Opinion
22-11992
11-04-2024
ANTONIO LYNN FLUKER, JR., Plaintiff, v. GARY CARR, Defendant.
SEAN F. COX, J.
ORDER FOR THE U.S. MARSHALS SERVICE TO USE REASONABLE EFFORTS TO SERVE DEFENDANT GARY CARR
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
Plaintiff Antonio Lynn Fluker, Jr., proceeding pro se and in forma pauperis, sues Gary Carr, alleging that he violated the Right to Financial Privacy Act (RFPA). ECF No.5. The Honorable Sean F. Cox referred the case to this Court for all pretrial matters under 28 U.S.C. § 636(b)(1). ECF No. 31.
28 U.S.C. § 1915(d) requires that officers of the court “issue and serve process” when a plaintiff is proceeding in forma pauperis, and Federal Rule of Civil Procedure 4(c)(3) provides that the court appoint the Marshals Service to serve process in these cases. Together, Rule 4(c)(3) and 28 U.S.C. § 1915(d) “stand for the proposition that when a plaintiff is proceeding in forma pauperis the court is obligated to issue plaintiff's process to a United States Marshal who must in turn effectuate service upon the defendants, thereby relieving a plaintiff of the burden to serve process....” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). See also Donaldson v. United States, 35 Fed.Appx. 184, 185 (6th Cir. 2002) (holding that the district court has a statutory responsibility to issue an in forma pauperis plaintiff's service to the Marshal).
The Court granted Fluker's application to proceed in forma pauperis and ordered the U.S. Marshals Service to serve Defendant Carr by August 22, 2024. ECF No. 7; ECF No. 33, PageID.120. The Marshals Service tried to serve Defendant Carr by mailing the summons, copies of the complaint, and a waiver of service form to his employer - Fifth Third Bank. See ECF No. 35; ECF No.36. It was returned as unexecuted. Id.
The Marshals Service must now use reasonable efforts to locate and personally serve Carr within 60 days. See Johnson v. Herren, No. 2:13-cv-583, 2013 WL6410447, at *2-4 (S.D. Ohio Dec. 9, 2013) (ordering the Marshals Service to take reasonable steps to locate defendant's address through an internet search and by consulting with defendant's former employer); Reed-Bey v. Pramstaller, No. 06-CV-10934, 2013 WL 1183301, at *2 (E.D. Mich. Mar. 21, 2013) (Marshals Service was ordered to personally serve defendants after a fourth waiver request was returned unexecuted). The Marshals Service must inform the Court of the results of its attempt to personally serve Carr by December 13, 2024.
NOTICE TO PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed.R.Civ.P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.