Opinion
8:23-cv-06620-MGL-BM
04-17-2024
Reggie Manning, Jr., Plaintiff, v. A/W Canning, Sgt. Fleshman, Sgt. McFadden, Sgt. Moore, Ofc. Land, Q.M.H.P. Bruce Oberman, Defendants.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Plaintiff's motion for default judgment. ECF No. 30. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the McCormick Correctional Institution. ECF No. 13. He is proceeding in this action pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983 on the standard form. ECF No. 1. The Court authorized service of process by Order dated December 21, 2023, and directed the United States Marshal Service (“USMS”) to accomplish service. ECF No. 7. The Summons was issued that same day and forwarded to the USMS. ECF No. 10. Therefore, the 90-day period for service of process under Rule 4(m) began on that date, Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010), and service was due on March 20, 2024. On January 26, 2024, the USMS filed a summons returned executed, showing that Defendants Oberman, Moore, McFadden, Fleshman, and Canning were served on January 17, 2024. ECF No. 17. The answer deadline for those Defendants was February 7, 2024. On February 6, 2024, counsel for Defendants filed a motion for extension of time to file an answer, which the Court granted on February 7, 2024, making the response due on or before February 28, 2024. ECF Nos. 22; 24. On February 15, 2024, the USMS filed a summons returned executed, showing that Defendant Land was served on February 7, 2024. ECF No. 26. On February 28, 2024, counsel for Defendants filed an Answer to the Complaint on behalf of all six Defendants. ECF No. 27. Plaintiff filed a motion for default judgment on March 5, 2024. ECF No. 30. Defendants have not filed a response. In his motion, Plaintiff contends that he filed the Complaint on December 21, 2023; that Defendants were served on February 7, 2024; and that more than twenty days have elapsed since the date on which the Defendants were served with no answer being filed. Id. at 1.
Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.” Fed.R.Civ.P. 55(a). Plaintiff's motion should be denied because, as explained above, Defendants filed an Answer within the time permitted under the applicable Federal Rules of Civil Procedure and this Court's Orders. Accordingly, Defendants are not in default. Plaintiff contends that “Defendants have failed to answer or otherwise defend as to Plaintiff's complaint, or serve a copy of any answer or any defense which it might have had, upon [Plaintiff].” ECF No. 30 at 1. Plaintiff's contention is without merit. As noted, Defendants filed an Answer, which was entered on the docket on February 28, 2024. ECF No. 27. Defendants attached to their Answer a certificate of service, which noted the Answer was served on Plaintiff by United States mail at Plaintiff's prison address. ECF No. 27-1.
Therefore, based upon the foregoing, it is recommended that Plaintiff's motion for default judgment be DENIED.
IT IS SO RECOMMENDED.