Opinion
Civil Action 23-cv-01011-PAB-MDB
11-30-2023
GREGORY CARL WIND JR, Plaintiff, v. NATHAN MCDONALD, 18543, Captain in the Limon Correctional Facility and the Volunteer Coordinator for Religions, MICHAEL MCKINNEY, 33312, Adams County Sheriff, ADAMS COUNTY, John Does [Correctional Officers and [Sheriffs, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARITZA DOMINGUEZ BRASWELL, MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Default Judgment on Defendant Michael J. McKinney, which has been referred to this Court. ([“Motion”], Doc. No. 55; Doc. No. 65.) After reviewing the Motion and relevant law, the Court recommends the Motion be DENIED.
Through the Motion, Plaintiff, who is proceeding pro se,seeks default judgment against Defendant McKinney pursuant to Federal Rule of Civil Procedure 55 based upon Defendant McKinney's alleged failure to timely file a responsive pleading. (Doc. No. 55.) Pursuant to Rule 55, “[e]ntry of a default judgment involves a two-step process.” Meyers v. Pfizer, Inc., 581 Fed.Appx. 708, 710 (10th Cir. 2014) (citing Fed.R.Civ.P. 55(a)-(b)). “If the defendant fails to timely respond to the complaint, the plaintiff can request entry of a default by the court clerk” under Rule 55(a). Id. “If the clerk enters a default, the plaintiff can [then] ask the court to grant a default judgment.”
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Here, Plaintiff has not yet completed step one of this process-i.e., Plaintiff seeks entry of default judgment against Defendant McKinney but has not yet obtained an entry of default from the Clerk of Court. Nor is the Motion sufficient to satisfy the requirements for obtaining the entry of default. Rule 55(a) requires that the party moving for entry of default demonstrate “by affidavit or otherwise,” the failure to plead or otherwise defend by the “party against whom a judgment for affirmative relief is sought.” D.C.COLO.LCivR 55.1(a) includes additional requirements for an affidavit in support of the default judgment. Plaintiff's request is improper.
More importantly, Defendant McKinney has entered an appearance and is defending this action. (See, e.g., Doc. No. 50); Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir. 1991) (“The default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.”). Defendant McKinney's original deadline to answer or otherwise respond to the operative Complaint was November 3, 2023. (Doc. No. 59.) On October 31, 2023, Defendant McKinney moved to extend his answer deadline-a request that the Court granted. (Doc. No. 50; 59.) Defendants' deadline to answer or otherwise respond to the operative Complaint is currently January 16, 2024. (Id.)
Accordingly, the Court recommends that Plaintiff's Motion for Default Judgment on Defendant Michael J. McKinney (Doc. No. 55) be DENIED. The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Gregory Carl Wind, Jr. #184466
Centennial Correctional Facility (CCF) E-6-44
P.O. Box 600
Canon City, CO 81215
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).