Martin v. McDaniel et al.

Filing 20

ORDER denying 15 Motion for Entry of Default and requiring Plaintiff to provide current address for Defendant McDaniel within thirty (30) days. Ordered by US Mag Judge Stephen Hyles on 10/14/11. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES M. MARTIN,
Plaintiff,
v.
Lieutenant JOHNNY McDANIEL,
Defendant.
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CASE NO. 5:11-CV-192-MTT-MSH
42 U.S.C. § 1983

ORDER DENYING MOTION FOR DEFAULT JUDGMENT
On August 25, 2011, Plaintiff moved for an entry of default against Defendant
Johnny McDaniel. (ECF No. 15.) Plaintiff contends that Defendant McDaniel has failed
to file a responsive pleading as required by Federal Rules of Civil Procedure Rule 12(a).
(Pl.’s Req. Ct. Rule on Def.’s Default 1.) For the reasons explained below, Plaintiff’s
motion is denied at this time.
BACKGROUND
Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 on May 16, 2011. (ECF
No. 1.) After a preliminary review of Plaintiff’s claims, the only remaining defendant in
the case is Lieutenant Johnny McDaniel. (Order & Report & Recommendation 5-7, June
1, 2011, ECF No. 5; Order 2, July 1, 2011, ECF No. 7.) On July 14, 2011, the Court
directed service against Defendant McDaniel. (Order of Service, ECF No. 9.) A United
States Marshals Service Process Receipt and Return was mailed to Defendant McDaniel,
along with the Complaint and a summons, at the address provided by Plaintiff on July 15,

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2011. (ECF No. 10.) Defendant McDaniel has not Answered the Complaint or waived
service.
In response, on August 25, 2011, Plaintiff moved for an entry of default against
Defendant McDaniel.

The Court thereafter Ordered that Defendant McDaniel be

personally served by the U.S. Marshals Service. (Text Only Order, Sept. 19, 2011.) The
process receipt for personal service was returned unexecuted because Defendant
McDaniel is no longer at the address provided for service by Plaintiff. (See Process
Receipt & Return 1, ECF No. 18.) Specifically, the U.S. Marshal was advised that
Defendant McDaniel no longer works at Wilcox State Prison, the only address provided
by Plaintiff. (Id.) Thus, from the documents contained in the record, it is clear that
service of process has not been perfected against Defendant McDaniel.
DISCUSSION
Rule 55 of the Federal Rules of Civil Procedure provides that a clerk “must enter
[a] party’s default” when that party “failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise.”

Plaintiff here has not shown that Defendant

McDaniel has failed to plead or otherwise defend in this case because Plaintiff has failed
to show that Defendant has been properly served. To the contrary, the record in this case
establishes that Defendant McDaniel has not been served. (See Process Receipt & Return
1, ECF No. 18.) A party cannot defend against a lawsuit of which he has no notice.
Therefore, Plaintiff’s motion for default judgment is denied.
The Court recognizes that Plaintiff is pro se and is proceeding in forma pauperis
in this action. Consequently, it is the duty of the officers of the court to “issue and serve
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all process[.]” 28 U.S.C. § 1915(d). In fact, in the Eleventh Circuit, in forma pauperis
litigants are “entitled to rely on the court officers and United States Marshals to effect
proper service, and should not be penalized for failure to effect service where such failure
is not due to fault on the litigant’s part.” Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir.
1990).
Here, service was not properly effectuated because Plaintiff provided court
officials with an incorrect address for Defendant McDaniel. In other words, the failure to
effect service is due to fault on the in forma pauperis litigant’s part. The Court is
confident that Plaintiff did so because he was unaware that Defendant McDaniel no
longer works at Wilcox State Prison, and not in a purposeful attempt to mislead or
misinform the Court. Because it is likely Plaintiff was unaware that Defendant McDaniel
has moved his place of employment, Plaintiff will not be penalized for the failure to
effect service. This action, however, cannot continue without service on the Defendant.
Plaintiff therefore has thirty (30) days within which to provide the Court with Defendant
McDaniel’s current and correct address. See Fowler, 899 F.2d at 1095 (“A plaintiff may
not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff
should request service upon the appropriate defendant and attempt to remedy any
apparent service defects of which a plaintiff has knowledge.”) (quotation marks and
citation omitted).

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CONCLUSION
For the reasons explained above, Plaintiff’s motion for default is denied.
Additionally, Plaintiff must provide the Court with Defendant McDaniel’s current
address within thirty (30) days. Failure of the Plaintiff to comply with this Order may
result in a dismissal of his action.
SO ORDERED, this 14th day of October, 2011.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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