Perez v. Huneycutt

Opinion

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. 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