Opinion
Case No. CIV-18-75-SLP
11-14-2018
CONNIE DOWNEY, Plaintiff, v. JAMES WEIR, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner appearing pro se, has filed this action under 42 U.S.C. 1983 alleging various violations of his constitutional rights. Pursuant to an order entered by United States District Judge Scott L. Palk this matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C § 636(b)(1)(B).
In his Third Amended Complaint, Mr. Downey named two "unknown" defendants. See ECF No. 30. On September 13, 2018, the Court ordered Plaintiff to file a motion to substitute the identities of the unknown defendants no later than October 15, 2018. (ECF No. 49). On October 1, 2018, Mr. Downey identified "Unknown Defendant No. 1" as Megan Gable (ECF No. 54) and on October 10, 2018, the Court ordered a substitution of Ms. Gable as a party to the lawsuit. (ECF No. 57). At that time, the Court reminded Plaintiff of his October 15, 2018 deadline to identify "Unknown Defendant No. 2." (ECF No. 57).
At issue is Plaintiff's Motion for Default Judgment against both "unknown defendants" (ECF No. 52). Plaintiff argues that default judgment is warranted because neither "unknown" defendant had filed an Answer or dispositive motion within 60 days of service pursuant to the Court's instruction in ECF No. 32. Plaintiff correctly noted that the Court's Order specifically stated that each defendant was to "file an answer or dispositive motion within sixty (60) days of service." (ECF No. 32:2). But at the time Mr. Downey filed ECF No. 52, neither "unknown" defendant had been served. In the Court's October 10, 2018 Order, the Court stated that upon the substitution of Ms. Gable as "Unknown Defendant No. 1," she must file an Answer or dispositive motion within 60 days of being served. (ECF No. 57:2). Service on Ms. Gable and "Unknown Defendant No. 2" has not been completed, so Plaintiff's request for default judgment against either Defendant Gable or "Unknown Defendant No. 2" is premature.
RECOMMENDATION
In light of the foregoing, the undersigned hereby recommends that Plaintiff's Motion for Default Judgment (ECF No. 52) be DENIED. Plaintiff is advised that any objections to this Report and Recommendation must be filed with the Clerk of this Court on or before December 3, 2018 in accordance with 28 U.S.C § 636 and Federal Rule of Civil Procedure 72. Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both the factual findings and the legal issues decided herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation does not dispose of all issues referred to the undersigned magistrate judge in the captioned matter.
ENTERED on November 14, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE