PARKER v. DAVIS et al

Filing 96

ORDER denying 82 Motion for Default Judgment. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 7/20/2017 (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

LEE McDANIEL PARKER,
Plaintiff,
VS.
Sheriff DAVID DAVIS, et al.,
Defendants.
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NO. 5:15-CV-271-CAR-MSH

ORDER
Presently pending before the Court is Plaintiff’s Motion for Default Judgment
against Sheriff Donnie Haralson, Sergeant Aikens, and Nurse Susan Doe (ECF No. 82).
Plaintiff’s motion is denied.
Rule 55 of the Federal Rules of Civil Procedure provides that when a party “failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party’s default.” “Prior to obtaining a default judgment, the party seeking
judgment must first seek an entry of default.” Johnson v. Rammage, 5:06-cv-57-CAR,
2007 WL 2276847 at *1 (M.D. Ga. Aug. 7, 2007)(citing Fed. R. Civ. P. 55(a)).
Plaintiff’s motion for default judgment is thus improper, as he did not first seek a clerk’s
entry of default.
The Court finds that default judgment is improper against Sheriff Donnie Haralson
and Nurse Susan Doe for the following additional reasons.

First, Sheriff Donnie

Haralson is no longer a defendant in this matter. In his recast complaint (ECF No. 5),

Plaintiff abandoned his claims against Sheriff Donnie Haralson. Haralson was terminated
as a defendant pursuant to the Court’s January 5, 2016 Order. Order 1, ECF No. 9.
Second, Nurse Susan Doe has not yet been properly served. The United States Marshal’s
Service (“USMS”) attempted personal service on Nurse Susan Doe on April 13, 2016 at
her place of employment—the Crisp County Jail. Process Return and Receipt 1, ECF
No. 54. Unable to personally serve Nurse Susan Doe, the USMS left a copy of the
summons at the jail. Nurse Susan Doe called the USMS to say that she had received the
summons (ECF No. 54).

However, pursuant to Federal Rule of Civil Procedure

4(e)(2)(B) this is not proper service because the summons and complaint were left at
Defendant’s place of employment, not her “dwelling or usual place of abode[.]”
Plaintiff’s motion for default judgment is denied on these additional grounds.1
SO ORDERED, this 20th day of July, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

1

The Court notes that proper personal service was perfected on Defendant Sergeant
Aikens on April 13, 2016 (ECF No. 55).
2