Wingfield v. Clark et al

Filing 12

ORDER. Plaintiff asking for summary judgement [sic] 10 is DENIED without prejudice. By Magistrate Judge Kristen L. Mix on 5/23/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00630-REB-KLM
JOSHUA E. WINGFIELD,
Plaintiff,
v.
S.O.R.T. SGT. CLARK,
S.O.R.T. DEPUTY BRIESKE,
S.O.R.T. DEPUTY REID,
S.O.R.T. DEPUTY WOODS, and
FOUR UNKNOWN S.O.R.T. DEPUTIES under Sgt. Clarks [sic] command on 2-23-11 who
participated in the use force,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on a letter from Plaintiff “asking for summary
judgement [sic]” [Docket No. 10; Filed May 19, 2011]. The letter was docketed as a Motion
and referred to the Magistrate Judge for resolution. As Plaintiff has been warned in his
other pending case, Case No. 10-cv-01375-REB-KLM [Docket Nos. 85 & 95], all pleadings
seeking relief must be filed by motion which contains a case caption.

See

D.C.COLO.LCivR 10.1J. The present Motion does not comply and is subject to denial on
this basis alone. Nevertheless, the Court considers the merits of the Motion.
Although Plaintiff purports to be seeking summary judgment, he is, in fact,
requesting that default judgment be imposed pursuant to Fed. R. Civ. P. 55(b) based upon
the allegation that Defendants have failed to timely answer the Complaint. As a preliminary
matter, the allegation is premised on an incorrect assumption that Defendants have been

served. As Plaintiff is proceeding in forma pauperis, the United States Marshal has been
ordered to effect service on Defendants [Docket No. 8]. See Fed. R. Civ. P. 4(c)(3). At
present, there is no record that service has been accomplished.1 As such, the time for
Defendants to respond has not been set.
Furthermore, default judgment is an inappropriate remedy under the circumstances.
Pursuant to Fed. R. Civ. P. 55(a), default judgment is not available unless Plaintiff has first
moved for and obtained entry of default from the Clerk of Court. See Nagim v. Napolitano,
No. 10-cv-00329, 2010 WL 2163646, at *1 (D. Colo. May 27, 2010) (unpublished decision)
(noting that “[f]ailure to successfully complete the first step of obtaining an entry of default
necessarily precludes the granting of default judgment at step two”). Entry of default has
not been sought or granted here. Moreover, given the lack of service, any request for entry
of default would be premature. For the reasons set forth above,
IT IS HEREBY ORDERED that the Motion is DENIED without prejudice.

Dated: May 23, 2011
BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

1

To the extent that Plaintiff’s Motion could be interpreted to suggest that he served
Defendants personally by mailing them a copy of an unexecuted Summons and his Complaint,
see Motion [#10] at 2-13, personal service cannot be accomplished through these informal
means. See Fed. R. Civ. P. 4. Plaintiff is entitled to service of his case by the United States
Marshal and service will be accomplished as soon as reasonably practicable.

2