### 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 motio ns for summary judgment. For the reasons explained below, we AFFIRM.

* Pursua nt to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 30, 2019

Lyle W. Cayce Clerk Case: 19-60113 Document: 00515099031 Page: 1 Date Filed: 08/30/2019No. 19

- 60113

2 I. Ruben Benitez, proceeding pro se, is an inmate serving a life sentence for murder in the state of Mississippi. After unsuccessfully appealing th r ough
t he Mississippi state court syste m, 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. T he Court denied Benitez’ s motion. Around two weeks later, Benitez filed an “Application to Individual Justice Supreme Court of the United S tates for Fifth District,” which was docketed as a motion for reconsideration of the Court’s denial of Benitez’s motion to proceed in forma

p auperis. 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 C lerk of the Supreme Court of the United States

. Benite z 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 “ M otion 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 Case: 19-60113 Document: 00515099031 Page: 2 Date Filed: 08/30/2019No. 19

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3 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 mo tion for summary judgment following the magistrate judge’s recommendation, this time simply reciting the summary

judgment standard , saying it had been met , and recounting the operative facts underlying his original summary

- judgment argument

. T he 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 qu alified immunity on Benitez’s claims. The district court adopted th e 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. G a.
- Pac

. , L.L.C. , 819 F.3d 758, 762, 765 (5th Cir. 2016). We review a district court’s denial of a motion fo r 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 motion s 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 pr eserved.” (quoting Price v. Digital Equip. Corp. , 846 F.2d 1026, 1028 (5th Cir. 1988 ))). Case: 19-60113 Document: 00515099031 Page: 3 Date Filed: 08/30/2019No. 19

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4 from Atkins to h is summons and complaint, Benitez in essence sought a default judgment . W e 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 default

judgment 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 judgmen t” 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 dis trict 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, t he 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 s how 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 Case: 19-60113 Document: 00515099031 Page: 4 Date Filed: 08/30/2019No. 19

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5 there is a causal connection between his alleged conduct and his authority: each of B enitez’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. Case: 19-60113 Document: 00515099031 Page: 5 Date Filed: 08/30/2019