Filed: Aug. 21, 2018
Latest Update: Aug. 21, 2018
Summary: REPORT AND RECOMMENDATION SHON T. ERWIN , Magistrate Judge . 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 are Plaintiff's Motions for Default Judgment as to Defendant
Summary: REPORT AND RECOMMENDATION SHON T. ERWIN , Magistrate Judge . 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 are Plaintiff's Motions for Default Judgment as to Defendants..
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REPORT AND RECOMMENDATION
SHON T. ERWIN, Magistrate Judge.
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 are Plaintiff's Motions for Default Judgment as to Defendants James Yates, Terrance Costello, Glenn Robinson, Terry Underwood, Terry Stanley, Willa Burney, Antwon Berry, Shauna Bailey, FNU Phay and FNU Johnson. (ECF Nos. 105; 107).
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. These defendants timely entered their appearances in this case. See (ECF Nos. 42; 86).
RECOMMENDATION
In light of the foregoing, it is recommended that Plaintiff's Motions for Default Judgment (ECF No. 105, 107) 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.
