Parsons v. Paige et al

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID PARSONS,
Plaintiff,
v.
MARIO PAIGE, JR., et al.,
Defendants.
____________________________/
Case No. 24-10247
Judith E. Levy
United States District Judge
Curtis Ivy, Jr.
United States Magistrate Judge
REPORT AND RECOMMENDATION TO ENTER A DEFAULT
JUDGMENT AGAINST DEFENDANT MARIO PAIGE, JR.
Plaintiff David Parsons brought this prisoner civil rights case alleging a
violation of his First and Eighth Amendment rights, among others. (ECF Nos. 1,
16). The Honorable U.S. District Judge Judith E. Levy referred the case to the
undersigned to resolve all pretrial matters under 28 U.S.C. § 636(b)(1)(A) and
(b)(1) (B). (ECF No. 11).
I. 	PROCEDURAL HISTORY
Plaintiff commenced this action by filing his Complaint on January 30,
2024, and filed an Amended Complaint on May 30, 2024. (ECF Nos. 1, 16). On
June 7, 2024, a summons was issued for all Defendants, including Defendant
Mario Paige, Jr. (“Defendant Paige”). (ECF No. 19). On January 16, 2025,
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Plaintiff requested a summons for Defendant Paige, which was issued on January
23, 2025. (ECF No. 40).
On March 10, 2025, Plaintiff filed his Ex Parte Motion to Permit Alternative
Service of the Summons and Complaint (ECF No. 45) and indicated that Defendant
Paige was no longer employed by the Michigan Department of Corrections, and it
did not plan to defend him in this lawsuit. (Id.) Plaintiff hired a private
investigator who learned Defendant Paige’s new address and attempted service of
process on multiple occasions but was told by an adult relative that Defendant
Paige was not home at the time and that he worked odd hours. (ECF Nos. 45-2,
45-3). Counsel verified with the United States Postal Service that there had been
no change of address on file for Paige. (ECF No. 45-4). Plaintiff sought to serve
Defendant Paige by posting the summons and complaint on the door of his current
address, which the Court initially denied without prejudice due to the lack of an
attempt to serve him by certified mail. (ECF No. 46).
On April 8, 2025, Plaintiff refiled his motion for alternative service after
attempting to serve Defendant Paige via certified mail with return receipt twice,
with United States Postal Service tracking information indicating that one of the
attempts was delivered and left with an individual on March 22, 2025. (ECF Nos.
47, 47-5, 47-6). Accordingly, the Court granted Plaintiff’s motion for alternative
service and directed Plaintiff to post a copy of the summons, complaint, and order
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on Defendant Paige’s door and mail copies via certified mail with return receipt
requested and delivery restricted to the same. (ECF No. 48). On April 29, 2025,
the Summons and Complaint Return of Service (ECF No. 49) was received
indicating that the summons and complaint was posted on Defendant Paige’s door.
Plaintiff moved for default judgment on June 16, 2025, which the Court
denied without prejudice because default judgment is unavailable to a prisoner
plaintiff unless the Court has ordered a defendant to respond. (ECF Nos. 52, 58).
In a June 17, 2025, Order, the Court found that Plaintiff had a reasonable
opportunity to prevail on the merits and ordered Defendant Paige to respond to the
complaint by July 11, 2025. (ECF No. 58). The Court noted that although 42
U.S.C. § 1997e(g)(1) prohibits default against a defendant in a prisoner civil rights
lawsuit, when the Court orders a defendant to respond to the complaint, they must
do so. (Id.) And Defendant Paige was warned that failure to timely respond to the
compliant could result in default judgment against him. (Id.)
On August 7, 2025, Plaintiff renewed his motion for a default judgment.
(ECF No. 59). The Court denied the motion without prejudice as the record did
not reflect that Defendant Paige had been served with a copy of the Court’s June
17, 2025, Order by certified mail with return receipt requested or by posting on his
door. (ECF No. 61). Plaintiff was ordered to serve a copy of the June 17, 2025,
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and August 26, 2025, Orders, and Defendant Paige’s deadline to respond was
extended until September 30, 2025. (Id.)
Defendant Paige failed to respond to Plaintiff’s complaint by the Court’s
September 30, 2025, deadline and on November 4, 2025, Plaintiff filed a Request
for Clerk’s Entry of Default with an attached affidavit attesting to service efforts,
but did not include a sum certain. (ECF Nos. 68–69). The Clerk of Court entered
a Notice of Denial of Request for Clerk’s Entry of Default (ECF No. 70) because a
Clerk’s Entry of Default may not be entered on a prisoner civil rights case. (Id.)
For the reasons set forth below, the undersigned recommends that a default
judgment be entered against Defendant Paige in an amount to be determined by the
Honorable Judith E. Levy.
II. 	ANALYSIS
The Prison Litigation Reform Act provides, in relevant part:
(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.
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42 U.S.C. § 1997e(g); see Bell v. Washington, No. 22-2132, 2023 WL 6438597, at
*3 (6th Cir. Sept. 29, 2023), cert. denied, 144 S. Ct. 1366 (2024), reh’g denied,
144 S. Ct. 2675 (2024) (“A defendant has no obligation to respond to a prisoner
civil rights action unless a district court orders the defendant to do so based on a
finding “that the plaintiff has a reasonable opportunity to prevail on the merits.”)
(citing Smith v. Heyns, No. 2:12-CV-11373, 2013 WL 1163172, at *16 (E.D.
Mich. Jan. 10, 2013)).
In Smith v. Taulton, the court noted that “although no rule or statute
authorizes entry of default judgment for failure to obey court orders in general, a
court has the inherent authority to do so.” Civ. Act. No. 17-11934, 2019 WL
4254377, at *1 (E.D. Mich. July 10, 2019), report and recommendation adopted,
2019 WL 4241858 (E.D. Mich. Sept. 6, 2019) (citing Dell, Inc. v. Advicon
Comput. Servs., Inc. No. 06-11224, 2007 WL 2021842, at *5 (E.D. Mich. July 12,
2007) (string citing to numerous U.S. Circuit Courts of Appeals who have upheld
the entry of default judgment when a party fails to respond to court orders)
(citations omitted)). Since the Sixth Circuit has not addressed the circumstances
under which a court may enter default judgment for failure to abide by court
orders, the Smith and Dell Courts relied upon the Sixth Circuit test for entering a
default judgment as a discovery sanction:
(1) whether the conduct at issue was the result of willfulness, bad
faith, or fault; (2) whether the adversary was prejudiced by the
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disobedient party's conduct; (3) whether the disobedient party was
warned that failure to cooperate could lead to default judgment; and
(4) whether less drastic sanctions were imposed or considered before
entry of default judgment.
Id. (citing Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.
1990)).
Applying the four factors outlined in Smith and Dell to this case, Defendant
Paige failed to respond to the complaint despite being ordered to do so in June
2025 and again in August 2025 including an extension to the deadline to respond.
(ECF Nos. 58, 61). The Court also warned Defendant Paige that the failure to
timely respond to the compliant could result in default judgment against him.
(ECF No. 58). Plaintiff hired a private investigator who identified Defendant
Paige’s new address and verified that he lived there by speaking to an adult relative
at the house several times, thus Defendant Paige’s failure to respond to this Court’s
orders result from willfulness, bad faith, or, at the very least, his fault. Defendant
Paige’s failure to participate in this litigation has prejudiced Plaintiff because the
matter has been pending for nearly two years without getting beyond this nascent
stage, and Plaintiff cannot be required to wait indefinitely or continue to incur
litigation expenses when it appears clear that Defendant Paige does not intend to
participate in this action. Finally, the Court has considered imposing less drastic
sanctions, but considering Defendant Paige’s complete failure to respond to this
Court’s orders as directed, a less drastic sanction is unavailable. Thus, the Court
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finds that all the factors as outlined in Smith, Dell, and Bank One of Cleveland,
weigh in favor of entering default judgment against Defendant Paige. Smith, 2019
WL 4254377, at *1; Dell, Inc., 2007 WL 2021842, at *5; Bank One of Cleveland,
N.A., 916 F.2d at 1073; see also United States v. Griffin, No. 12-13927, 2013 WL
1843779 (E.D. Mich. Mar. 20, 2013), adopted, 2013 WL 1831323 (E.D. Mich.
Apr. 30, 2013) (applying the four factors as outlined in Dell, the Court entered
default judgment when a defendant failed to respond to a motion for summary
judgment despite being ordered to do so and was warned about possible sanctions).
III. 	RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that
default judgment be entered against Mario Paige, Jr., and in favor of David
Parsons, in an amount to be determined by Judge Levy.
The parties here 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
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and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of
Teachers Loc. 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).
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 lack merit, it may rule
without awaiting the response.
Date: November 10, 2025 	s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that this document was served on counsel of
record and any unrepresented parties via the Court’s ECF System or by First Class
U.S. mail on November 10, 2025.
s/Sara Krause
Case Manager
(810) 341-7850
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