UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL LONG,

 CASE NO. 2:14-CV-13269

Plaintiff,

 DISTRICT JUDGE ARTHUR J. TARNOW

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

FINCH,

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)

I. Recommendation 

Plaintiff Michael Long has moved for a default judgment after failing to receive an answer to his complaint. (Docs. 6, 8.) Procedural missteps have muddied 

the waters in this case and provide ample reasons for rejecting Plaintiff’s motion. 

Perhaps sensing the case’s peculiarities, Plaintiff has prudently requested alternative relief, asking for thirty days to file his amended complaint. I recommend

DENYING Plaintiff’s motion, but giving him thirty days to file his amended complaint. He should then serve all Defendants with the complaint pursuant to Federal 

Rule of Civil Procedure 4. All government officials must be served under Rule 4(i).

II. Introduction 

Plaintiff is currently incarcerated at the Federal Correctional Institution in 

Milan, Michigan. (Doc. 1); Federal Bureau of Prisons, Find an Inmate, 

http://www.bop.gov/inmateloc/ (last visited Feb. 25, 2015) (enter name in search).

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On August 22, 2014, he filed a civil rights case, pro se, alleging that his work supervisors harassed him after an incident in November 2013. (Doc. 1.) The events involved Plaintiff’s job at the Federal Prison Industries factory at the prison. (Id.) On 

November 21, 2013, he was operating a forklift when the bands on his load snapped 

and the steel he was carrying dropped. (Id.) He left the forklift to check on colleagues nearby and to pick up the debris. He contends that the proper safety standards were ignored in the factory, causing the accident. 

Seeing that he left the forklift running, his supervisor, Defendant Frank 

Finch, “shout[ed] obscenities” at him and stated he would discipline Plaintiff and 

temporarily reduce his pay. (Id.) Humiliated, Plaintiff later went to his immediate 

supervisor, Mr. Gilsdorf, and quit his job. While walking out, he passed Mr. Finch, 

who “got up from his desk and began to verbally assault me again,” Plaintiff explains. (Id.) Mr. Finch now threatened to file an incident report and send him to a 

Special Housing Unit. (Id.)

Before any response to his complaint came in, Plaintiff requested permission 

to amend. (Doc. 4.) He did not attach a copy of the proposed complaint, as required 

by Local Rule 15.1. Instead, his motion explained the changes he wished to make: 

He sought to add Defendants, Larry Huddleston and Cody Maynard, two factory 

managers; and include Defendant Finch’s full name to the caption. (Id.) On October 

21, 2014, Judge Arthur J. Tarnow granted the motion, but also sua sponte dismissed claims against four Defendants: United States of America, Federal Bureau 

of Prisons, prison warden J.A. Terris, and A.W. Programs. (Doc. 5 at 5-6.) This left 

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Defendant Finch as the only remaining Defendant from the first complaint. Plaintiff 

never filed his amended complaint with the Court. He now asserts that he mailed 

the initial complaint to Mr. Finch and the new Defendants on November 10, 2014. 

(Doc. 11 at 1, Exs. A.) The court docket does not indicate the Defendants were 

served.

Receiving no answer, Defendant moved for default judgment. (Doc. 6.) After 

Defendants responded to the motion, Plaintiff filed an amended motion that simply 

changed a date to show he sent the Defendants the complaint on November 10, not

on September 29 as his first motion asserted. (Docs. 6, 8.) Defendants have raised 

the same arguments against both motions and Plaintiff has responded. (Docs. 9, 11.)

III. Analysis

a. Defendant’s Argument

Defendants1 provide three reasons why the Court should not enter default 

judgment. (Doc. 7.) First, Plaintiff’s failure to file his amended complaint caused 

confusion regarding whether Huddleston and Maynard were joined parties and 

what Plaintiff was alleging against all Defendants. (Id. at 7-10.) Second, all three—

Finch, Huddleston, and Maynard—are federal employees, working for Federal Prison Industries, also known by its trade name, UNICOR. (Id. at 3-4.) See also 28 

C.F.R. §345.11(a). To serve them, therefore, Plaintiff had to comply with Federal 

Rule of Civil Procedure 4(i), sending copies to the individual Defendants as well as 

the Attorney General. He did not. Consequently, Defendants argues that default 

1 I refer to Defendants in the plural—despite the ambiguity over who has actually been 

made a party—because Defendant Finch’s counsel represents all of the potential parties. 

(Doc. 7 at 7 & n.3.)

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judgment cannot enter against them. (Id. at 10-11.) Finally, the Prison Litigation 

Reform Act, 42 U.S.C. § 1997e, precludes courts from granting prisoners relief unless the defendants have filed a response to the complaint. Defendant reasons that 

since the Court has not ordered Defendants to respond, it cannot grant Plaintiff default judgment. (Id. at 11.)

b. Analysis

I suggest that Plaintiff is not entitled to default judgment. The Sixth Circuit 

does not favor default, calling it “a drastic step which should be resorted to only in 

the most extreme cases. Where default results from an honest mistake ‘rather than 

willful misconduct, carelessness or negligence’ there is especial need to” set aside 

any default judgments. United Coin Meter Co., Inc. v. Seaboard Coastline RR., 705 

F.2d 839, 845 (6th Cir. 1983) (quoting Ellingsworth v. Chrysler, 665 F.2d 180, 185 

(7th Cir. 1981)). Default can occur when the defendant fails to appear in a case, or 

having appeared, fails to answer the complaint or otherwise defend against it. Fed. 

R. Civ. P. 55(a); see also 10A Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 2681 (3d ed. 1998). The procedures for entering a default 

judgment are formalized in the Federal Rules, having taken shape from historical 

pro confesso decrees in equity and nil dicit judgments at law. See 10A Wright & Miller, supra § 2681; see also Robert Wyness Millar, Civil Procedure of the Trial Court 

in Historical Perspective 367 (1952) (discussing the history of default judgments 

and noting, “A decree pro confesso for want of an answer after due service of process 

was thus the general rule of the American chancery practice”).

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On the rare occasions when it is appropriate, certain procedures must be followed. Under Federal Rule of Civil Procedure 55(b), the court can enter default 

judgment only if the clerk has first entered a default as provided in Rule 55(a). See

Richard v. Bouchard, No. 12-12516, 2013 WL 4417440, at *2 (E.D. Mich. Aug. 15, 

2013) (adopting Report & Recommendation); Lentz v. Loxton, No. 12-12037, 2013 

WL 22954, at *2 (E.D. Mich. May 24, 2013) (adopting Report & Recommendation); 

Friske v. Scutt, No. 07-CV-13747, at *1 (E.D. Mich. July 10, 2008) (adopting Report 

& Recommendation); see also 10A Wright & Miller, supra § 2682. The default entry 

is distinct from the subsequent default judgment. Fed. R. Civ. P. 55. For the clerk to 

enter default, the requesting party must provide an affidavit with specific information. Fed. R. Civ. P. 55(a); E.D. Mich. LR 55.1. No default was entered in the present docket. This oversight provides the first grounds for rejecting Plaintiff’s motion.

Additionally, the status of the parties and the complaint’s content is unclear, 

rendering default judgment inappropriate. Plaintiff’s failure to file his amended 

complaint has created difficulty at two levels. First, the specific allegations will remain somewhat ambiguous until the amended complaint is properly filed. This has 

prevented Finch—the only definite Defendant at this point—from responding. In his 

motion to amend, Plaintiff sought to add Huddleston and Maynard as parties, and 

include Finch’s full name. (Doc. 4 at Pg ID 25.) No other proposed changes appear in 

the motion. However, in response to Defendant’s current arguments, Plaintiff has 

provided a copy of his new complaint. (Doc. 11, Ex. B, Pg ID 99-105.) It includes the 

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changes described in his motion to amend, but also adds a paragraph detailing 

Huddleston’s and Maynard’s role in the incident. (Id. at Pg ID 105.) The record does 

not clearly demonstrate which copy the Defendants received. Plaintiff’s motion for 

default says he served them with the “complaint in this matter,” but his response 

indicates he sent them the “initial complaint.” (Doc. 8 at Pg ID 85; Doc. 11 at Pg ID 

92.) 

Considering the possibility that Finch has not yet seen the new pleading, the 

vagueness surrounding its contents is significant enough to have stymied any response Finch could have made. A reasonable person in Finch’s position could remain uncertain about how to proceed. Moreover, Plaintiff has not claimed the delay 

has prejudiced him. Cf. Enyart v. Karnes, No. 2:09-CV-687, 2010 WL 4683993 (S.D. 

Ohio Nov. 10, 2010), (declining to default parties where record was unclear and 

there was no evidence of prejudice to the plaintiff), Report & Recommendation 

adopted by 2010 WL 5067844 (S.D. Ohio Dec. 6, 2010). I therefore suggest that his 

lack of action was understandable and does not merit default against him.

The vagueness is also important because it has blurred the identities of the 

proper Defendants: have Huddleston and Maynard actually been joined as Defendants? If not, then they cannot be defaulted since Rule 55 allows default only against 

parties. See Saunders v. Bank of America, No. 12 Civ. 9201, 2014 WL 1667001, at 

*1 (S.D. N.Y. Apr. 25, 2014) (“[Rule] 55 precludes entry of default judgment against 

non-parties.”); Lien Tang v. California Reconveyance Co., No. 10-CV-03333, 2011 

WL 1878315, at *2 (N.D. Cal. May 17, 2011) (noting Rule 55 and setting aside a de6

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fault against a non-party); Barrow Music Gp. v. Avista Records, No. 1:10-cv-36, 

2010 WL 603845, at * (S.D. Ohio Dec. 17, 2010) (same), Report & Recommendation 

adopted by 2011 WL 886168, at *1 (S.D. Ohio Mar. 10, 2011).

Even if they are parties, however, default would be improper in these circumstances. A similar situation arose in Enyart v. Karnes, 2010 WL 4683993. There, 

Plaintiff filed a series of motions to amend, which were granted, without ever filing 

the new complaints. Id. at *1. Like the amendments here, the plaintiff there sought 

to clarify party identities and add defendants. The court first addressed disputes 

concerning whether the new defendant had been properly joined. Id. at *2. In light 

of Plaintiff’s stated intent in his motion to add them as parties, and the liberal pro 

se pleading standards, the court found that they were. Nonetheless, the court denied the plaintiff’s request for default, noting that the parties’ status had been ambiguous and the delay was not prejudicial. Id. at *4. 

Regardless of whether Huddleston and Maynard are parties, I suggest that 

default judgment against them is unwarranted. The reasoning in Enyart is persuasive and reflects the well-grounded hesitancy courts should have when faced with 

motions for default. See United Coin Meter Co., 705 F.2d at 845. Neither Huddleston nor Maynard are listed as parties on the docket and it is unclear either has received the new complaint containing the allegations against them. Thus, even if 

they are now parties, they should have the opportunity to respond after being 

properly served.

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Alternatively, default judgment should not enter because Plaintiff failed to 

effect appropriate service of process. “It is axiomatic that service of process must be 

effective under the Federal Rules of Civil Procedure before a default or a default 

judgment may be entered against a defendant.” Maryland State Firemen’s Ass’n v. 

Chaves, 166 F.R.D. 353, 354 (D. Md. 1996). Accordingly, courts reject motions for 

default judgment where the defendants were not served. See Richard, 2013 WL 

4417440, at *2; Almon v. Caplan, No. 2:07-10219, 2008 WL 3010619, at *2-3 (E.D. 

Mich. Aug. 4, 2008); see also 10A Wright & Miller, supra § 2682. This rule applies 

even when those defendants had actual notice of the complaint. See Searcy v. Macomb Cnty. Jail, No. 2:10-CV-11242, 2001 WL 7665794, at *2 (E.D. Mich. Sept. 21, 

2011), Report & Recommendation adopted by 2012 WL 1230271, at *1 (E.D. Mich. 

Apr. 12, 2012); Smith v. Ketchem, No. Civ.A. 1:01CV176, 2002 WL 32096623, at *4 

(N.D. W.V. Mar. 20, 2002).

The required form of service differs for different classes of defendants. Fed. R. 

Civ. P. 4. The relevant group here is federal employees. Finch, Huddleston, and 

Maynard work for UNICOR (Doc. 7 at 3-4; Doc. 11, Ex. B at Pg ID 98-99), a corporation created and wholly-owned by the government. See 18 U.S.C. § 4121 (establishing “Federal Prison Industries” as a “government corporation”). It operates “organizationally within the Bureau of Prisons . . . .” 28 C.F.R. §345.11(a); see also (Doc. 7 

at 3-4, 10.) Courts have thus treated UNICOR employees as federal workers, see 

Barber v. Grow, 929 F. Supp. 820, 822, 824 (E.D. Penn. 1996) (characterizing a 

UNICOR supervisor as a federal employee), and suggested that Federal Rule of Civ8

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il Procedure 4(i) applies to them. See Williams v. Watts, No. 5:08cv68, 2009 WL 

499775, at *1, 5, 10-12 (E.D. Tex. Feb. 27, 2009) (adopting Report & Recommendation).

Federal employees must be served under Rule 4(i). For officers or employees 

sued in an individual capacity—whether or not the individual is also sued in his official capacity—for acts or omissions that occurred during work, the party must 

serve the United States and the individual. Fed. R. Civ. P. 4(i)(3). Serving the United States, for present purposes, requires service on the United States Attorney for

the local district and the United States Attorney General in Washington, D.C. Fed. 

R. Civ. P. 4(i)(1). The individual employee can be served in various ways, but the 

applicable method here was following Michigan’s procedures. Fed. R. Civ. P. 4(e)(1). 

Michigan allows sending the complaint by certified mail, which Plaintiff chose here. 

Mich. Ct. R. 2.105(A). Delivery must be restricted to the addressee and service is 

not complete until “the defendant acknowledges receipt of the mail. A copy of the 

return receipt signed by the defendant must be attached to proof showing service . . 

. .” Id. Individuals unrelated to the government can also be served under this procedure. Fed. R. Civ. P. 4(e); see also Richard, 2013 WL 4417440, at *2 (discussing 

Michigan’s service of process rules).

Plaintiff failed properly to serve process here, whether the Defendants are 

government employees or not. He attempts to sue all Defendant in their individual 

and official capacities. (Doc. 11, Ex. B.) Yet nothing indicates he sent the complaint 

to the Attorney General. Defendants attach an affidavit from a legal technician in 

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the Department of Justice attesting that the Department never received the summons or the complaint. (Doc. 7, Ex. 1.) And as noted above, Plaintiff did not offer 

proof of service on the individual parties until his response to the Defendants’ brief. 

(Doc. 11, Ex. A.) He provides two signed certified mail receipts for each Defendant; 

one from November 2014, when he sent the “initial complaint,” and one from January 2015, when he sent his motion for default judgment. (Id.) They are signed by the 

wrong people. Michigan requires that the receipts display the defendants’ signatures; the slips here do not appear to contain the signature of any Defendant. Additionally, Plaintiff fails to assert that he sent them the amended complaint. Consequently, Defendants never received proper service under Rules 4(e) and 4(i) and default judgment cannot enter against them. See Richard, 2013 WL 4417440, at *2.

Finally, the Prison Litigation Reform Act erects a third barrier to Plaintiff’s 

motion: “No relief shall be granted to the plaintiff [in actions brought by a prisoner] 

unless a reply has been filed.” 42 U.S.C. § 1997e(g)(1). This has teeth here because 

“unlike in the typical civil case, defendants do not have to respond to a complaint 

covered by the PLRA until required to do so by the court . . . .” Jones v. Bock, 549 

U.S. 199, 213-14 (2007). Where the court has not yet ordered a response, and no response has been filed, the Plaintiff cannot obtain a default judgment. See Friske, 

2008 WL 2705505, at *1 (“‘[Section] 1997e(g) bars plaintiff from obtaining an of default . . . because defendants have no obligation to reply to the complaint until ordered by the court.’” (quoting Stevenson v. M.D.O.C., No. 1:07-CV-213, 2007 WL 

1202310, at *1 (W.D. Mich. Apr. 23, 2007); see also Lentz, 2013 WL 2295456, at *2 

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(same). Here, the Court has not ordered a response and Defendants have not provided one. Thus, default judgment is improper.

IV. Conclusion

The confusion in the present case is understandable. Plaintiff, trying to navigate the procedural requirements, perhaps thought his amended complaint did not 

need filing, and that sending the first version to Defendants sufficed. Defendants 

acted reasonably in response. The content of the new allegations is unclear, the new 

Defendants were not properly joined, no Defendant received appropriate service, 

and the Prison Litigation Reform Act bars default judgment. Given the abundance 

of grounds for rejecting the motion, I do not need to analyze yet another possible

reason: Federal Rule of Civil Procedure 55(d). That Rule allows default against the 

United States or its officers “only if the claimant establishes a claim or right to relief by evidence that satisfies the court.” Id.

I therefore recommend DENYING Plaintiff’s motion (Docs 6, 8). He has requested thirty-days to file his amended complaint. (Doc. 11 at Pg ID 93.) I suggest 

granting him this period of time to file the new pleading, after which he should 

serve Defendants under Federal Rule of Procedure 4.

V. Review 

 

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may 

serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party’s objections within 14 days after being 

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served with a copy.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure 

to file specific objections constitutes a waiver of any further right of appeal. Thomas 

v. Arn, 474 U.S. 140, 155; Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,

508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The 

parties are advised that making some objections, but failing to raise others, will not 

preserve all the objections a party may have to this Report and Recommendation. 

Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith 

v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). According to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

magistrate judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. 

Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the 

opposing party may file a concise response proportionate to the objections in length 

and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must 

specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the 

Court determines that any objections are without merit, it may rule without awaiting the response.

Date: February 27, 2015 /S PATRICIA T. MORRIS

Patricia T. Morris

United States Magistrate Judge

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