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Waters v. Stewart, 4:15-cv-4143-RBH-TER. (2016)

Court: District Court, D. South Carolina Number: infdco20160513h41 Visitors: 12
Filed: Apr. 29, 2016
Latest Update: Apr. 29, 2016
Summary: REPORT AND RECOMMENDATION THOMAS E. ROGERS, III , Magistrate Judge . Plaintiff, who is proceeding pro se , brings this action, alleging violations of his constitutional rights pursuant to both 42 U.S.C. 1983 and Bivens v. Six Unknown Federal Narcotics Agents , 403 U.S. 388 , 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Presently before the court is Plaintiff's Motion for Default Judgment (Document # 25). All pretrial proceedings in this case were referred to the undersigned pursuant to the pr
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REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, brings this action, alleging violations of his constitutional rights pursuant to both 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Presently before the court is Plaintiff's Motion for Default Judgment (Document # 25). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.

On December 30, 2015, the undersigned entered an order (Document # 9) authorizing service of process as to Defendants Stewart, Strickland, Backhuss, and Cooper, and entered a separate report and recommendation (Document # 11) recommending summary dismissal of the claims against Defendant Townsend. The summonses were issued that same day, and the docket entry (Document # 13) notes that service was due by April 1, 2016. The summonses for Stewart and Strickland were served on January 22, 2016, with answers due February 12, 2016. See Summons Returned Executed (Document # 22). The summons for Backhuss was served on February 23, 2016. See Summons Returned Executed (Document # 32). The docket does not reflect whether Defendant Cooper has been served. Nevertheless, an answer was filed on behalf of Defendants Stewart, Strickland, Backhuss, and Cooper on February 4, 2016. Answer (Document # 24). A copy of the answer was served via certified mail, return receipt requested, on February 5, 2016. See Certificate of Service (Ex. to Def. Resp.). The answer was received by the Florence County Detention Center on February 8, 2016. See Return Receipt (Ex. to Def. Resp.). Service has not been authorized as to Defendant Townsend, and the recommendation to dismiss Townsend from this action is pending before the district judge.

Plaintiff argues that an answer should have been filed within twenty-one days of December 30, 2015, the day this court authorized service. However, Fed.R.Civ.P. 12(a)(1)(A)(i) requires a defendant to serve an answer within twenty-one days after being served with the summons and complaint, not when service is authorized by the court. Because Defendants Stewart, Strickland, Backhuss, and Cooper timely served their answer and service has not been authorized on Defendant Townsend, default judgment is not appropriate. Thus, it is recommended that Plaintiff's Motion for Default Judgment (Document # 25) be denied.

Source:  Leagle

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