Opinion
Civil Action 4:18-CV-01714
06-15-2021
ARMONI MASUD JOHNSON, Plaintiff, v. SUPERINTENDENT MCGINLEY, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK United States Magistrate Judge
On May 19, 2021, Plaintiff filed a Motion for Default Judgment, followed by a Motion to Strike on June 3, 2021. (Doc. 61; Doc. 64). These motions arise from Defendants' failure to serve Plaintiff with a brief in support of their Motion to Dismiss. (Doc. 61; Doc. 63; Doc. 64). Defendants filed their Motion to Dismiss on November 6, 2020, and filed their Brief in Support with the Court on November 24, 2020. (Doc. 53; Doc. 58). Defendants' counsel, however, failed to provide the Brief in Support to the Plaintiff. (Doc. 63, at 1). Having not received the Brief in Support, Plaintiff filed a Motion for Default Judgment on May 19, 2021, asserting that the Motion to Dismiss should be deemed withdrawn because no brief in support was filed, thus the Complaint was not responded to in a timely manner. (Doc. 62). In responding to this Motion for Default Judgment, Defendants' counsel realized that he had failed to provide Plaintiff with the Brief in Support of the Motion to Dismiss. (Doc. 62, at 1).
Plaintiff subsequently moved to strike Defendants' Brief in Support of the Motion to Dismiss, arguing that legal mail should not be opened outside his presence and that his failure to receive the Brief in Support demonstrates that the prison is withholding his legal mail. (Doc. 64; Doc. 65). However, Defendants' counsel indicates that the Brief in Support was never sent to the institution. (Doc. 63, at 1). As such, there is no evidence that Plaintiff's mail was opened outside his presence or withheld; it appears that the prison did not receive the Brief in Opposition. (Doc. 63, at 1).
Since Defendants filed a Brief in Support of the Motion to Dismiss with the Court and the Court accepted that brief, Defendants responded to the Complaint in some manner. (Doc. 58). As such, it is respectfully recommended that default judgment is not appropriate and the Motion to Dismiss and Brief in Support are effective. See Zuniga v. Murray, No. 3:06-CV-00252, 2007 WL 87663, at *2 (M.D. Pa. 2007) (“This is not a case where the defendants have not responded to the complaint in any manner. Default judgment is not warranted.”).
Moreover, under Federal law, a defendant may waive the right to reply to a lawsuit brought by a prisoner confined in any jail, prison, or other correctional facility when the lawsuit is brought under Federal law. 42 U.S.C. § 1997e(g)(1). “No relief shall be granted to the plaintiff unless a reply has been filed, ” which may be ordered by the court if the plaintiff has a reasonable opportunity to prevail on the merits. 42 U.S.C. § 1997e(g)(1)-(2). Though the Defendants did reply to Plaintiff's Complaint, a lack of reply would not entitle Plaintiff to default judgment. See 42 U.S.C. § 1997e(g)(1).
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motions for Default Judgment and to Strike are DENIED. (Doc. 61; Doc. 64).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 15, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.