United States District Court, N.D. Mississippi, Greenville Division
M. BROWN, UNITED STATES DISTRICT JUDGE.
prisoner civil rights action is before the Court for sua
sponte reconsideration of United States Magistrate Judge
David A. Sanders' September 13, 2017, order denying Chaz
Pinkston's motion for entry of default. Doc. #38.
about March 24, 2017, Chaz Pinkston, acting pro se, filed a
complaint in this Court. Doc. #1. The complaint names as
defendants the Mississippi Department of Corrections and
various individuals, including Keba Taylor.
August 14, 2017, following a Spears hearing, United
States Magistrate Judge David A. Sanders issued an order
stating, in relevant part:
Counsel for the Mississippi Department of Corrections
(“MDOC”) has agreed to accept service of process
on behalf of Defendants. A responsive pleading is due on
behalf of the defendants by September 5, 2017. Should counsel
accepting service demonstrate that he cannot represent the
defendant, he must notify the court immediately of the
defendant's last known address so the court may effect
process upon that defendant under 28 U.S.C. § 1915(d).
Doc. #16 at 1 (emphases omitted).
did not file an answer by September 5, 2017. On or about
September 6, 2017, Pinkston filed against Taylor a motion
seeking entry of default and a motion for default judgment.
Doc. #35; Doc. #36. On September 13, 2017, Taylor, without
seeking leave of the Court, filed an untimely answer. Doc.
#37. The same day, Judge Sanders issued an order denying
Pinkston's motion for entry of default on the ground that
this Court likely would not grant a default judgment because
Taylor filed an answer and because the Prison Litigation
Reform Act does not allow for entry of a default judgment.
to Federal Rule of Civil Procedure 54(b), “any order
… that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties …
may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” Orders regarding entry of default, as
opposed to entry of default judgment, are subject to this
rule. See generally City of N.Y. v. Mickalis Pawn Shop,
LLC, 645 F.3d 114, 129 (2d Cir. 2011) (entry of default
is interlocutory act).
Court concludes that Judge Sanders' order denying
Pinkston's motion for entry of default against Taylor
must be modified. As an initial matter, “[p]rovided the
request for entry of default complies with the procedural
requirements of Rule 55(a) … the Rule's mandatory
language vests no discretion … regarding whether a
default can be entered.” In re Galan, 522 B.R.
744, 751 (W.D.N.Y. 2014) (quotation marks omitted). Rule
55(a), in turn, directs that “[w]hen 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.” There is no dispute that Pinkston's
motion for entry of default established that Taylor failed to
plead or otherwise defend Pinkston's complaint. It
therefore was improper to deny Pinkston's motion for
entry of default against Taylor.
the propriety of default judgment could justify denial of
entry of default, it would not do so in this case. While it
is true that the Prison Litigation Reform Act ordinarily
precludes entry of default judgment, default judgment is
allowed under the Act where, as here, a defendant has been
ordered to answer by a certain date and fails to do so.
See Adams v. Smith, No. 3:13-cv-985, 2014 WL 811992,
at *2-3 (S.D. Ill. Mar. 3, 2014) (citing 42 U.S.C. §
1997(g)(2)); see also Steele v. Wetzel, No. 14-4823,
2015 WL 7730938, at *2 (E.D. Pa. Nov. 6, 2015)
(“Plaintiff is subject to the PLRA, and the Court may
not enter default judgment against Defendant Ganues
unless he failed to follow a court order requiring him to
respond to the Complaint.”) (emphases added);
Halpin v. David, No. 4:06-cv-457, 2008 WL 5663943,
at *2 (N.D. Fla. Dec. 8, 2008) (“Defendants have not
presented any case law to support the argument that §
1997e(g) immunizes a Defendant from a default after being
ordered to respond.”). Furthermore, in the absence of a
motion to set aside default or a response to Pinkston's
motion for default judgment, this Court cannot determine
whether default judgment would in fact be denied.
Judge Sanders' September 13, 2017, order  is
VACATED. The Clerk of the Court is
DIRECTED to enter default against Taylor.
Within fourteen (14) days of this order, Taylor may file a
response to Pinkston's motion for default judgment and/or
file a motion to set aside default.