MCDANIEL v. ZICKEFOOSE et al

Filing 24

ORDER denying without prejudice 15 Motion for Default Judgment; US Marshal shall serve copy of Order and Complaint upon Hawtin; Hawtin shall file responsive pleading within 60 days from the entry of this Order. Signed by Judge Robert B. Kugler on 3/16/2016. (tf,n.m. )

NOT FOR PUBLICATION

(Doc. No. 15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_________________________________________
:
TERENCE MCDANIEL
:
:
Plaintiff,
:
Civil No. 13-6583 (RBK/AMD)
:
v.
:
:
ORDER
JOSEPH HAWTIN,
:
:
Defendant.
:
_________________________________________ :
KUGLER, United States District Judge:
THIS MATTER having come before the Court on Plaintiff Terence McDaniel’s
(“McDaniel”) Motion for Default Judgment (Doc. No. 15) on his Eighth Amendment excessive
force claim against Defendant Joseph Hawtin (“Hawtin”); and
IT APPEARING TO THE COURT THAT
1. McDaniel, a federal prisoner, submitted for filing his civil complaint (“Complaint”) and
application to proceed in forma pauperis on October 31, 2013. (See Doc. No. 1.) In his
Complaint, McDaniel alleged multiple claims against three defendants: (1) Donna
Zickefoose—Warden F.C.I. Fort Dix, (2) Joseph Hawtin—Correctional Officer
(“Hawtin”), and (3) Physician’s Assistant Wilks. (See generally Compl.) The Court
granted McDaniel in forma pauperis status, screened the Complaint for sua sponte
dismissal, and dismissed McDaniel’s claims against Donna Zickefoose and Wilks. (See
Doc. Nos. 3–4.) The Court permitted McDaniel’s claim against Hawtin to proceed, and

directed service upon Hawtin. (Doc. No. 4.) The United States Marshal duly executed
said service upon Hawtin on June 27, 2014. (See Doc. No. 6.)
2. Although the Court’s order directing service explicitly directed Hawtin to “file and serve
a responsive pleading within the time specified by Fed. R. Civ. P. 12” pursuant to 42
U.S.C. § 1997(e)(g)(2), Hawtin has filed no responsive pleading in this matter. (See
generally Docket.)
3. On September 18, 2014, McDaniel moved for default judgment. The Court denied the
motion on account of McDaniel having failed to first request entry of default by the Clerk
of the Court. (See Doc. No. 8.) McDaniel thereafter properly requested and obtained the
Clerk’s entry of default on June 22, 2015. (Doc. No. 13.) McDaniel again moves for
default judgment against Hawtin.
4. The decision to grant or deny a motion for default judgment lies primarily with the
district court. See Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). However,
in determining whether entry of default judgment is appropriate, district courts must
consider the Third Circuit’s “well-established policy of disfavoring default judgments
and encouraging decisions on the merits.” Husain v. Casino Control Comm’n, 265 Fed.
App’x 130, 133 (3d Cir. 2008) (internal quotations omitted); see also Budget Blinds, Inc.
v. White, 536 F.3d 244, 258 (3d Cir. 2008) (“We acknowledge that default judgments are
generally disfavored in our circuit.”); Hritz, 732 F.2d at 1181 (“We have repeatedly
stated our preference that cases be disposed of on the merits whenever practicable.”).
5. Here, the Court notes its grave concern with Hawtin’s failure to file and serve a
responsive pleading. However, given the drastic remedy of default judgment, an in an

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abundance of caution, the Court will direct service of this Order upon Hawtin and deny
McDaniel’s motion without prejudice.
IT IS THEREFORE ORDERED that the Court’s adjudication of McDaniel’s motion
for default judgment is DENIED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED that he United States Marshal shall serve a copy of the
Complaint (Doc. No. 1) and this Order upon Hawtin, pursuant to 28 U.S.C. § 1915(d);
IT IS FURTHER ORDERED that Hawtin shall file and serve his responsive pleading
within sixty (60) days from the date of entry of this Order. Hawtin may not seek any extension
of time to file and serve his responsive pleading;
IT IS FURTHER ORDERED that in the event Hawtin fails to file and serve his
responsive pleading within sixty days from the date of entry of this Order, McDaniel shall file
with the Clerk his written statement informing the Court of Hawtin’s failure and requesting
renewal of his motion for default judgment; 1 and
IT IS FURTHER ORDERED that the Clerk shall serve this Order upon McDaniel by
regular U.S. mail.

Dated: 03/16/2016

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

1

The Court recognizes McDaniel’s pro se status, and therefore, he need not file another formal motion seeking
default judgment. A letter in laymen’s terms that apprises the Court as to whether Hawtin has or has not filed a
responsive pleading will suffice.

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