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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

DAVID L. JOHNSON, AIS 134016, : 

Plaintiff, : 

vs. : CA 11-0228-CG-C 

PENTON ASHWORTH, et al., : 

Defendants. 

REPORT AND RECOMMENDATION

 This action is before the Court on plaintiff’s motion for entry of default judgment 

(Doc. 99; see also Doc. 100 (supporting affidavit))—wherein Johnson states he is moving 

for entry of a default judgment against defendant Donald Bell (Doc. 99, at 1)1—and has 

been referred to the undersigned, in accordance with 28 U.S.C. § 636(b)(1)(B) and Local 

Rule 72.2(c)(4), for appropriate action. 

 Plaintiff initiated this civil rights action, pursuant to 42 U.S.C. § 1983, against Bell 

and five other defendants by filing a complaint in this Court on May 6, 2011. (Doc. 1.) 

Johnson now seeks entry of a default judgment against defendant Bell. (Doc. 99.) On 

 

1 Plaintiff’s concurrent application to the Clerk of Court for entry of default against 

Donald Bell (Doc. 101) is MOOT inasmuch as the Clerk entered default against Donald Bell, for 

failure to plead or otherwise defend, on February 29, 2012 (Doc. 50). 

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November 22, 2011, a Notice of Lawsuit and Request for Waiver of Service of Summons 

was sent to Bell at the address provided by the Alabama Department of Corrections 

(Doc. 43) and, on January 9, 2012, Bell executed a Waiver of Service of Summons (Doc. 

47), and thereby acknowledged his understanding that judgment could be entered 

against him if an answer or special report was not filed by him on or before January 23, 

2012 (see id.). When Bell did not answer the complaint or file a special report by January 

23, 2012 (compare id. with Docket Sheet), the Court, on February 28, 2012, ordered the 

Clerk of Court to proceed with entry of default against Bell (Doc. 49) and such entry of 

default was made on February 29, 2012 (Doc. 50). 

 There are two separate and distinct steps in the process for obtaining a default 

judgment, see, e.g., Elektra Entertainment Group v. Freeman, 2007 WL 1837130, *2 (M.D. Ala. 

Jun. 26, 2007), “that cannot be combined into one.” Travelers Cas. & Surety Co. of America, 

Inc. v. East Beach Dev., LLC, 2007 WL 4097440, *1 (S.D. Ala. Nov. 14, 2007). The moving 

party must first seek the entry of default by the clerk of court, compare Elektra 

Entertainment Group, supra with Fed.R.Civ.P. 55(a) (“When a party against whom a 

judgment for affirmative relief is sought has failed to plead or otherwise defend, and 

that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”), 

and only then, after entry of default, may the moving party make entry for default 

judgment, see Travelers Cas. & Surety Co. of America, Inc., supra (“’First, the party seeking a 

default judgment must file [an application] for entry of default with the clerk of a district 

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court by demonstrating that the opposing party has failed to answer or otherwise 

respond to the complaint, and, second, once the clerk has entered a default, the moving 

party may then seek entry of a default judgment against the defaulting party.’”). “The 

point is that a clerk’s entry of default must precede an application to the district judge for 

entry of default judgment.” Travelers Cas. & Surety Co. of America, Inc., supra (citations 

omitted). 

 Because Johnson long ago satisfied the first step for obtaining a default judgment 

as to defendant Bell (see Docs. 49-50), there is no requirement that he again apply to the 

Clerk for entry of default (Doc. 101); instead, this motion (Doc. 101) is MOOT, and the 

undersigned, in proceeding to the second step set forth in Rule 55, simply recommends 

that plaintiff’s motion for default judgment as to defendant Bell (Doc. 99; see also Doc. 

100) be GRANTED. In accordance with the plaintiff’s request, the amount of damages 

Bell owes Johnson will be determined following an evidentiary hearing to be conducted 

in February of 2013 (see Doc. 99, at ¶ 5) and incorporated in a final report and 

recommendation. 

 The Clerk of Court is directed to send a copy of this report and recommendation 

to defendant Bell at the address from which the Waiver of Service of Summons was 

received, to-wit: 273 Confederate Circle, Monroeville, Alabama 36460. (See Doc. 47.) 

 The instructions which follow the undersigned’s signature contain information 

 

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regarding objections to the report and recommendation of the Magistrate Judge. 

DONE this the 19th day of June, 2012. 

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of this document, file specific written 

objections with the Clerk of this court. Failure to do so will bar a de novo determination by the 

district judge of anything in the recommendation and will bar an attack, on appeal, of the factual 

findings of the Magistrate Judge. See 28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 

(11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The 

procedure for challenging the findings and recommendations of the Magistrate Judge is set out 

in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that: 

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing 

a >Statement of Objection to Magistrate Judge=s Recommendation= within ten 

days2 after being served with a copy of the recommendation, unless a different 

time is established by order. The statement of objection shall specify those 

portions of the recommendation to which objection is made and the basis for the 

objection. The objecting party shall submit to the district judge, at the time of 

filing the objection, a brief setting forth the party=s arguments that the magistrate 

judge=s recommendation should be reviewed de novo and a different disposition 

made. It is insufficient to submit only a copy of the original brief submitted to 

the magistrate judge, although a copy of the original brief may be submitted or 

referred to and incorporated into the brief in support of the objection. Failure to 

submit a brief in support of the objection may be deemed an abandonment of the 

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of 

Appeals; only the district judge's order or judgment can be appealed. 

 2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 

U.S.C. ' 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original 

records in this case are adequate for purposes of review. Any party planning to object to this 

recommendation, but unable to pay the fee for a transcript, is advised that a judicial 

determination that transcription is necessary is required before the United States will pay the 

cost of the transcript. 

 

2 Effective December 1, 2009, the time for filing written objections was extended to 

“14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 

72(b)(2). 

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