Kinkead v. Sutmiller et al

Filing 66

ORDER denying 24 Motion for Default Judgment; denying 25 Motion for Summary Judgment; adopting Report and Recommendations re 44 Report and Recommendation.; adopting Report and Recommendations re 45 Report and Recommendation.; denying 14 Motion for Order (md)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
MARK ALEX KINKEAD,
Plaintiff,
v.
DON SUTMILLER, et al.;
Defendants.

)
)
)
)
)
)
)
)
)

CIV-13-49-R

ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this action
pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights. Pursuant to
28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate Judge Shon
T. Erwin for preliminary review. On February 6, 2014, Judge Erwin issued two Report and
Recommendations (Doc. Nos. 44 and 45), wherein he recommended (1) that Plaintiff's
"Motion Seeking Relief from Delay and Restriction to Access to the Courts" be denied (Doc.
No. 14) and (2) that Plaintiff's Motion for Default Judgment and Motion for Summary
Judgment be denied (Doc. Nos. 24 and 25). The matter is currently before the Court on
Plaintiff's timely objection to the Report and Recommendation.
In the Report and Recommendation at Document Number 44, addressing Plaintiff's
request for access to the Court's, Judge Erwin summarizes the motion as requesting that
Plaintiff be given greater access to the law library, and construed the motion as one seeking
injunctive relief. Judge Erwin concluded that Plaintiff had failed to meet the burden of
establishing that he was entitled to injunctive relief under Rule 65. In his objection, Plaintiff

casts a far wider net than the issue addressed by the Report and Recommendation with regard
to library access, and most of his filing addresses issues related to safety and medical care
and the remainder of his substantive claims, which were not implicated in his motion at
Document Number 14. Although the issues raised by Plaintiff's Amended Complaint and his
objection to the Report and Recommendation are serious, the only issue before the Court
with regard to the first Report and Recommendation is whether Plaintiff is entitled to
injunctive relief regarding library access. His objection, even construed liberally, fails to
establish that he is entitled to the relief he requested pursuant to Rule 65. Accordingly, the
Report and Recommendation (Doc. No. 44) is hereby ADOPTED in ITS ENTIRETY, and
Plaintiff's Motion (Doc. No. 14) is hereby DENIED.
Report and Recommendation Document No. 45 addresses Plaintiff's Motion for
Default Judgment (Doc. No. 24) and Motion for Summary Judgment (Doc. 25), which was
premised on Defendant Sutmiller's alleged failure to respond to the suit. Judge Erwin
recommended denial of the motion for default judgment, as there has been no Clerk's entry
of default. There remains no clerk's entry of default, and accordingly, the Court may not
enter default judgment in Plaintiff's favor, and further, Defendant Sutmiller has joined in a
motion to dismiss that is currently pending before Judge Erwin, indicating that he will defend
against Plaintiff's allegations, making default inappropriate.1 As such, the Court hereby

1

Furthermore, because Plaintiff's motion for summary judgment was based solely on the failure to
respond to the suit, and because it was not properly supported, it is similarly denied.

2

ADOPTS the Report and Recommendation (Doc. No. 45) and the Plaintiff's motions, Doc.
No. 24 and 25, are hereby DENIED.
IT IS SO ORDERED this 15th day of April, 2014.

3