Harper v. Rudek et al

Filing 89

ORDER ADOPTING REPORT AND RECOMMENDATION 82 of Magistrate Judge Suzanne Mitchell and denies plaintiff's motions 75 and 78 requesting entry of default and default judgment; the court grants plaintiff an additional 20 day within which to respond to defendants motion to dismiss 70 ...plaintiff's response is due 06/27/2013. Signed by Honorable Joe Heaton on 06/07/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DALE E. HARPER,
Plaintiff,
vs.
JAMES RUDEK, ET AL.,
Defendants.

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Case No. CIV-12-0449-HE

ORDER
Plaintiff Dale Harper, a state prisoner appearing pro se, filed this civil rights action
under 42 U.S.C. § 1983, and the matter was referred to a magistrate judge, consistent with
28 U.S.C. §636(b)(1)(B) and (C). Plaintiff has filed a motion for default judgment and a
motion requesting the entry of default, which Magistrate Judge Suzanne Mitchell has
recommended be denied. Plaintiff has objected to the Report and Recommendation.
Because the two defendants plaintiffs claims to be in default, Tracy McCollum and
Nina Nagel-Silva, timely filed a motion to dismiss, the magistrate judge concluded that
neither the entry of default nor default judgment was appropriate. The court agrees.
Plaintiff’s objection, based on the service of a pleading, Doc. #189, in another action, CIV11-995-HE, does not demonstrate why either defendant is in default in this lawsuit.
Accordingly, the court adopts Magistrate Judge Mitchell’s Report and
Recommendation and denies plaintiff’s motions requesting the entry of default [Doc. #78]
and default judgment [Doc. #75]. As the magistrate judge suggests, the court also grants
plaintiff an additional twenty (20) days within which to respond to defendants’ motion to

dismiss [Doc. #70]. Plaintiff’s response is due on or before June 27, 2013.
IT IS SO ORDERED.
Dated this 7th day of June, 2013.

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