Coburn v Miller et al

Filing 31

ORDER denying 15 Motion for Default Judgment. Signed by Magistrate Judge Charles B Goodwin on 06/28/2017. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHAD A. COBURN,
Plaintiff,
v.
CHAD MILLER et al.,
Defendants.

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Case No. CIV-15-642-HE

ORDER
Prior to the Court authorizing service of Plaintiff’s complaint on Defendants, or the
United States Marshals Service (“USMS”) attempting to serve any Defendant, Plaintiff
Chad A. Coburn—a state prisoner appearing pro se and proceeding in forma pauperis in
this 42 U.S.C. § 1983 action—filed a document titled “Summary and Default,” in which
he asks that judgment be granted in his favor due to Defendant’s failure to respond. See
Summary and Default (Doc. No. 15); Order Requiring Serv. & Special R. (Doc. No. 16) at
1-3. Plaintiff’s motion (Doc. No. 15) is DENIED without prejudice as premature. See
Ashby v. McKenna, 331 F.3d 1148, 1152 (10th Cir. 2003) (“[G]iven the prescriptive
guidance of the applicable rules of procedure,” it would be “incorrect as a matter of law”
for the Clerk to enter a person’s default before he or she “had any obligation to file an
answer” or other responsive motion); Fed. R. Civ. P. 55(a) (“When 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.”).
The Court notes, however, that the docket in this matter shows that, following
Plaintiff’s proper completion of requests for summonses (several months after the filing of

the Summary and Default), the USMS attempted to serve and has filed executed returns of
service for Defendants Amin, Battles, Hilligoes, and Mayhem. See Battles Return (Doc.
No. 25); Amin Return (Doc. No. 26); Hilligoes Return (Doc. No. 27); Mayhem Return
(Doc. No. 28); Order to Show Cause (Doc. No. 30) at 2 (“Each executed return indicates
that on March 20, 2017, process was served on an individual identified as the ‘Warden’s
Secretary’ at Cimarron Correctional Facility.”). None of these named Defendants has
entered an appearance in this matter or filed an answer or other responsive motion within
the 60-day period set by the Court. See Order Requiring Serv. & Special R. at 3; 42 U.S.C.
§ 1997e(g)(2).
If Plaintiff wishes to pursue a default judgment against any of these four defendants,
he must follow the procedures specified in Federal Rule of Civil Procedure 55. Failure to
take appropriate action within a reasonable time may result in dismissal of Plaintiff’s
claims. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (recognizing district
courts’ inherent authority to “clear their calendars of cases that have remained dormant
because of the inaction or dilatoriness of the parties seeking relief”).
IT IS SO ORDERED this 28th day of June, 2017.

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