Perez v. Huneycutt

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 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.

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).

IT IS SO ORDERED.

Signed: July 14, 2023 She Lil, aS Martifi Reidinger ay, Chief United States District Judge lls