IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60113

Summary Calendar

RUBEN ORLANDO BENITEZ, 

 Plaintiff - Appellant

v.

JEFFREY ATKINS, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi 

USDC No. 1:17-CV-233

Before KING, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

The district court dismissed Ruben Benitez’s action against Jeffrey 

Atkins. Benitez appeals, arguing that the district court should have granted 

his motion to remand to state court or granted his motions for summary 

judgment. For the reasons explained below, we AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 30, 2019

Lyle W. Cayce

Clerk

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I.

Ruben Benitez, proceeding pro se, is an inmate serving a life sentence 

for murder in the state of Mississippi. After unsuccessfully appealing through 

the Mississippi state court system, Benitez sought review of his sentence and 

conviction in the United States Supreme Court by filing a petition for a writ of 

certiorari. Concurrent with his petition, Benitez filed a motion for leave to 

proceed in forma pauperis. The Court denied Benitez’s motion. Around two 

weeks later, Benitez filed an “Application to Individual Justice Supreme Court 

of the United States for Fifth District,” which was docketed as a motion for 

reconsideration of the Court’s denial of Benitez’s motion to proceed in forma 

pauperis. The Court denied that motion as well and thereafter closed the case. 

Feeling aggrieved, Benitez filed suit in Mississippi state court against 

Jeffrey Atkins, an employee of the Office of the Clerk of the Supreme Court of 

the United States. Benitez alleged that Atkins denied him due process and 

engaged in “conspiracy” and “intimidation” in the course of handling Benitez’s 

motion for leave to proceed in forma pauperis. Atkins removed the case to 

federal court under 28 U.S.C. §§ 1442(a)(3) and 1446, which allow for the 

removal of certain cases brought against federal officers. Following removal, 

Atkins timely requested a 30-day extension of time to file an answer, which the 

district court granted. Around the same time, Benitez filed a “Motion to 

Rescind Removal Notice,” which the district court treated as a motion to 

remand and denied. Benitez also filed a motion for summary judgment. Atkins 

then filed another timely motion for an extension, this time for seven days, 

which the district court again granted. Seven days later, Atkins filed his 

answer. Benitez then filed a document entitled “Redintragation [sic] of 

Summary Judgment.” Benitez’s motion for summary judgment and 

subsequent filing both stated in essence that Atkins failed to respond to the 

summons and complaint and that judgment should therefore be awarded in 

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Benitez’s favor. The motion was referred to a magistrate judge, who

recommended it be denied. The district court adopted the magistrate judge’s 

recommendation. 

Benitez filed another motion for summary judgment following the 

magistrate judge’s recommendation, this time simply reciting the summaryjudgment standard, saying it had been met, and recounting the operative facts 

underlying his original summary-judgment argument. The magistrate judge 

recommended the second motion for summary judgment be denied, and the 

district court adopted this recommendation.

At some point in this flurry of filing, Atkins also filed a motion to dismiss, 

arguing, among other things, that he was entitled to qualified immunity on

Benitez’s claims. The district court adopted the magistrate judge’s

recommendation that the motion be granted, entered final judgment, and 

dismissed the case with prejudice. Benitez now appeals, challenging the 

denials of his motions for summary judgment as well as the denial of his motion 

to remand.1

II.

A district court’s denial of a motion for summary judgment and motion 

to remand both present questions of law, which we review de novo. Davidson 

v. Ga.-Pac., L.L.C., 819 F.3d 758, 762, 765 (5th Cir. 2016). We review a district 

court’s denial of a motion for default judgment for abuse of discretion. Lewis v. 

Lynn, 236 F.3d 766, 767 (5th Cir. 2001).

First, the district court did not err in denying Benitez’s motions for 

summary judgment. In seeking summary judgment based on a lack of response 

 

1 Benitez’s brief does not discuss the district court’s grant of Atkins’s motion to 

dismiss. We therefore treat any challenge to that order as waived. See Yohey v. Collins, 985 

F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe the briefs of pro se appellants, 

we also require that arguments must be briefed to be preserved.” (quoting Price v. Digital 

Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988))).

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from Atkins to his summons and complaint, Benitez in essence sought a default 

judgment. We have held that “[d]efault judgments are a drastic remedy, not 

favored by the Federal Rules and resorted to by courts only in extreme 

situations.” Lewis, 236 F.3d at 767 (alteration in original) (quoting Sun Bank 

of Ocala v. Pelican Homestead & Sav. Ass’n., 874 F.2d 274, 276 (5th Cir. 1989)).

Accordingly, even where the opposing party is technically in default, a party is 

not entitled to default judgment if the district court, within its discretion,

determines that entry of default judgment is not warranted. See id. Here, no 

basis whatsoever existed for the entry of default, much less entry of a defaultjudgment order: Atkins had successfully sought an extension of time to answer

Benitez’s complaint. Cf. Fed. R. Civ. P. 6(b) (authorizing court to extend time 

“[w]hen an act may or must be done within a specified time”). Benitez filed his 

first “motion for summary judgment” before Atkins’s time to answer had 

expired. And Benitez filed his second motion after Atkins filed his answer. 

Thus, Atkins was not in default because he had not “failed to plead or otherwise 

defend” against the complaint. Fed. R. Civ. P. 55(a). The district court therefore 

did not err in denying Benitez’s motion.

Second, the district court did not err in denying Benitez’s motion for 

remand. Federal statute allows for the removal of cases brought against “[a]ny 

officer of the courts of the United States, for or relating to any act under color 

of office or in the performance of his duties.” 28 U.S.C. § 1442(a)(3). Under this 

statute, the officer must “establish that the suit is ‘for a[n] act under color of 

office,’ . . . . To satisfy [this] requirement, the officer must show a nexus, a 

‘“causal connection” between the charged conduct and asserted official 

authority.’” Jefferson County v. Acker, 527 U.S. 423, 431 (1999) (alteration in 

original) (emphasis omitted) (citations omitted). The officer must also show 

that he seeks to raise a colorable federal defense, such as immunity. See id. It 

is beyond dispute that Atkins is an officer of a federal court. It is also clear that 

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there is a causal connection between his alleged conduct and his authority: 

each of Benitez’s allegations relates to Atkins’s actions as an employee of the 

Clerk’s office. Finally, Atkins raises a colorable defense of qualified immunity, 

which this court has previously afforded to a clerk of a federal court in a 

damages suit such as this. See Williams v. Wood, 612 F.2d 982, 984-85 (5th 

Cir. 1980). Thus, the requirements of the federal-officer removal statute have 

been met, and removal in this case was proper. 

The judgment of the district court is AFFIRMED. 

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