Sears v. Williams et al
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
MAURICE LAMONT SEARS, # 216192, *
CIVIL ACTION NO.11-00719-KD-B
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”),
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).
psychological and mental injuries.
Bentley, and the Alabama Personnel Department be dismissed with
Plaintiff did not name Officer Kennkel as a defendant in
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), and
that his claim against Defendant Anthony Williams proceed. (Doc.
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).
When attempts to serve Williams
personally serve Williams. (Doc. 37).
On November 25, 2013, the
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.
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.).
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
the complaint.” Jones v. Bock, 549 U.S. 199, 213-14, 127 S. Ct.
Detention Center, 2013 U.S. Dist. LEXIS 69173, at *2 (E.D. La.
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.
Additionally, in light of the fact
complaint at Williams’ residence with a person of suitable age,
that Williams thereafter executed and mailed to the Court a
Sears’ complaint, the undersigned finds it appropriate to ORDER
Defendant Anthony Williams to file an answer to Sears’ complaint
by July 31, 2014.
Williams is cautioned that failure to timely
Defendant Williams at his address on file via certified mail and
DONE this 11th day of July, 2014.
/s/ Sonja F. Bivins
UNITED STATES MAGISTRATE JUDGE
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