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Cotton v. Ray

United States District Court, D. South Carolina

September 19, 2019

Rodney E. Cotton, Jr., Plaintiff,
v.
Major Patricia Ray and Demarcus Cooks, Defendants.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983.[1]Plaintiff is a pretrial detainee at the Darlington County Detention Center (DCDC). The named Defendants are employees at the Detention Center.

         By Order filed June 11, 2019, Plaintiff was granted IFP status with service of the summons and Complaint to be completed by the United States Marshal. Completed process receipts were subsequently filed with the Court on July 8, 2019, showing service of the pleadings on the Defendants on June 20, 2019. See Court Docket No. 11. However, no responsive pleadings were ever filed, and on August 29, 2019 the pro se Plaintiff filed a motion for default judgment. As the process receipts did not contain signatures from either Defendant acknowledging receipt, out of an abundance of caution since neither Defendant was served with the motion for default judgment, the undersigned had the Clerk send a copy of that motion separately to both Defendants as well as to the County Attorney for Darlington County. The County Attorney has now entered an appearance for both Defendants, and has filed responses asking that the Plaintiff's motion for a default judgment be denied and that the Defendants be granted fourteen (14) days to file responsive pleadings.

         Although there has been no entry of a default judgment in this case, the rules for setting aside the entry of a default are nonetheless instructive. “When deciding whether to set aside an entry of default, a district court should consider whether the moving party has a meritorious defense, whether it acts with reasonable promptness, the personal responsibility of the defaulting party, the prejudice of the party, whether there is a history of dilatory action, and the availability of sanctions less drastic.” Payne el rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-205 (4th Cir. 2006). Here, the County Attorney has acted with reasonable promptness to appear for the Defendants once being placed on notice of the pendency of the action and avers that the Defendants will assert a meritorious defense in the case. The undersigned can also discern no prejudice to the Plaintiff occasioned by the delay in a responsive pleading having been filed in this case. Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., 616 F.3d 413, 419 (4th Cir. 2010) [Prejudice may not be found from delay alone or from the fact that the defaulting party will be permitted to defend on the merits].

         Therefore, it is recommended that Plaintiff's motion for entry of a default judgment be denied, and that the Defendants' motions to be allowed fourteen (14) days from the entry of any order of the Court to file their responsive pleading be granted. See Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969)[“Any doubts about whether relief should be granted should be resolved in favor of setting aside the default so that the case may be heard on the merits”]; Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir. 1987) [Motion to set aside default should be liberally construed in order to provide relief from the consequences of a default]; United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982)[“[T]he clear policy of the Rules is to encourage disposition of claims on their merits”].

         The parties are referred to the Notice Page attached hereto.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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Notes:

[1]42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver,510 U.S. 266, 271 (1994) (quoting Baker v. McCollan,443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey ...


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