Barber v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Barber
v. 	Civil No. 14-cv-98-JL
Richard Gerry, Warden,
New Hampshire State Prison,
and Brian Hill
REPORT AND RECOMMENDATION
Before the Court is Plaintiff John Barber’s “Motion Asking
the Court to Rule in Plaintiff’s Favor” (doc. no. 23), seeking
the entry of default judgment against Defendant Brian Hill (doc.
no. 23). 	No objection has been filed.
On April 21, 2014, this Court issued an order (doc. no. 9)
directing service of the complaint on New Hampshire State Prison
(“NHSP”) Warden Richard Gerry, and former NHSP Corrections
Officer Brian Hill. 	The New Hampshire Attorney General’s office
(“AG”) accepted service on behalf of Gerry on May 20, 2014. 	On
June 3, 2014, the AG filed a notice (doc. no. 15) declining to
represent Hill. 	Hill was served by the United States Marshal
for the District of New Hampshire on June 11, 2014. 	See Doc.
No. 12 (executed Return of Service for Hill).
Case 1:14-cv-00098-JL Document 31 Filed 08/26/14 Page 1 of 3

2
On July 1, 2014, the same day Barber filed the instant
Motion, Hill filed a Motion (doc. no. 22) for an extension of
time in which to file his answer. 	The Court granted Hill until
September 2, 2014, to either file an answer or request further
extension.
The deadline set by the Court for Hill to answer or
otherwise plead has not yet occurred. 	There is, accordingly, no
basis upon which to grant Barber relief in the action against
Hill at this time, and Barber’s motion (doc. no. 23) should be
denied as premature.
CONCLUSION
For the foregoing reasons, Barber’s “Motion Asking Court to
Rule in Plaintiff’s Favor” (doc. no. 23) should be denied. 	Any
objections to this report and recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011), cert. denied, 132 S. Ct. 1045 (2012); Sch.
Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st
Cir. 2010) (only issues fairly raised by objections to
Case 1:14-cv-00098-JL Document 31 Filed 08/26/14 Page 2 of 3

3
magistrate judge’s report are subject to review by district
court; issues not preserved by such objection are precluded on
appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 26, 2014
cc: 	John Barber, pro se
Francis Charles Fredericks, Esq.
Brian Hill, pro se
Case 1:14-cv-00098-JL Document 31 Filed 08/26/14 Page 3 of 3