UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT SYZAK,

Plaintiff,

v.

FOOD SERVICE DIRECTOR BENSON,

Defendant.

/

Case No. 15-10928

Honorable Nancy G. Edmunds

OPINION AND ORDER SUSTAINING PLAINTIFF'S OBJECTION

TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

In a report and recommendation ("R & R") issued on March 9, 2017, Magistrate Judge

Stephanie Dawkins Davis has recommended that this case be dismissed without prejudice

in light of the failure of pro se Plaintiff Scott Syzak to take the steps necessary to ensure

that the sole Defendant — Ms. Benson (first name unknown), who allegedly served as the

food service director at the Macomb Correctional Facility at the time of the alleged incidents

giving rise to this suit — was timely served with a summons and a copy of Plaintiff's

complaint. Plaintiff has filed a single objection to the R & R, contending that he has

established good cause for the failure to serve Defendant Benson, and that his status as

an incarcerated prisoner prevents him from taking further steps to ensure the proper

service of his complaint. As discussed briefly below, the Court agrees that Plaintiff has

shown good cause for the U.S. Marshals Service's inability to serve his complaint to date,

and finds that the Marshals Service should make further efforts to serve Defendant Benson

using the information provided by Plaintiff.
The Magistrate Judge has ably recounted the history of the Marshals Service's

attempts to serve Defendant Benson with the complaint. (See R & R at 1-3.) Most

recently, after it was determined that Ms. Benson (i) was employed by an outside vendor,

Aramark, rather than the Michigan Department of Corrections, and (ii) no longer worked at

the Macomb Correctional Facility, the Magistrate Judge issued an order directing the

Marshals Service to serve Ms. Benson at an address in Detroit that evidently is associated

with Aramark. (See 9/17/2015 Order at 1.) When this latest attempt at service again did

not succeed, the Magistrate Judge issued a June 28, 2016 order directing Plaintiff to show

cause why this case should not be dismissed for failure to provide an address at which

Defendant Benson could be served with the complaint. In response, Plaintiff insisted that

since he was incarcerated and lacked access to the internet or other research tools, he had

no means to uncover additional information regarding Defendant Benson's address or

whereabouts, and he requested that the Court or the Marshals Service make further efforts

to locate Ms. Benson.1

 Similarly, in his present objection to the Magistrate Judge's R & R,

Plaintiff maintains that dismissal is unwarranted because he has done all he can to identify

an address at which Defendant Benson might be served, and he again asks that the

Marshals Service be instructed to make further efforts to locate and serve Ms. Benson.

Upon reviewing the R & R, Plaintiff's objection, and the remainder of the record, the

Court finds that Plaintiff has taken sufficient steps to date to avoid the dismissal of this suit

for lack of service, and that he has established the requisite "good cause" under Federal

Rule of Procedure 4(m) for directing the Marshals Service to make another attempt to

1

Plaintiff made a similar request for assistance in a June 16, 2015 motion.

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locate and serve Defendant Benson. Most notably, the record does not disclose precisely

why the latest attempt at service did not succeed — the relevant docket entry shows only

that the summons and complaint were sent by certified mail to "Aramark Ms. Benson" at

the "Macomb Correctional Facility" located at an address on Ryan Street in Detroit, and that

this delivery failed on the ground that there was "NO SUCH NUMBER." (Dkt. 21.) From

this record, it cannot be said whether this failure of service was due to a faulty street

address for an Aramark facility in Detroit, the curious reference to the "Macomb

Correctional Facility" where Ms. Benson previously (but no longer) was employed, or some

other reason. Certainly, this record provides no basis for concluding that Ms. Benson

cannot be located and served through a corporate address for her apparent employer,

Aramark, or that a straightforward inquiry to Aramark would not reveal additional

information concerning Ms. Benson's current employment status and whereabouts.

As correctly observed in the R & R, it is Plaintiff's burden under Rule 4(m) to establish

good cause for a failure to timely serve his complaint, and a plaintiff, even if incarcerated,

"may not remain silent and do nothing to effectuate service." (R & R at 3-4 (internal

quotation marks and citation omitted).) Yet, in Abel v. Harp, No. 03-4474, 122 F. App'x

248, 252 (6th Cir. Feb. 16, 2005), the Sixth Circuit found that an incarcerated plaintiff who

was proceeding in forma pauperis satisfied the "good faith" standard of Rule 4(m) by

"d[oing] what he could to effect personal service through the Marshals Service," including

alerting the Marshals Service to problems in the agency's attempts at service. See also

Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) (explaining that a plaintiff who proceeds in

forma pauperis must take "reasonable steps . . . to identify for the court the defendants

named in the complaint"); Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995) (holding

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that a prisoner proceeding in forma pauperis "need furnish the Marshals Service only with

information necessary to identify the defendants," and that "once [a defendant] former

prison employee is properly identified, the Marshals Service should be able to ascertain 

the individual's current address and, on the basis of that information, complete service"). 

As explained, the Court finds that Plaintiff here has done all he can, at least to date, to

enable the Marshals Service to effect service on Defendant Benson, as he has identified 

Ms. Benson's employer, her former place of employment, and the position she held at the

time of the alleged incidents giving rise to this case. This suffices to establish "good cause"

under Rule 4(m) for extending the time for the Marshals Service to effect service on

Defendant Benson, using the identifying information supplied by Plaintiff.

For these reasons, the Court SUSTAINS Plaintiff's objection [28] to the Magistrate

Judge's report and recommendation [27]. In accordance with this ruling, the Court directs

the U.S. Marshals Service to again attempt service of a summons and a copy of the

complaint upon Defendant Benson at the appropriate Aramark corporate office.2

 If this

attempt should prove unsuccessful, the Marshals Service is instructed to attempt service

at the last known address for Ms. Benson as provided by Aramark.

SO ORDERED.

s/Nancy G. Edmunds

Nancy G. Edmunds

United States District Judge

2

In an earlier September 17, 2015 order, the Magistrate Judge identified Aramark's

address as 18875 Ryan Street in Detroit. It is not clear how this address was determined

or if it is accurate, but the Court requests that the Marshals Service take reasonable steps

to identify an appropriate address for Aramark before attempting to serve Ms. Benson.

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Dated: July 12, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of record

on July 12, 2017, by electronic and/or ordinary mail.

s/Carol J. Bethel

Case Manager

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