Clark v. Owens

Filing 39

ORDER Adopting 32 Report and Recommendation and 36 Report and Recommendation; Denying 33 Motion for Default Judgment filed by Burrell Clark, and Granting 28 Motion for Summary Judgment filed by Sanders, George Stephenson, Ms. Ramsey, Ms. Jenkins-Grant. Signed by District Judge Sean F. Cox. (JMcC)

Case 2:21-cv-10631-SFC-JJCG ECF No. 39, PageID.378 Filed 02/24/22 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Burrell Clark,
Plaintiff,
Civil Case No. 21-10631
v.
Andrea Owens, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
______________________________/
ORDER
ADOPTING REPORTS AND RECOMMENDATIONS (ECF NOS. 32 & 36),
GRANTING SUMMARY JUDGMENT MOTION BY REMAINING DEFENDANTS,
AND DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
Plaintiff Burrell Clark, an incarcerated person, filed this pro se action asserting claims
against a number of Defendants, under 42 U.S.C. § 1983. The matter was referred to the
magistrate judge for all pretrial proceedings.
On November 10, 2021, the magistrate judge issued a Report and Recommendation
wherein he recommended that a Motion for Summary Judgment filed on behalf of Defendants
Ellen Campbell, Brett Coney, Andrea Owens, Kristopher Steece, Lisa Walsh, and Heidi
Washington be granted, based upon Plaintiff’s failure to exhaust his grievances that are at issue
in this case. (ECF No. 26). The magistrate judge’s Report and Recommendation noted that
Plaintiff conceded the failure-to-exhaust arguments raised by the Defendants:
Here, Clark was required to undertake all steps of the MDOC process to
fully exhaust his grievances. The moving defendants, who bear the burden of
proof, provided Clark’s Step III grievance report. (ECF No. 18-3.) According to
the report, Clark did not pursue any grievance relating to his action’s claims
through Step III prior to filing his suit on February 17, 2021. Id. MDOC received
Clark’s Step III grievances from March 29, 2021 to May 3, 2021 for all but one
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claim. Id. The remaining claim appears to not yet have reached Step III. (ECF No.
6,PAGEID.64–66.) Moreover, Clark concedes to all the movants’ arguments.
(ECF No. 22.) The moving defendants are therefore entitled to summary
judgment for lack of proper exhaustion.
(Id. at 6).
In an Order issued on December 7, 2021, this Court adopted that Report and
Recommendation, granted Defendants’ summary judgment motion, and dismissed Plaintiff’s
claims against Defendants Campbell, Coney, Owens, Steece, Walsh, and Washington. (ECF No.
30).
Thereafter, on November 15, 2021, a summary judgment motion was filed on behalf of
the four remaining Defendants in this case, Defendants George Stephenson, Regina JenkinsGrant, Christine Ramsey, and
Kimani Sanders. (ECF No. 28).
On December 8, 2021, likely before having received this Court’s November 15, 2021
Order, and without having requested or obtained a Clerk’s Entry of Default as to any Defendant
in this case, Plaintiff filed a motion seeking a default judgment against all Defendants. (ECF No.
33).
In a Report and Recommendation issued on December 14, 2021, the magistrate judge
recommends that this Court grant the summary judgment motion filed by the remaining
Defendants, for lack of proper exhaustion – the same basis upon which the summary judgment
motion filed by the other Defendants was previously granted. (ECF No. 32). In a Report and
Recommendation issued on December 20, 2021, the magistrate judge recommends that this
Court deny Plaintiff’s motion for default judgment as moot. (ECF No. 36).
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
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matter by a Magistrate Judge must filed objections to the Report and Recommendation within
fourteen (14) days after being served with a copy of it.
Plaintiff has filed objections to both of the recent Reports and Recommendations issued
by the magistrate judge. (See ECF Nos. 37 & 38). Having reviewed those objections, the Court
finds them to be without merit. The Court agrees with the analysis in the magistrate judge’s
December 14, 2021 Report and Recommendation and concludes that the claims against the
remaining Defendants should be dismissed for failure to exhaust. The Court also agrees that
Plaintiff’s motion seeking entry of a default judgment against Defendant should be denied as
moot.1
Accordingly, the Court hereby ADOPTS the magistrate judge’s December 14, 2021 and
December 20, 2021 Reports and Recommendations. The Court ORDERS that the motion for
summary judgment filed by the remaining Defendants in this case is GRANTED and Plaintiff’s
claims against those Defendants are DISMISSED. IT IS FURTHER ORDERED that Plaintiff’s
motion seeking a default judgment is DENIED.

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In addition, Plaintiff’s motion seeking a default judgment also fails because Plaintiff has
neither requested, nor obtained, a Clerk’s Entry of Default against any Defendant in this case.
Obtaining a default judgment under Rule 55 of the Federal Rules of Civil Procedures is a twostep process. Under Fed. R. Civ. P. 55(b), a judgment by default may be entered against a
defendant who has failed to plead or otherwise defendant against an action. But in order to
obtain a judgment by default, the proponent must first request and obtain a clerk’s entry of
default pursuant to subsection (a). Fed. R. Civ. P. 55(a); see also Shepard Claim Service, Inc. v.
William Darrah & Assocs., 796 F.2d 190, 193 (6th Cir. 1986) (Explaining that “entry of default
is just the first procedural step on the road to obtaining a default judgment.”). After a default has
been obtained, the proponent may then move for a default judgment by the clerk (if the
plaintiff’s claim is for a sum certain) or by the court (in cases where the claim is not for a sum
certain). Fed. R. Civ. P. 55(b).
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IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: February 24, 2022
I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 24, 2022, by electronic and/or ordinary mail.
S/J. McCoy
Case Manager

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