Diab v. Doe et al

Filing 55

MEMORANDUM OPINION AND ORDER denying 52 MOTION for Default Judgment by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD DIAB,
Plaintiff,
v.

No. 16-CV-01002-MCA-GJF

FNU BACA, KEN SMITH,
FNU WESTERFIELD,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Richard Diab’s Motion For Default
Judgement [Doc. 52] and supporting documents, filed on September 21, 2017. [See Doc. 53
(Affidavit in Support of Request For Entry of Default); Doc. 54 (Narritive [sic] of Facts In
Support of Motion For Default Judgement)] Plaintiff was incarcerated at the time he filed his
civil rights complaint, appears pro se, and is proceeding in forma pauperis. For the reasons
explained below, Plaintiff’s motion for default will be denied with prejudice.
On September 7, 2016, Plaintiff filed a Prisoner Civil Rights Complaint challenging the
conditions of his confinement Central New Mexico Correctional Facility, followed by an
Amended Complaint on September 19, 2016. [Docs. 1, 6] Plaintiff’s original and amended
complaints alleged, in relevant part, that Defendants Smith, Westerfield, and Baca violated
Plaintiff’s right to be free from cruel and unusual punishment under the Eighth Amendment to
the United States Constitution. [Docs. 1, 6] On June 6, 2017, the Court construed Plaintiff’s
original and amended complaints collectively as the operative pleading under 28 U.S.C. §§
1915(e) and 1915A and determined that Plaintiff’s complaint stated a colorable claim for relief

against Defendants Smith, Westerfield, and Baca. [Doc. 47] Therefore, the Court directed the
Clerk of the Court to send notice and waiver of service forms to Defendants Smith, Westerfield,
and Baca pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. Defendants Smith,
Westerfield, and Baca waived service of process and timely filed their answer to the complaint
on August 11, 2017. See Fed. R. Civ. P. 4(d)(3) (providing that “[a] defendant who, before being
served with process, timely returns a waiver need not serve an answer to the complaint until 60
days after the request was sent . . . “). According to the Certificate of Service, a copy of
Defendants’ answer was mailed to Plaintiff via first class mail at his address of record. [Doc. 48
at 13]
On August 15, 2017, Plaintiff moved for summary judgment, alleging that Defendants’
alleged failure to file a timely response to Plaintiff’s complaint is an acknowledgment of “what
the plaintiff can prove if we go to a jury trial and that is that the defendants with material facts
that the claims brought against them are true and indisputable.” [Doc. 49 at 1] On September
21, 2017, the Court denied Plaintiff’s motion for summary judgment because it failed to comply
with Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1 of the Local Civil Rules of
the United States District Court of the District of New Mexico. [Doc. 51] Furthermore, to the
extent that Plaintiff’s motion liberally could be construed as a motion for default judgment
pursuant to Rule 55 of the Federal Rules of Civil Procedure, the Court denied Plaintiff’s motion
because Defendants Smith, Westerfield, and Baca had timely filed their answer to the complaint
on August 11, 2017. [Doc. 51; see Doc. 48]
Plaintiff now moves for default judgment against Defendants Smith, Westerfield, and
Baca, because “more than 90 days have past including holidays since the sending of the
complaint, notice and waiver of service by this court to the Defendants, Ken Smith, Westerfield,

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and Baca” but “defendants have not responded and have failed to plea or otherwise defend this
action.” [Doc. 52 at 2] As explained to Plaintiff in the Court’s September 21, 2017
Memorandum Opinion and Order, entry of default under Rule 55 of the Federal Rules of Civil
Procedure only is appropriate “[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
. . . .” Fed. R. Civ. P. 55(a). Defendants Smith, Westerfield, and Baca timely filed their answer
to Plaintiff’s complaint on August 11, 2017 and, therefore, Plaintiff is not entitled to entry of
default under Rule 55.
Regardless, Plaintiff was a prisoner at the time his civil rights complaint was filed and,
therefore, this action is governed by the Prison Litigation Reform Act (PLRA), 42 U.S.C. §
1997e, et seq. The PLRA provides, in relevant part, that:
Any defendant may waive the right to reply to any action brought
by a prisoner confined in any jail, prison, or other correctional
facility under section 1983 of this title or any other Federal law.
Notwithstanding any other law or rule of procedure, such waiver
shall not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply
has been filed.
42 U.S.C. § 1997e(g)(1). Under § 1997e(g)(1), “defendants can waive their right to reply to a
prisoner complaint without the usual consequence of being deemed to have admitted the
allegations in the complaint.” Jones v. Bock, 549 U.S. 199, 216 (2007). Thus, even if
Defendants’ Smith, Westerfield, and Baca had not filed a timely answer to Plaintiff’s complaint,
Plaintiff’s motion nonetheless would be subject to denial “[u]nder the explicit language of §
1997e(g)(1),” because “prisoner plaintiffs filing suit under § 1983 are not entitled to entry of
default against a defendant who has been properly served, but nevertheless has not filed any
reply.” Lafountain v. Martin, No 1:07-CV-76, 2009 WL: 4729933, at *4 (W.D. Mich. Dec. 3,
2009) (collecting cases) (unpublished).
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IT IS THEREFORE ORDERED that Plaintiff’s Motion For Default Judgement [Doc. 52]
is DENIED with prejudice; and the Clerk of the Court is directed to mail to Plaintiff, together
with a copy of this Memorandum Opinion and Order, the Answer To Complaint For Defendants
Sergeant Westerfield, FNU Baca, and Ken Smith [Doc. 48].

______________________________________
CHIEF UNITED STATES DISTRICT JUDGE

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