UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL KITCHEN, 

 

 Plaintiff, Civil Action No. 14-12883 

 Honorable Lawrence P. Zatkoff 

 Magistrate Judge David R. Grand 

v. 

 

DANIEL HEYNS, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DENY 

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT [30] 

On July 23, 2014, Plaintiff Michael Kitchen (“Plaintiff”), an inmate at the Alger 

Maximum Correctional Facility, filed his pro se civil rights complaint against numerous 

Michigan Department of Corrections (“MDOC”) officials. (Doc. #1). In short, Kitchen 

challenges the confiscation of certain of his property, his transfer to another prison facility, and 

the MDOC’s adoption and use of a Segregation Incentive Program (“SIP”). (Docs. #1, 6). In 

total, he has named 20 individuals as Defendants in this action. Kitchen paid the filing fee 

required to commence this action and did not request assistance serving his complaint. (7/28/14 

dkt. entry). On July 28, 2014, Kitchen filed an amended complaint (Doc. #6) which, under the 

particular circumstances described in this Court’s prior Report and Recommendation, it has 

found supplements, rather than supplants, his original complaint. (Doc. #24 at 2-4).1

 

Presently before the Court is Kitchen’s Motion for Default Judgment against all 

Defendants. (Doc. #30). Kitchen claims that a default judgment is appropriate because he 

“served all the Defendants with Summons and Complaint” and none of them filed an answer 

 

1

 Defendants’ objection to this finding remains pending. (Doc. #26). 

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within 21 days as he claims they were required to do. (Id.). 

Even assuming that Kitchen properly served the Defendants,2

 he would not be entitled to 

a default judgment. Kitchen’s motion for default judgment ignores that this case is governed by 

the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e, and that under that statute a 

prison official sued by an inmate is not required to file a response to the inmate’s complaint 

unless ordered to do so by the Court. The relevant section of the PLRA provides as follows: 

(g) Waiver of reply 

(1) Any defendant may waive the right to reply to any action brought by a 

prisoner confined in any jail, prison, or other correctional facility under 

section 1983 of this title or any other Federal law. Notwithstanding any 

other law or rule of procedure, such waiver shall not constitute an 

admission of the allegations contained in the complaint. No relief shall be 

granted to the plaintiff unless a reply has been filed. 

(2) The court may require any defendant to reply to a complaint brought 

under this section if it finds that the plaintiff has a reasonable opportunity 

to prevail on the merits. 

42 U.S.C. §1997e(g). As the Eastern District of Michigan has previously held, “While the Court 

‘may require any defendant to reply to a complaint brought under this section if it finds that the 

plaintiff has a reasonable opportunity to prevail on the merits,’ until such time as this happens, 

none of the defendants in this matter are obligated to answer the complaint.” Boling v. 

Corrections Medical Service, 2007 WL 2515222, at *1 (E.D. Mich. Aug. 31, 2007) (internal 

citations omitted). Thus, because Defendants were not directed by the Court to reply to 

Kitchen’s complaint, they had no obligation to do so, and the fact that none of them has yet filed 

such an answer does not subject them to entry of a default judgment. 42 U.S.C. §1997e(g)(2). 

 

2

 Kitchen filed certificates of service for the Defendants, indicating that he served them by 

providing copies of his complaint (and, later, his amended complaint) to his Prison Counselor 

and/or Assistant Resident Unit Supervisor “to be placed in institutional mailbox” (for each of the 

Defendants who work at his present facility) and/or to be placed in the regular U.S. Mail (for 

each of the Defendants who do not work at his present facility). (Docs. #11, 12, 14). 

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For the reasons stated above, IT IS RECOMMENDED that Kitchen’s Motion for 

Default Judgment (Doc. #30) be DENIED. 

Dated: November 18, 2014 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation, any 

party may serve and file specific written objections to the proposed findings and 

recommendations set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. 

Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of 

appeal. Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th 

Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for 

the Court’s appellate review; raising some objections but not others will not preserve all 

objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 

1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). 

Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 

72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on November 18, 2014. 

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 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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