UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM SHORT,

Plaintiff, CIVIL ACTION NO. 09-CV-12323

vs.

DISTRICT JUDGE PATRICK J. DUGGAN

SHERIFF DAN HINES, SGT. MAGISTRATE JUDGE MONA K. MAJZOUB

WALKER, LT. CARMONEY,

OFFICER WICKHAM, OFFICER

BRITTIN, OFFICER WELTER, OFFICER

KELLENBERGER, RHONDA SCHULTZ,

NANCY YIRKU, JACKIE COX, MICHAEL

BURGESS, CARRIE DASH, COORDINATED

CARE PLLC, and JOHN DOE,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

I. RECOMMENDATION: This Court recommends that Defendant Welter be dismissed from

this action pursuant to Federal Rule of Civil Procedure 4(m).

II. REPORT:

Plaintiff filed the instant complaint on June 16, 2009. (Docket no. 1). He subsequently filed

an amended complaint on October 8, 2009. (Docket no. 20). Because over 120 days had passed

without Plaintiff serving Defendant Welter and other Defendants, the Court issued a show cause

order. (Docket no. 29). Plaintiff responded stating that the Defendants have been served with

process. (Docket no. 33). Defendants also filed a response to the show cause order stating that

Plaintiff served a copy of the summons and complaint on Defendant Welter at the Jackson County

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Jail on January 11, 2010. (Docket nos. 34, 35). However, because Defendant Welter is no longer

employed with Jackson County Jail, service could not be effected. (Docket no. 35). Since Plaintiff

made a reasonable effort to serve Defendant Welter, the Court found good cause for extending the

time for service. Thus, on April 19, 2010 the Court entered an order granting Plaintiff an additional

forty-five days in which to serve Defendant Welter. (Docket no. 38).

On January 18, 2011 the Court issued a second show cause order directing Plaintiff to show

cause on or before February 1, 2011 why Defendant Welter should not be dismissed pursuant to

Federal Rule of Civil Procedure 4m. (Docket no. 52). Plaintiff failed to respond to the show cause

order. At this time an executed return of service against Defendant Welter has not been filed and

no appearance has been made on behalf of Defendant Welter.

Federal Rule of Civil Procedure 4(m) provides that if a defendant is not served within 120

days after the complaint is filed, the court must dismiss the action without prejudice against that

defendant or order that service be made within a specified time. Fed.R.Civ.P. 4(m). Plaintiff has

not served Defendant Welter within the time allowed under Rule 4(m) or within the extension

provided to him by the Court. By failing to respond to the Court’s January 18, 2011 order to show

cause, Plaintiff has failed to show cause why this Defendant should not be dismissed from this

action. Accordingly, Defendant Welter should be dismissed from this lawsuit without prejudice.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

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

but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28

U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). 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

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Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). Filing of objections which 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 & 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 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 #1,” “Objection #2,” etc. Any objection must

recite precisely the provision of this Report and Recommendation to which it pertains. Not later

than fourteen days after service of an objection, the opposing party must file a concise response

proportionate to the objections in length and complexity. The response must specifically address

each issue raised in the objections, in the same order and labeled as “Response to Objection #1,”

“Response to Objection #2,” etc.

Dated: May 27, 2011 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon William

Short and Counsel of Record on this date.

Dated: May 27, 2011 s/ Lisa C. Bartlett 

Case Manager

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