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Bey v. Gibson

February 2, 2006

NICKY L. SMITH BEY, PLAINTIFF,
v.
CPT. SCOTT GIBSON, SGT. PAYNE, SGT. JOSEPH BARNHILL, LISA FITZGERALD, JESSICA MEKELBURG, AND MICHAEL YONGER, DEFENDANTS.



The opinion of the court was delivered by: Honorable Marcia S. Krieger

ORDER DENYING MOTION FOR DEFAULT JUDGMENT AND ADOPTING RECOMMENDATION

THIS MATTER comes before the Court pursuant to the Plaintiff pro se's Motion for Default Judgment (# 22), and the Defendants' response (# 25); and the August 1, 2005 Report and Recommendation (# 32) of United States Magistrate Judge Patricia A. Coan that the Plaintiff's Motion for Sanctions (# 29) be denied, to which no Objections have been filed.

The Court has construed the Plaintiff's pro se pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

The Plaintiff's Motion for Default Judgment appears to request a default judgment based on the Defendants' failure to file a motion for summary judgment or other dispositive motion. It does not allege that the Defendants have failed to plead or otherwise defend, as is required for entry of a default judgment under Fed. R. Civ. P. 55(a). The record reflects that the Defendants have answered and vigorously defended this case at all times. Accordingly, the Plaintiff's Motion for Default is denied.

The Plaintiff's Motion for Sanctions appears to request relief based on an alleged failure of the Defendants to comply with certain discovery obligations. This Court referred (# 30) the motion to Magistrate Judge Coan, and on August 1, 2005, Magistrate Judge Coan recommended (# 32) that the motion be denied for failure to state with particularity the grounds for relief under Fed. R. Civ. P. 7 and D.C. Colo. L Civ. R. 7.1(C). The Plaintiff filed no Objections to this Recommendation, and thus, the Court reviews it under whatever standard of review it deems appropriate. Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.1991). Nevertheless, the Court reviews the Recommendation under the otherwise applicable "clearly erroneous or contrary to law" standard of Fed. R. Civ. P. 72(a). Upon review, the Court determines that Magistrate Judge Coan's Recommendation is not clearly erroneous or contrary to law, as the Plaintiff-- despite liberal construction of the motion-- failed to provide sufficient explanation of the facts upon which relief was sought. Accordingly, the Court adopts the Recommendation and denies the Plaintiff's Motion for Sanctions.

Accordingly, the Plaintiff's Motion for Default Judgment (# 22) is DENIED. The Court ADOPTS the Recommendation (# 32) of Magistrate Judge Coan and the Plaintiff's Motion for Sanctions (# 29) is DENIED.

Marcia S. Krieger United States District Judge

20060202

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