Opinion
Case No. CIV-17-642-R
08-21-2018
THURMAN HARVEY HINES, Plaintiff, v. JOE ALLBAUGH, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Thurman Harvey Hines, a state prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging a violation of his constitutional rights. U.S. District Judge David L. Russell referred this case to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Before the Court is Plaintiff's Motion for Default Judgment as to Defendants Joe Allbaugh, Mark Knutson, Jerold Braggs, Jr., Tamara Means, Shonda Madden, Gary Elliott and Barbra Pratt. (ECF No. 113).
I. BACKGROUND
Of the defendants against whom Plaintiff seeks default judgment, all defendants have been dismissed except for Defendants Allbaugh and Knutson. See (ECF Nos. 99; 111). Moreover, Defendants Allbaugh and Knutson have entered their timely appearance. See (ECF No. 27).
II. THE PENDING MOTIONS
When a defendant fails to "plead or otherwise defend," and that failure is shown by affidavit or otherwise, default must be entered by the clerk of the court. Fed. R. Civ. P. 55(a). Thereafter, the prevailing party may ask the Court to enter default judgment. See Fed. R. Civ. P. 55(b)(2). Without an entry of default, the Court cannot enter an order granting judgment. See Garrett v. Seymour, No. 06-7029, 217 Fed. Appx. 835, 838 (10th Cir. Feb. 23, 2007) (the clerk's entry of default is a prerequisite for the entry of a default judgment).
No default has been entered by the Clerk of Court in this case against any Defendant. Moreover, it appears that the Court Clerk lacks any grounds to do so. Defendants Allbaugh and Knutson timely entered their appearances in this case, (ECF No. 27).
RECOMMENDATION
In light of the foregoing, it is recommended that Plaintiff's Motion for Default Judgment (ECF No. 113) be DENIED. Plaintiff is hereby advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 7, 2018 in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
STATUS OF THE REFERRAL
This Report and Recommendation DOES NOT dispose of all issues referred to the undersigned magistrate judge in the captioned matter.
ENTERED on August 21, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE