failure to Exhaust Administrative Remedies under 42 U.S.C. § 1997(e)

Under 42 U.S.C. § 1997e(a), "[n]o action may be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). As long as the prison system has an administrative process that will review a prisoner's complaint, the prisoner must exhaust his prison remedies. Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir.1999). To comply with the exhaustion requirement, a prisoner must file a grievance against the person or persons he ultimately seeks to sue. Curry v. Scott, 249 F.3d 493, 505 (6th Cir.2001).

C. Review of Magistrate Judge's Report and Recommendations

The filing of timely objections requires the court to "make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Walters, 638 F.2d 947 (6th Cir.1981). This de novo review, in turn, requires this court to re-examine all the relevant evidence previously reviewed by the magistrate to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1). The court may "receive further evidence" if desired. Id.

A general objection, or one that merely restates the arguments previously presented is not sufficient to alert the court to alleged errors on the part of the magistrate judge. An "objection" that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an "objection" as that term is used in this context. A party who files timely objections to a magistrate's report in order to preserve the right to appeal must be mindful of the purpose of such objections: to provide the district court "with the opportunity to consider the specific contentions of the parties and to correct any errors immediately." Walters, 638 F.2d at 949-50. The Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), a habeas corpus case. The Supreme Court noted that "[t]he filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." Id. at 147, 106 S.Ct. 466 (footnote omitted). Furthermore, "[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all objections a party may have." Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.1987).

III. DISCUSSION

A. Failure to Properly Serve Defendants Debruyn and King Under Rule 4(m)

Plaintiff's first four objections relate to the issue of whether Plaintiff has fulfilled his burden to ensure service of process under Fed.R.Civ.P. 4(m). First, he argues that the Michigan Department of Corrections ("MDOC") should have accepted service on behalf of Defendants Debruyn and King. Second, he claims that it was the prison's responsibility to inform the court why the summons was returned unexecuted. Third, he argues that he was "unaware of his failure to serve [the] summons and complaint on defendant[s] King and Debruyn." (Pet'r. Obj. at 4.) Fourth, he claims that MDOC intentionally refused to accept service for Defendants Debruyn and King because he had exhausted his administrative remedies with regard to those Defendants.

Because Plaintiff is proceeding in forma pauperis, these objections are governed by the Sixth Circuit's holding in Byrd v. Stone, 94 F.3d 217 (6th Cir.1996), a case cited by the magistrate judge. See also 28 U.S.C. § 1915(d) (requiring officers of the court to issue and serve all process for in forma pauperis plaintiffs). In Byrd, the plaintiff was a disabled man formerly employed by the U.S. Department of the Army Tank Automotive Command ("TACOM") who sued TACOM under Title VII of the Civil Rights Act of 1964. Id. at 218. The plaintiff in Byrd, like Plaintiff in this case, was proceeding in forma pauperis. Id. After the plaintiff in Byrd obtained in forma pauperis status, the clerk's office alerted the plaintiff that his summons would be forwarded to the U.S. Marshal's Office for completion of service. Id. The plaintiff subsequently contacted the U.S. Marshal's Office one week later to inquire whether service of process had been completed, and the U.S. Marshal's office told him that the matter was being "taken care of" even though the Marshal Service had not received a summons, nor attempted to effectuate service on the defendant. Id. Consequently, the plaintiff in Byrd was misled into believing that a summons and complaint would be served. Id.

Two months later, the district court granted the defendant's motion to dismiss based on the plaintiff's failure to effect service of process within 120 days as required by Rule 4(m). The lower court rejected...