LeRoy v. Whyte

Filing 4

REPORT AND RECOMMENDATIONS re 1 Complaint filed by LeRoy; Objections to R&R due by 4/5/2007. Signed by Judge Alma L. Chasez on 3/22/07.(car, )

LeRoy v. Whyte

Doc. 4

Case 2:07-cv-01179-SSV

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Filed 03/23/2007

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LEROY a/k/a DEREK LEROY MCSMITH VERSUS LORETTA WHYTE CIVIL ACTION NUMBER: 07-1179 SECTION: "R"(5)

REPORT AND RECOMMENDATION

The above-captioned matter came before the Court pursuant to Local Rule 72.1E(B)(1) for a determination of pauper status under 28 U.S.C. §1915. Section (e)(2) of the foregoing statute directs district courts to screen complaints that were filed in forma pauperis ("IFP") and to dismiss those cases that are, inter alia, frivolous or malicious or fail to state a claim upon which relief can be granted. The Court thus issues this Report and

Recommendation pursuant to that statutory directive. Pro se plaintiff, Leroy a/k/a Derek Leroy McSmith, is one of the Court's most prolific litigators of recent date. (See McSmith

v. Chasez, 07-CV-656 "F"(2), rec. doc. 2, pp. 6, 8-9 for a listing of some of plaintiff's other cases in this forum). In this

Dockets.Justia.com

Case 2:07-cv-01179-SSV

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lawsuit,

McSmith's

most

recent

foray

into

the

realm

of

frivolousness, he complains that Clerk of Court Whyte has failed to act upon a motion for default judgment that he filed in one of his numerous other cases pending here, McSmith v. Baehr, 06-CV-11200 "C"(3). A review of the record in the latter case reveals that on

February 23, 2007, plaintiff filed a motion for default judgment requesting that judgment be entered against one of the named defendants at a rate of $1,000.00 per day since September 11, 2006. (06-CV-11200, rec. doc. 19). A review of 06-CV-11200 further

reveals that plaintiff had not moved for the entry of a default under Rule 55(a), Fed.R.Civ.P., prior to filing his motion for default judgment under Rule 55(b)(1). The entry of a default under Rule 55(a) is a condition precedent to the rendition of a default judgment under Rule 55(b), whether done by the clerk or the court. Griffin v. Foti, 2003 WL

22836493 at *1 (E.D. La. 2003)(citing Great Atlantic Pacific Tea Co. v. Heath, 1995 WL 258317 at *1 (E.D. La. 1995)). Plaintiff having failed to move for the entry of a default under Rule 55(a) prior to filing his motion for default judgment under Rule

55(b)(1), there was noting pending in 06-CV-11200 that was in a procedurally proper posture for Clerk of Court Whyte to act upon. No First Amendment violation is apparent here. Plaintiff's claim

lacks an arguable basis in law and fact and should thus be 2

Case 2:07-cv-01179-SSV

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dismissed as frivolous pursuant to 28 U.S.C. §1915(e)(2)(B)(ii). Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). RECOMMENDATION For the foregoing reasons, it is recommended that plaintiff's suit be dismissed as frivolous pursuant to 28 U.S.C.

§1915(e)(2)(B)(ii). A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v.

United Services Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc). Hello This is a Test 22nd New Orleans, Louisiana, this _____ day of _________________, March 2007.

UNITED STATES MAGISTRATE JUDGE

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