IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Steven S. Brown, :

 Plaintiff, : Case No. 2:13-cv-0006

 v. : JUDGE PETER C. ECONOMUS

 Magistrate Judge Kemp

Director Mohr, et al., :

 Defendants. :

REPORT AND RECOMMENDATION

This matter is before the Court to consider several pending

motions. These motions include plaintiff Steven S. Brown’s

motion for an order to protect his legal papers (Doc. 64), as

supplemented by an addendum (Doc. 72) and a document entitled

“Further Proof of Retaliation in Support of Motion for

Preliminary Injunction and Motion for an order to Protect

Plaintiff’s Legal Papers and Motion Excusing any Further

Requirement to Exhaust Administrative Remedies” (Doc. 73). Also

before the Court are Mr. Brown’s motion for an entry of default

(Doc. 78) and a motion to dismiss for insufficient service filed

on behalf of defendants Austin Stout, Greg Trout, Trevor Clark,

Director Mohr, Ryan Dolan, Nurse Smith and Ed Voorhies (Doc. 79). 

Additionally, Mr. Brown has filed a motion for an order directing

defendants to debit his prison account for copies and postage to

enable him to access the courts (Doc. 82), a motion for sanctions

(Doc. 90), a motion to stay (Doc. 94), and motions to supplement

previous filings (Docs. 95 and 102). For the following reasons,

it will be recommended that all of these motions be denied.

I. Background

Mr. Brown, a state prisoner, originally filed this action in

the Court’s Western Division in August, 2012. In his original

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complaint, Mr. Brown alleged numerous civil rights violations

against 45 individuals employed by the Ohio Department of

Rehabilitation and Correction and the Ohio Attorney General’s

Office. A Magistrate Judge in the Western Division screened the

complaint, dismissed several defendants and claims, severed the

claims relating to Mr. Brown’s incarceration at the Ross

Correctional Institution, and transferred the severed claims to

this Court. The surviving claims arising out of events while Mr.

Brown was incarcerated at the Southern Ohio Correctional Facility

remains pending in the Western Division as Case No. 1:12-cv-583.

I. The Motion for an Order to Protect Plaintiff’s Legal Papers

At the time Mr. Brown filed this motion, he was incarcerated

in the Ross Correctional Institution. The gist of his motion

appears to relate to his previous request for a preliminary

injunction and requests that the Court overrule the Report and

Recommendation recommending the denial of his request. In his

first addendum, he contends that he now has been transferred to

the SOCF and has been denied his legal papers. He also asserts a

number of other conditions he is being forced to endure at SOCF.

His document captioned as further proof of retaliation also

appears to relate to events at SOCF. 

To the extent that Mr. Brown intended this motion to

supplement his previous motion for a preliminary injunction, the

Court will recommend that the motion be denied as moot. The

Report and Recommendation recommending denial of the motion for

preliminary injunction has been affirmed on the issue of

injunctive relief. Further, to the extent that Mr. Brown’s

motion and related filings pertain to claims arising at RCI, his

request for injunctive relief was mooted by his transfer to SOCF. 

See Holson v. Good, 579 Fed Appx. 363, 366 (6th Cir. August 27,

2014), citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). 

To the extent that Mr. Brown’s supplemental filings relating to

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this motion address issues arising during his incarceration at

SOCF, these claims are not before this Court and are more

appropriately considered by the Court in Case No. 1:12-cv-583. 

On November 6, 2014, a Supplemental Report and Recommendation was

issued in Case No. 1:12-cv-583 recommending that Mr. Brown’s

motion be denied. Consequently, it will be recommended that the

Court decline to consider such claims in this case. 

II. The Motion for Entry of Default

In his motion for an entry of default, Mr. Brown requests

that the Court “issue a default judgment against Defendants,

Mohr, Dolan, Voorhies, Trout, Stout, Clark, Eddy, [and]

Reese....” The gist of Mr. Brown’s motion is that these

defendants were served with the complaint in Case No. 1:12-cv-583

and have not filed an answer in this case. Contrary to his

previously expressed positions, Mr. Brown apparently believes

that, regardless of whether these defendants were ever served in

this case, they “were given proper notice of the claims” in this

case, and therefore, he is entitled to a default judgment

granting his requested relief. 

There are several problems with Mr. Brown’s position, the

well-documented service issues in this case aside. First, as the

Court noted in its Report and Recommendation issued April 29,

2014, defendants Eddy and Reese are not named as defendants in

this transferred case. Further, Mr. Brown confuses an entry of

default and a default judgment. They are two distinct procedural

steps taken in sequence. That is, an entry of default is

required before a default judgment can be entered. See O’Neal v.

Nationstar Mortgage, 2008 WL 3007834, *6 (S.D. Ohio August 1,

2008), citing United Coin Meter Co. v. Seaboard Coastline R.R.,

705 F.2d 839, 844 (6th Cir. 1983). However, Fed.R.Civ.P. 55(a)

provides that a default cannot be entered against a party unless

that party has failed to plead or otherwise defend. The Advisory

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Committee Notes to the 2007 Amendments to Rule 55 explain the

phrase “to otherwise defend,” and state as follows:

Former Rule 55(a) directed the clerk to enter a

default when a party failed to plead or otherwise

defend “as provided by these rules.” The implication

from the reference to defending “as provided by these

rules” seemed to be that the clerk should enter a

default even if a party did something showing an intent

to defend, but that act was not specifically described

by the rules. Courts in fact have rejected that

implication. Acts that show an intent to defend have

frequently prevented a default even though not

connected to any particular rule. 

See also Ross v. Creative Image Technologies, LLC, 2013 WL

2404234, *1 (W.D. Ky. May 31, 2013)(The Advisory Committee Notes

“confirm the view that Rule 55(a) does not require a responsive

pleading or Rule 12(b) motion”). As contemplated by Rule 55(a),

the other defendants - Mohr, Dolan, Voorhies, Trout, Stout and

Clark - are actively defending this case by the filing of a Rule

12(b)(5) motion. As a result, Mr. Brown has not demonstrated

grounds for an entry of default or, by extension, a default

judgment. Consequently, the Court will recommend that Mr.

Brown’s motion be denied.

III. The Motion to Dismiss

 Turning to the motion to dismiss under Rule 12(b)(5),

defendants Mohr, Dolan, Voorhies, Trout, Stout, Smith, and Clark

cite to the Report and Recommendation issued April 29, 2014, in

which the Court directed Mr. Brown to submit “a service copy of

the complaint, a completed summons and a USM-285 for defendants

Stout, Trout, Clark, Mohr, Dolan, Eleby, Voorhies and Smith

within fourteen days of the date of this order.” According to

these defendants, Mr. Brown has not done so and, beyond this,

they argue Mr. Brown has failed to perfect service on them since

this case originally was severed in January, 2013 - a lapse of

more than 600 days.

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In his response, Mr. Brown argues, consistent with his

position raised in many of his other filings, that he has been

unable to perfect service for numerous reasons including actions

by the Court and the defendants. He contends that service in the

other case has provided sufficient notice to constitute service

in this case. 

In reply, defendants argue that Mr. Brown cannot rely on

service in the other case to satisfy his service obligations

here. Further, they contend that there is no evidence that he

has attempted to serve defendants Mohr and Clark. Additionally,

defendants contend that Mr. Brown’s interpretation of the time

allowed for him to satisfy his service obligations is incorrect. 

Finally, defendants assert that Mr. Brown’s pro se status does

not excuse his failure to timely serve the unserved defendants.

Under Fed.R.Civ.P. 12(b)(5), a complaint may be attacked for

insufficient service of process. “A Rule 12(b)(5) motion is the

proper vehicle for challenging the failure to deliver a summons

and complaint in accordance with Rule 4(m).” Schmidt v.

Jefferson County Bd. of Ed., 2014 WL 1877669 (W.D. Ky. May 9,

2014), citing 5B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE CIVIL §1353 (3d ed.).

Fed.R.Civ.P. 4(m) provides:

If a defendant is not served within 120 days after

the complaint is filed, the court - on motion or on its

own after notice to the plaintiff - must dismiss the

action without prejudice against that defendant or

order that service be made within a specificed time. 

But if the plaintiff shows good cause for the failure,

the court must extend the time for service for an

appropriate period.

The Court’s obligation under Rule 4(m) was recently 

explained in Greene v. Venatter, 2014 WL 559154, *2 (S.D. Ohio

February 11, 2014):

The first clause of Federal Rules of Civil

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Procedure 4(m) shows that a district court shall either

(1) dismiss a complaint without prejudice, or (2)

direct that service be made within a specified time, if

a plaintiff fails to serve a summons and complaint

within 120 days after filing the complaint. Osborne v.

First Union Nat. Bank of Delaware, 217 F.R.D. 405, 406

(S.D Ohio 2003). The second clause of Rule 4(m) states

that a district court shall extend the time for service

if a plaintiff demonstrates good cause for failing to

comply with the 120-day time requirement. Id. A plain

reading of these two clauses shows that a district

court generally possesses the discretion to dismiss a

complaint to allow service to be perfected within a

specified time, regardless of the absence of good

cause, whenever a plaintiff fails to perfect service

within 120 days after filing a complaint. Id. The

second clause then removes a district court’s

discretion if a plaintiff establishes good cause for

his failure to comply with the 120-day time limit. Id. 

Upon a showing of good cause, a district court shall

extend the time for service. Further, the Supreme

Court supports this reading of Rule 4(m). See

Henderson v. United States, 517 U.S. 654, 116 S.Ct.

1638, 134 L.Ed.2d 880 (1996). The Supreme Court cited

the Advisory Committee Notes of Federal Rules of Civil

Procedure 4(m), stating that Rule 4(m) permits a

district court to enlarge the time for service “even if

there is no good cause shown.” Id. at 662. 

See also Bradford v. Bracken County, 767 F.Supp.2d 740, 753 (E.D.

Ky. 2011)( “the Court must first determine whether there is good

cause for Plaintiff’s failure to timely execute service. If not,

the Court must determine in its discretion whether to dismiss the

action or allow Plaintiffs additional time”). 

The Court’s docket indicates that the issue of service has

dominated this case to date. Several of the issues have been

addressed in prior Court orders and will not be repeated in

detail here. Using the Report and Recommendation dated April 29,

2014 as the starting point, as the defendants have done in their

motion, the Court’s docket reflects that service has not been

perfected as ordered. However, the docket also reflects that Mr.

Brown has sought extensions of time to complete service. Mr.

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Brown also has filed numerous motions relating to his transfer

from RCI to SOCF, the alleged confiscation of his legal

materials, and the Clerk’s failure to provide him with requested

copies of service documents. He also filed objections to the

Report and Recommendation, including an objection relating to the

time frame ordered for service. Mr. Brown’s objections to the

Report and Recommendation were overruled by order dated October

24, 2014. See Doc. 87. By separate order, the Court granted

defendants’ motion to strike the amended complaint and directed

Mr. Brown to file a third amended complaint which complies with

the previous orders of this Court (Doc. 92). Mr. Brown was given

thirty days from the filing of the amended complaint to properly

serve defendants. 

Based on the language of Rule 4(m) and the Court’s recent

orders, the Court will recommend that defendants’ motion to

dismiss be denied. Between Mr. Brown’s requests for extensions

of time, his representations that he has been unable to obtain

enough copies of required service documents, and the Court’s

recent direction regarding the filing of a third amended

complaint, the Court finds that good cause exists for an

extension of the service deadline as to the moving defendants. 

Further, the Court will recommend that Mr. Brown’s motion to stay

a decision on the motion to dismiss be denied as moot.

IV. Motion for Order to Debit Plaintiffs Account 

for Copies and Postage

Additionally, Mr. Brown has filed a motion for an order

directing defendants to debit his prison account for copies and

postage to enable him to access the courts (Doc. 82). As with

his motion for an order to protect his legal papers, the Court

finds that this motion relates to Mr. Brown’s confinement in 

SOCF. Consequently, it will be recommended that the Court

decline to consider the issues raised in this motion.

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V. Motion for Sanctions for Refusing to Waive Service

Mr. Brown has moved for sanctions under Rule 4 contending

that certain defendants have not attempted to avoid unnecessary

expense and have instead thwarted his attempts to move forward

with this case. He requests that defendants be ordered to pay

all expenses for service upon defendants Mohr, Trout, Stout,

Dolan, Eddy, Voorhies, Reese and Smith.

 In response, defendants contend that Mr. Brown’s motion

must be denied because the language of Rule 4(d)(2) requires

payment for expenses incurred in making service and Mr. Brown has

not incurred any expenses because he has not completed service on

the defendants he identifies. Further, defendants assert that

the motion must be denied because Mr. Brown did not properly

request waiver of service in accordance with Rule 4(d)(1). Mr.

Brown did not file a reply.

The Court agrees with the defendants’ interpretations of

Rule 4(d) and defendants’ position that Mr. Brown is seeking

sanctions inconsistent with the Rule. Consequently, it will

recommend that the motion for sanctions be denied.

VI. Motions to Supplement

Finally, Mr. Brown has filed two motions to supplement

numerous other filings he has made, all of which are in varying

procedural postures and some of which relate to his confinement

at SOCF. He does not connect with any specificity the

supplemental information and the previous motion to which it

allegedly relates. The Court has reviewed the proposed

supplemental information and concludes that it does not present

anything new for the Court’s consideration. Consequently, the

Court will recommend that the motions to supplement be denied. 

VII. Recommendation

For the reasons set forth above, the Court recommends that

the motion for an order to protect plaintiff’s legal papers (Doc.

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64 as supplemented by Docs. 72 and 73) be denied as moot to the

extent it is directed to the Report and Recommendation issued on

April 29, 2014 or pertains to events at RCI. Further, the Court

recommends that the motions for an entry of default (Doc. 78), to

dismiss (Doc. 79), for sanctions (Doc. 90), and to supplement

(Docs. 95 and 102) be denied and that the motion to stay a

decision on the motion to dismiss (Doc. 94) be denied as moot.

Finally, the Court recommends that the Court decline to consider

the issues raised in Mr. Brown’s motion for an order directing

defendants to debit his prison account for copies (Doc. 82) and

that this motion be removed from this Court’s pending motions

list. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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 /s/ Terence P. Kemp 

 United States Magistrate Judge

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