Opinion
CIV-20-1153-J
08-04-2021
JIMMY LEVI GAUTHIER, Plaintiff, v. GARRETT HUNT, et. al., Defendants.
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's Second Motion for Summary Judgment. Doc. No. 78. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends Plaintiff's Motion be denied without prejudice.
I. Background Information
In his Amended Complaint, filed on February 3, 2021, Plaintiff asserted multiple claims of constitutional violations that allegedly occurred while he was confined in the Stephens County Jail. Doc. No. 33 (“Am. Comp.”). Currently, the active Defendants in this matter are Defendants Timothy Vann, Bruce Guthrie, Javier Martinez, Sheriff Wayne McKinney, and Carla Estes. Doc. No. 74 at 3. Plaintiff's remaining claims are a Fourteenth Amendment claim based on failure to protect against Defendant Guthrie (Claim One), state law claim of abuse of process against Defendants Vann and Estes (Claim One), state law claim of negligence against Defendant Sheriff McKinney (Claim One), and a Fourteenth Amendment claim against Defendant Martinez based upon inadequate medical care (Claim Three). Doc. Nos. 37, 61.
In his current filing, Plaintiff titles the Motion as requesting summary judgment, Doc. No. 78 at 1, which is authorized under Federal Rule of Civil Procedure 56, then references relying on Federal Rule of Civil Procedure 12(c), id., and then again references a request for summary judgment presuming the Court relies on material outside of the pleadings. Id. Plaintiff also requests the Court enter default judgment against Defendants Martinez, McKinney, and Estes. Id. at 2.
In requesting default judgment, Plaintiff refers only to active Defendants. Id. at 2. As noted, the current active Defendants are Vann, Guthrie, Martinez, McKinney, and Estes. Supra. Defendants Martinez, McKinney, and Estes were served on June 8, 2021. Doc. No. 69. Due to an internal error, Defendant Vann's Summons was not issued until June 29, 2021, Doc. No. 75, and to date, a return of service has not been filed with the Court. Defendant Guthrie's Summons was previously returned unexecuted as the Stephens County Jail officials indicated that he is no longer employed. Doc. No. 76. On August 3, 2021, the Court issued an Order extending Plaintiff's time to serve Defendant Guthrie and directing Stephens County Jail to confidentially provide the United States Marshal Service (“USMS”) with Defendant Guthrie's last known address so that the USMS could effectuate service. Doc. No. 79.
II. Analysis
To the extent Plaintiff requests summary judgment on his claims, such a request should be denied based on the same reasons set forth in the undersigned's previous Report and Recommendation and subsequent Order denying Plaintiff's first request for summary judgment. Doc. Nos. 49, 50, 61. To the extent Plaintiff relies on Federal of Civil Procedure 12(c) as a basis for judgment, Plaintiff's request is premature.
Rule 12(c) provides, “After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” In the present case, the pleadings are not closed as Defendants have not filed an Answer. See, cf., Santa Fe All. for Pub. Health and Safety v. City of Santa Fe, N.M., 993 F.3d 802, 809 n.3 (10th Cir. 2021) (discussing that a Rule 12(c) motion would have been premature where the pleadings were not closed because, although one defendant had filed an answer, two defendants had filed Rule 12(b) motions and had not filed answers (citing Fed.R.Civ.P. 12(c); Gorenc v. Klaassen, No. 18-2403-DDC-JPO, 2019 WL 2523566, at *2 (D. Kan. Jun. 19, 2019) (collecting authorities standing for the proposition that the pleadings are not “closed” until all defendants file an answer)).
Additionally, Plaintiff requests default judgment against Defendants Martinez, McKinney, and Estes. Doc. No. 78 at 1-2. In so doing, Plaintiff relies on language in the Summons served on each Defendant indicating that they must file an answer or other responsive pleading no later than 21 days after they are served. Id. However, in this Court's Order Requiring Service and Special Report, also served on each Defendant, the Court directed Defendants to file the Special Report and their Answer or other responsive pleading no later than 60 days from the date of service. Doc. No. 62 at 2. Defendants Martinez, McKinney, and Estes were served on June 8, 2021. Doc. No. 69. Thus, their time to file an Answer or otherwise respond to Plaintiff's Amended Complaint has not expired.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's “Motion for Summary Judgment” (Doc. No. 78) be DENIED without prejudice. Plaintiff is advised of the right to file an objection to this Third Supplemental Report and Recommendation with the Clerk of this Court by August 24 th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Third Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Third Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.