United States District Court, D. South Carolina
Rodney E. Cotton, Jr., Plaintiff,
Major Patricia Ray and Demarcus Cooks, Defendants.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
action has been filed by the Plaintiff, pro se, pursuant to
42 U.S.C. § 1983.Plaintiff is a pretrial detainee at the
Darlington County Detention Center (DCDC). The named
Defendants are employees at the Detention Center.
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.
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].
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
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
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).
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
Robin L. Blume, Clerk United States District Court Post
Office Box 835 Charleston, South Carolina 29402
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).
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."
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