Sears v. Williams et al

Filing 44

Order denying with prejudice 43 Application to Clerk for Entry of Default filed by Maurice Lamont Sears. Answer due from Anthony Williams on 7/31/2014. Signed by Magistrate Judge Sonja F. Bivins on 7/11/2014. copy of order mailed to plf. Copy of order mailed to dft by regular mail and via certified mail, as directed. (sdb) (Additional attachment(s) added on 7/11/2014: # 1 Certified Mail Receipt) (sdb).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MAURICE LAMONT SEARS, # 216192, *
*
Plaintiff,
*
*
vs.
*
*
ANTHONY WILLIAMS,
*
*
Defendant.
*

CIVIL ACTION NO.11-00719-KD-B

ORDER
Plaintiff, an Alabama prison inmate proceeding pro se and
in forma pauperis, filed a complaint under 42 U.S.C. § 1983.
The gist of Sears’ claim is that on May 28, 2011, while Sears
was incarcerated at Fountain Correctional Center (“Fountain”),
Defendant

Anthony

Williams,

assisted

by

Officer

Kennkel

1

,

assaulted Sears by slamming him into the concrete repeatedly,
choking and hitting him, and pointing a loaded 12 gauge shotgun
at him while threatening to kill him. (Doc. 12).
that

he

suffered

injuries

to

his

head

and

Sears alleges

neck

as

well

as

psychological and mental injuries.
After

screening

§ 1915(e)(2)(B),
against

the

Defendants

Sears’

complaint

undersigned
White,

pursuant

recommended

Meyer,

Hetrick,

to

that

28

U.S.C.

his

claims

Mosley,

Thomas,

Bentley, and the Alabama Personnel Department be dismissed with

1

Plaintiff did not name Officer Kennkel as a defendant in
this suit.
1

prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), and
that his claim against Defendant Anthony Williams proceed. (Doc.
18).

The report and recommendation was adopted as the order of

the Court on February 25, 2013. (Docs. 24, 25).
Subsequent thereto, the Court took steps to serve Defendant
Williams. (Docs. 31, 32, 33).
by

mail

failed,

the

Court

When attempts to serve Williams

directed

personally serve Williams. (Doc. 37).
Marshal’s

Office

notified

the

Court

the

Marshal’s

Office

to

On November 25, 2013, the
that

the

summons

and

complaint had been left with Adrian Williams, who identified
himself as Defendant’s brother who was living with Defendant at
Defendant’s address. (Doc. 39).

On February 3, 2014, Defendant

Williams executed and filed with the Court a Waiver of Service
form. (Doc. 40).

Notwithstanding, Williams has not filed an

answer nor otherwise responded to Sears’ complaint.

Currently

pending before the Court is Sears’ Declaration for Entry of
Default. (Doc. 43).

Sears seeks the entry of a default because

Williams has failed to respond to his complaint. (Id.).
The

undersigned

observes,

as

a

preliminary

matter,

that

this civil action is subject to the Prison Litigation Reform Act
of 1995 (“PLRA”).

Unlike typical civil cases, under the PLRA,

“defendants do not have to respond to a complaint covered by the
PLRA until required to do so by the court, and waiving the right
to reply does not constitute an admission of the allegations in
2

the complaint.” Jones v. Bock, 549 U.S. 199, 213-14, 127 S. Ct.
910,

166

L.

Ed.

2d

798

(2007);

Green

v.

Lafourche

Parish

Detention Center, 2013 U.S. Dist. LEXIS 69173, at *2 (E.D. La.
Apr.

18,

2013)

(because

the

court

never

entered

an

order

directing the defendants to respond to the complaint, they were
not in default); 42 U.S.C. § 1997e(g)(1).
Accordingly, because the Court has not previously issued an
order directing Williams to file an answer, Sears’ motion is
DENIED without prejudice.
that

the

Marshal’s

Additionally, in light of the fact

Office

left

a

copy

of

the

summons

and

complaint at Williams’ residence with a person of suitable age,
that Williams thereafter executed and mailed to the Court a
Waiver

of

Williams

Service

has

not

form,
filed

and
an

that

answer

over
or

five

otherwise

months

later,

responded

to

Sears’ complaint, the undersigned finds it appropriate to ORDER
Defendant Anthony Williams to file an answer to Sears’ complaint
by July 31, 2014.
respond

to

this

Williams is cautioned that failure to timely
order

will

result

in

the

entry

of

default

against him.
The

Clerk

is

directed

to

send

the

instant

order

to

Defendant Williams at his address on file via certified mail and
regular mail.
DONE this 11th day of July, 2014.
/s/ Sonja F. Bivins
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UNITED STATES MAGISTRATE JUDGE
3