IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

KENNETH A. THOMAS §

VS. § CIVIL ACTION NO. 9:23-CV-68

SERGIO J. PEREZ, JR., ET AL. § 

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

REGARDING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

Plaintiff Kenneth A. Thomas, an inmate confined at the Duncan Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil

rights action pursuant to 42 U.S.C. § 1983 against Sergio J. Perez, Jr., Heather M. Glover, Bryan

Collier, and Bobby Lumpkin. 

This action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for

findings of fact, conclusions of law, and recommendations for the disposition of the case.

Analysis

Plaintiff moved for default judgment against the defendants. (Doc. #11.) Federal Rule of

Civil Procedure 55(a) authorizes the entry of a default judgment against a party against whom a

judgment for affirmative relief is sought when such party fails to plead or otherwise respond to the

action. A default judgment is a discretionary remedy. Effjohn Int’l Cruise Holdings, Inc. v. A&L

Sales, Inc., 346 F.3d 552, 563 (5th Cir. 2003). The United States Court of Appeals for the Fifth

Circuit generally favors resolving cases on the merits, but has found that considerations of social

goals, justice, and expediency may warrant the exercise of the district court’s discretion to grant a

default judgment. In re Chinese Manufactured Drywall Prod. Liab. Litig., 742 F.3d 576, 594 (5th

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Cir. 2014). Because the entry of judgment by default is a drastic remedy, it should be used only in

extreme situations. E.F. Hutton &Co. v. Moffat, 460 F.2d 284, 285 (5th Cir. 1972); see also Effjohn,

346 F.3d at 563 (emphasizing that defaults are not favored and any doubts should be resolved in

favor of the defendant). It is only appropriate where there has been a clear record of delay or

contumacious conduct. Moffat, 460 F.2d at 285. 

A necessary prerequisite to the entry of a default judgment is that the party against whom

such a judgment is sought must have been served with process compelling the party to plead or

otherwise respond to the action. Federal Rule of Civil Procedure 4(e) states that individuals may be

served either: (1) pursuant to the laws of the state in which the court is located or (2) by delivering

a summons and a copy of the complaint to the individual personally, by leaving such documents at

the individual’s dwelling house or usual place of abode or by delivering such documents to any agent

authorized by appointment or by law to receive service of process.

Plaintiff attempted to serve the defendants by certified mail, as permitted under the laws of

the State of Texas. See TEX.R.CIV.P. 106(a)(2). When service is made by certified mail, the return

of service must contain the addressee’s signature. TEX. R. CIV. P. 107(c). In this case, the returns

of service do not contain the signatures of the defendants. The absence of the defendants’ signatures

from the returns of service renders service invalid. Because the defendants have not been properly

served, Plaintiff’s motion for default judgment should be denied.

Recommendation

Plaintiff’s motion for default judgment should be denied.

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Objections

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings of facts, conclusions of law and recommendations of the

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

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72. 

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___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 30th day of June, 2023.

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