Opinion
Civil Action 20-512
01-04-2021
CORDIRO R. BROWN, Plaintiff, v. JOHN WETZEL, MALINDA ADAMS, RICHARD COON, and KARAN FEATHER, PHILLIP MCCRACKEN, PAMALA BEHR, and EMMANUELLA FELIX, Defendants.
CHRISTY CRISWELL WIEGAND, DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 106
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Cordiro R. Brown (“Plaintiff”), an inmate currently incarcerated at State Correctional Institution Mercer (“SCI-Mercer”), brings this pro se civil rights action. Presently before the Court is Plaintiff's Motion for Default Judgment as to Defendant Pamela Behr (“Behr”). ECF No. 106. For the reasons that follow, the Motion for Default Judgment should be denied.
II. REPORT
Plaintiff initiated this action by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) on April 9, 2020. ECF No. 1. The Court provisionally granted the IFP Motion, subject to Defendants challenging whether Plaintiff, who has three strikes under the Prison Litigation Reform Act, is in fact under imminent danger of serious physical injury within the contemplation of 28 U.S.C. § 1915(g). ECF No. 15. Thereafter, Plaintiff's original Complaint was filed on June 11, 2020. ECF No. 16.
On June 30, 2020, Plaintiff filed an Amended Complaint as of right. ECF No. 22. He then filed another Amended Complaint on July 31, 2020, which appears to be identical to his previously filed Amended Complaint. ECF No. 32.
In the instant Motion, Plaintiff requests the entry of default judgment against Defendant Behr, arguing that she did not respond to his Amended Complaint pursuant to Federal Rule of Civil Procedure 12. ECF No. 106. Behr filed a Response, arguing that the Motion should be denied because counsel for Behr has entered her appearance in this action and she has joined in a pending Motion to Revoke In Forma Pauperis Status and to Dismiss for Lack of Exhaustion (“Motion to Revoke/Dismiss”). ECF No. 121.
Upon review, the Motion for Default Judgment should be denied. As Behr correctly points out, she jointly filed the pending Motion to Revoke/Dismiss, ECF No. 75, which requests that Plaintiff's IFP status be revoked or that the Court dismiss his claims for failure to exhaust his administrative remedies. ECF No. 75. In the event that the Motion to Revoke/Dismiss is denied, the Court will enter a scheduling order for Defendants to respond to Plaintiff's Amended Complaint as appropriate. Therefore, the Motion for Default Judgment is without merit.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.