* After examining the briefs and the record, we have concluded that oral argument is

unnecessary.  Thus, the appeal is submitted on the briefs and the record.  See FED. R. APP. P.

34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 25, 2009*

Decided March 26, 2009

Before

WILLIAM J. BAUER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08‐2719

WILLIAM CANNON, JR.

           Plaintiff‐Appellant,

v.

ODIE WASHINGTON, et al.,

Defendants‐Appellees.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 98 C 447

David Herndon,

Chief Judge.

O R D E R

Illinois prisoner William Cannon, Jr., sued more than fifty persons after he was

allegedly beaten by guards in 1996 and again in 1998.  The district court initially concluded

that Cannon had not exhausted his administrative remedies and granted summary

judgment for the defendants, but in a previous appeal we rejected the court’s exhaustion

analysis as to the events in 1998.  Cannon v. Washington, 418 F.3d 714 (7th Cir. 2005).  On

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐2719 Page 2

remand, the case against the seven remaining defendants proceeded to a jury trial, where

the defendants prevailed.  We affirm the judgment.

After our remand a magistrate judge issued a scheduling order for discovery and

motions on Cannon’s claim that the remaining defendants were liable for the 1998 attack.

About six weeks later those defendants realized they had never filed an answer to Cannon’s

complaint, and so they tendered their answer along with a motion to file it.  The magistrate

judge granted that motion the same day, and the answer was accepted by the clerk of the

court.  A few days earlier, however, Cannon had mailed his motion for entry of a default

judgment.  He reasoned that the defendants had effectively admitted his factual allegations

by moving for summary judgment on the exhaustion question without first answering his

complaint.  Cannon also mailed a separate motion asking for summary judgment on the

same ground.  The magistrate judge, who received Cannon’s motions after the answer had

been filed, denied the motion for a default judgment and also recommended that the district

court deny the motion for summary judgment.   The district court agreed.  On appeal

Cannon makes no argument about the trial or the jury’s verdict.  Instead he contends that he

should have been awarded a default judgment (or summary judgment, but we discern no

distinction between the two forms of relief that Cannon requested).

Federal Rule of Civil Procedure 55 authorizes the entry of default judgment against a

party that “has failed to plead or otherwise defend.”  See FED. R. CIV. P. 55(a), (b)(2).  We

review a district court’s refusal to enter a default judgment for abuse of discretion.  Silva v.

City of Madison, 69 F.3d 1368, 1377 (7th Cir. 1995).  Although application of the prison

“mailbox rule” may mean that, technically, Cannon’s request for a default judgment was

filed before the defendants sought leave to file their answer, see Houston v. Lack, 487 U.S.

266, 276 (1988); Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001), it makes no

difference because Cannon cannot show that he was entitled to entry of a default.  The

defendants had not refused to participate in the litigation—indeed, they had complied with

discovery and were proceeding to dispute Cannon’s claim on its merits.  Even in the

absence of a responsive pleading, they had not failed to “otherwise defend” the suit.  See

10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND

PROCEDURE § 2682 (3d ed. 2008) (explaining that motions challenging sufficiency of

pleadings are sufficient to “otherwise defend” against lawsuit); Rashidi v. Albright, 818 F.

Supp. 1354, 1356 (D. Nev. 1993) (concluding that filing motion for summary judgment

constitutes defense against lawsuit for purposes of Rule 55); Wickstrom v. Ebert, 101 F.R.D.

26, 33 (E.D. Wis. 1984) (concluding that filing motion to dismiss constitutes defense against

lawsuit for purposes of Rule 55).  Because the defendants were not in default, there was no

basis to enter a default judgment.  Moreover, even if there had been a default, we would not

remand for entry of a default judgment after a trial on the merits because “[u]sing a default

judgment to strip the winner of its rights, in response to non‐prejudicial neglect, cannot be
No. 08‐2719 Page 3

appropriate.  It would be a pointless windfall.”  Mommaerts v. Hartford Life & Accident Ins.

Co., 472 F.3d 967, 968‐69 (7th Cir. 2007)

Cannon also contends that in his previous appeal we should have overturned the

district court’s exhaustion analysis across the board and remanded his claim about the

events in 1996, not just the assault in 1998.  Cannon cannot use this appeal as a forum to

seek reconsideration of our decision in the earlier one.  Starcon Int’l, Inc. v. Int’l Bhd. of

Boilermakers, 450 F.3d 276, 278 (7th Cir. 2006); Connolly v. Laidlaw, Inc., 233 F.3d 451, 453 (7th

Cir. 2000); Vidimos, Inc. v. Wysong Laser Co., 179 F.3d 1063, 1065‐66 (7th Cir. 1999).

AFFIRMED.