Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

1 Robinson v. Caruso; 08-14069

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HEATHER ROBINSON, Case No. 08-14069

Plaintiff, Lawrence P. Zatkoff

vs. United States District Judge

PATRICIA CARUSO, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

DISMISSAL FOR FAILURE TO TIMELY EFFECTUATE SERVICE

AND MOTION FOR SUBSTITUTION OF PARTIES (Dkt. 128)

I. PROCEDURAL HISTORY

Plaintiff, an inmate currently in the custody of the Michigan Department of

Corrections, brings this action under 42 U.S.C. § 1983, claiming a violation of her

rights under the United States Constitution. (Dkt. 1). District Judge Lawrence P.

Zatkoff referred this case to the undersigned for all pretrial purposes. (Dkt. 60).

Plaintiff filed a motion to allow attorney general to accept service on behalf

of defendant Z. Campbell, DDS on February 28, 2011. (Dkt. 125). The Office of

the Michigan Attorney General filed a response on March 4, 2011, indicating that

Zolton Campbell, a former MDOC dentist, died on December 15, 2008, before

being served with this lawsuit. Based on the foregoing, the Court ordered plaintiff

to show cause in writing why the dismissal of defendant Campbell should not be

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 1 of 7 Pg ID 1147
Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

2 Robinson v. Caruso; 08-14069

recommended, given that he is deceased. (Dkt. 127). The Court warned plaintiff

that failure to satisfactorily or timely comply with the show cause order would

result in a recommendation that the action against defendant Campbell be

dismissed. (Dkt. 127). The Court also denied plaintiff’s motion to order the

Attorney General to accept service on behalf of defendant Campbell, given that he

is deceased. (Dkt. 127). 

On April 19, 2011, plaintiff filed a response to the show cause order and a

motion to substitute parties. (Dkt. 128). In her response, plaintiff says that she

was not notified of defendant Campbell’s death by the Attorney General or the

U.S. Marshal. According to plaintiff, the failure to provide her with more timely

notice precluded her “from filing [her motion for substitution] years ago and

arguing her briefs differently.” (Dkt. 128). According to plaintiff, she has been

prejudiced because the failure to provide timely notice eliminated “a vital

defendant in her legal arguments.” According to plaintiff, defendant Campbell is

vital to her case because he delayed emergency medical treatment, refused to

timely see her, and caused her infection to intensify and left her in unnecessary

pain. (Dkt. 128, see also Dkt. 1). In addition, defendant Campbell provided her

with antibiotics to which she was allergic, endangering her life and health. (Dkt.

128, see also Dkt. 1). Based on the foregoing, plaintiff requests substitution,

however, she does not identify the party to be substituted. (Dkt. 128).

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 2 of 7 Pg ID 1148
Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

3 Robinson v. Caruso; 08-14069

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s claims against defendant Campbell be dismissed without prejudice for

failure to effect service of process and failure to identify a party to be substituted,

and that her motion for substitution be DENIED.

II. ANALYSIS AND CONCLUSION

 Federal Rule of Civil Procedure 4(m) provides that if service is not

effectuated within 120 days the Court must dismiss the action without prejudice as

to that defendant. “Absent a showing of good cause to justify a failure to effect

timely service, the Federal Rules of Civil Procedure compel dismissal.” Byrd v.

Stone, 94 F.3d 217, 219 (6th Cir. 1996), citing, Habib v. General Motors Corp., 15

F.3d 72, 73 (6th Cir. 1994). It is plaintiff’s burden to establish good cause for

failing to timely effect service. Habib, 15 F.3d at 73. Further, Local Rule 41.2

provides that if the parties have not taken action within a reasonable time, the

Court may enter an order dismissing the case for lack of prosecution.

Plaintiff failed to timely serve the summons and complaint after being

warned that failure to do so could result in dismissal. However, her failure to do so

is not entirely her fault, given that she had no notice of defendant Campbell’s

death. On March 4, 2011, when defendants filed a response to plaintiff’s motion to

allow the Attorney General to accept service on behalf of defendant Campbell,

plaintiff was informed of his death. (Dkt. 126). It has been well over two months

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 3 of 7 Pg ID 1149
Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

4 Robinson v. Caruso; 08-14069

since plaintiff received such notice. Based on this notice, plaintiff filed a motion

for substitution. (Dkt. 128). “If an action was commenced by the filing of a

complaint but a party named in the complaint dies, ... before being served with

process, substitution is available, but, as in any instance of substitution, process

must be served on the new party to acquire in personam jurisdiction.” Sloan v.

Overton, 2010 WL 398108, *2 (D. Kan. 2010), quoting, 7C Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1951 (3d ed.

2007). Here, plaintiff does not identify the proper party to be substituted and

served and thus, an action cannot be continued. Therefore, the undersigned

recommends that plaintiff’s complaint be dismissed without prejudice pursuant to

Rule 4(m) and Local Rule 41.2, along with her failure to identify a party to be

substituted pursuant to Rule 25 to be served. See Habib, 15 F.3d at 73 (“Absent a

showing of good cause to justify a failure to effect timely service, the Federal

Rules of Civil Procedure compel dismissal.”). 

Further, the undersigned notes that plaintiff has not suffered any prejudice

for several reasons. First, as set forth above, any dismissal entered would be

without prejudice. Second, based on the substantive decisions previously made in

this case by Judge Zatkoff, it is unlikely that plaintiff’s claims of deliberate

indifference against defendant Campbell would have survived a motion to dismiss

or a motion for summary judgment. For example, the Court previously held that

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 4 of 7 Pg ID 1150
Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

5 Robinson v. Caruso; 08-14069

“Accepting all of Plaintiff’s factual averments as true... the Court concludes that

Plaintiff was provided regular access to dental treatment, and she merely disagrees

over the various courses of treatment offered. Further, the Court finds that any

missteps in Plaintiff’s treatment do not rise above the level of negligence and were

therefore not constitutionally deficient.” (Dkt. 110, p. 6). In addition, the Court

adopted the undersigned’s conclusions regarding defendants’ motion for summary

judgment:

Plaintiff does not provide any verifying medical evidence

to establish that the treatment she received was so

woefully inadequate as to violate her Eighth Amendment

rights or that the delay in treatment caused a serious

medical injury. While plaintiff claims that she was denied

medical/dental treatment from mid-2005 through 2007,

the record evidence shows that she received regular,

consistent care and treatment. No medical evidence in the

record suggests that any alleged delay in treatment cause

plaintiff harm that would not have otherwise occurred,

given plaintiff’s chronic dental issues caused by chronic

acid reflex. * * * Plaintiff’s claim of alleged deliberate

indifference is merely a case of disagreement with the

course of treatment provided, which is insufficient to

establish an Eighth Amendment violation.

(Dkt. 101, p. 18; see also Dkt. 109). Based on the foregoing, plaintiff is not

prejudiced by the dismissal of defendant Campbell.

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 5 of 7 Pg ID 1151
Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

6 Robinson v. Caruso; 08-14069

III. RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS that plaintiff's

complaint be DISMISSED without prejudice pursuant to Rule 25, Rule 4(m), and

Local Rule 41.2 and that her motion for substitution be DENIED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and 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). Pursuant to Local Rule

72.1(d)(2), any objections must be served on 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), Local Rule 72.1(d). 

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 6 of 7 Pg ID 1152
Report and Recommendation

Dismissal for Failure to Serve/Motion for Substitution

7 Robinson v. Caruso; 08-14069

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: May 25, 2011 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on May 25, 2011, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Michael R. Dean, Brian J. Richtarcik, Randall A.

Juip, Ronald W. Chapman, and Ronald E. Wagner, and I certify that I have mailed

by United States Postal Service the paper to the following non-ECF participant(s):

Heather Robinson, # 309247, HURON VALLEY COMPLEX - WOMEN’S, 3511

Bemis Road, Ypsilanti, MI 48197.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

2:08-cv-14069-LPZ-MJH Doc # 129 Filed 05/25/11 Pg 7 of 7 Pg ID 1153