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. 179)—wherein Johnson states he is moving for entry of a default judgment against 

defendant Christopher Mummert (id. 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 

Mummert and five other defendants by filing a complaint in this Court on May 6, 2011. 

(Doc. 1.) On November 22, 2011, a Notice of Lawsuit and Request for Waiver of Service 

of Summons was sent to Mummert at the address provided by the Alabama 

Department of Corrections (Doc. 43); however, on December 2, 2011, this mailing was 

returned to the Court as undeliverable (see Doc. 45). On July 20, 2012, plaintiff filed his 

 1 Plaintiff concurrently applied to the Clerk of Court for entry of default against 

Christopher Mummert. (Doc. 180.) Because the filing of concurrent pleadings is not proper, see 

Travelers Cas. & Surety Co. of America, Inc., infra, the undersigned has deferred ruling on 

plaintiff’s motion for default judgment until now. 

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first amended complaint (Doc. 111) and Mummert was served with that pleading, by 

certified mail, on August 9, 2012 (Doc. 129). Mummert’s answer to the first amended 

complaint was due on September 5, 2012. (See id.) That date has long since passed with 

no responsive pleading forthcoming from Mummert. (See Docket Sheet.) Entry of 

default as to Chris Mummert was made by the Clerk of Court on December 12, 2012. 

(Doc. 181.)

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 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, 

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Inc., supra (citations omitted). 

As set forth above, Johnson has satisfied the first step for obtaining a default 

judgment as to defendant Mummert (see Doc. 181), and, therefore, 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 Mummert (Doc. 179) be GRANTED. In 

accordance with the plaintiff’s request, the amount of damages Mummert owes Johnson 

will be determined following an evidentiary hearing 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 Mummert at the address the defendant was served with the first amended 

complaint, to-wit: 102 Bream Street, Lot 4, Atmore, Alabama 36502. (See Doc. 129.)

The instructions which follow the undersigned’s signature contain information

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

DONE this the 18th day of December, 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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