Spencer v. Hill et al

Filing 21

ORDER denying 20 Declaration for Entry of Default Judgment. Signed by Magistrate Judge John Johnston on 1/7/2019. Mailed to Spencer (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
TIMOTHY EDWARD SPENCER,

CV 18-00028-H-BMM-JTJ

Plaintiff,
vs.

ORDER

DR. VIRGINIA HILL, DR. STEVEN
PALMERI, NURSE LORI
SWANSON, NURSE JACK
PRESTON, RICHARD OPPER, JOHN
GLUCKERT and DR. PERINEAN,
Defendants.

Plaintiff Timothy Spencer, a state prisoner proceeding in forma pauperis and
without counsel, has filed a Declaration for Entry of Default. (Doc. 20.) He
contends Defendants failed to timely answer or otherwise defend against his
claims. (Doc. 20.) Rule 55(a) of the Federal Rules of Civil Procedure provides,
“[w]hen a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.”
Pursuant to the federal statutes governing proceedings in forma pauperis and
cases filed by prisoners, federal courts must engage in a preliminary screening of a

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case to assess the merits of the claims. 28 U.S.C. § 1915(e)(2); 28 U.S.C. §
1915A(a). The Court conducted this screening on October 22, 2018. (Doc. 10.)
Because Mr. Spencer is proceeding in forma pauperis, “[t]he officers of the court
shall issue and serve all process.” 28 U.S.C. § 1915(d). The Court requested
Defendants to waive service of summons which they did on November 21, 2018.
(Doc. 14.) Defendants timely filed an Answer to Mr. Spencer’s Complaint on
December 20, 2018. (Doc. 17). As such, there is no basis for entry of default.
ACCORDINGLY, IT IS HEREBY ORDERED THAT Mr. Spencer’s
Declaration for Entry of Default (Doc. 20) is DENIED.
DATED this 7th day of January, 2019.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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