Daniels v. Henderson , 976 F. Supp. 1372 ( 1997 )

OPINION AND ORDER

FRYE, District Judge.

This matter is before the court on the plaintiffs motion for summary judgment (# 10).

BACKGROUND

The plaintiff, Richard E. Daniels, Jr., an inmate at the Federal Correctional Institution at Sheridan (FCI Sheridan) filed the complaint in this matter on May 16, 1997 alleging civil rights violations against various employees at FCI Sheridan. A notice of lawsuit and waiver of service forms were sent out on June 20, 1997. Defendants Herron and Henderson waived service and returned the forms July 8,1997. The third defendant, Cline, waived service and returned the form August 29, 1997. The defendants have not filed an answer or any other pleadings in this matter. On September 25, 1997, the plaintiff filed a motion for summary judgment.

DISCUSSION

The plaintiff seeks summary judgment on the basis that the defendants failed to plead or otherwise defend this action. Pursuant to Fed.R.Civ.P. 12(a)(1)(B), the defendants had sixty days from the date that the request for waiver of service was sent out to file an answer. As noted above, the defendants have not filed an answer or any other pleadings.

Rule 55(e) of the Federal Rules of Civil Procedure provides that “[n]o judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.”

Although the defendants have failed to file an answer or any other pleadings, and the sixty-day period lapsed on August 20, 1997, the plaintiff has not presented evidence satisfactory to establish his claim against the United States.

CONCLUSION

The plaintiffs motion for summary judgment against the defendants (# 10) is DENIED.

IT IS SO ORDERED.