Perez v. Huneycutt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:22-cv-00120-MR
OSCAR PEREZ, )
)
Plaintiff, )
)
vs. )
)
RONNIE HUNEYCUTT, et al., ) ORDER
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s pro se Motion for
Default Judgment [Doc. 18] and on his Motion to Withdraw1 [Doc. 20].
The pro se incarcerated Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983 and state law. [Doc. 1]. On January 23, 2023, the
Complaint passed initial review against Defendant Ronnie Huneycutt2 on
several § 1983 claims, and the Court exercised supplemental jurisdiction
over the Plaintiff’s related state law claims. [Doc. 11]. Defendant Huneycutt
waived service of process on March 23, 2023, making his answer due on
1 Titled “Plaintiff’s Reply to Defendant’s Opposition to the Plaintiff’s Motion for Default
Judgment, and Motion to Withdraw his Request for Default Judgment.”
2 “Warden Huneycutt” in the Complaint. [Doc. 1 at 1]. The service waiver reflects the
Defendant’s correct name. [Doc. 16]. The Clerk will be instructed to update the Court’s
record accordingly.
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May 22, 2023. [Doc. 16]. Defendant Huneycutt filed his Answer eight days
late on May 30, 2023. [Doc. 17]. Also on May 30, 2023,3 the Plaintiff filed
the instant “Motion Requesting Default Judgment.” [Doc. 18]. Defendant
Huneycutt filed a Response in Opposition, arguing that the Motion violates
the Court’s Local Rules, that he has filed an Answer, and that there is a
strong preference for disposing of cases on the merits. [Doc. 19]. The
Plaintiff then filed a Motion to Withdraw, agreeing with the Defendant and
asking to withdraw his request for default judgment. [Doc. 20].
The Plaintiff’s Motion to Withdraw is granted, and the Motion for Default
Judgment will be stricken.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Withdraw
[Doc. 20] is GRANTED and the Motion for Default Judgment [Doc. 18] is
STRICKEN.
IT IS FURTHER ORDERED that the Clerk of Court is instructed
to correct the Defendant’s name in the Court’s record by substituting
Ronnie Huneycutt for “FNU Huneycutt.”
3 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);
Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying prisoner
mailbox rule to § 1983 case).
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IT IS SO ORDERED.
Signed: July 14, 2023
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