The opinion of the court was delivered by: Magistrate Judge Blewitt
The Plaintiff, Benjamin Smith, formerly an inmate at the State Correctional Institution at Rockview ("SCI-Rockview"), and currently an inmate at the Federal Correctional Institution at Ray Brook, New York, filed this action, pursuant to 42 U.S.C. § 1983, on December 27, 2005, naming fourteen (14) Defendants, employed by the Pennsylvania Department of Corrections ("DOC"), some of whom worked at SCI-Rockview.*fn1
We reviewed the Plaintiff's pleading pursuant to the Prison Litigation Reform Act of 1995 "(PLRA"),*fn2 and found that it stated an Eighth Amendment deliberate indifference claim and conditions of confinement claim against two (2) Defendants, Shady and Chaplain Ajjeh, but that it named several party defendants which we recommended for dismissal under § 1983 for failure to state a claim. (Doc. 8). Specifically, in reviewing the Complaint under 28 U.S.C. §1915(e)(2)(B), we recommended that the Plaintiff's action failed to state a claim as against twelve (12) Defendants.
On February 6, 2006, the Plaintiff filed an objection to the January 2006 Report and Recommendation. (Doc. 12). The District Court adopted the Report and Recommendation in part, and reversed it in part, reinstating Francis Dougherty, Early Walker and Francis Tennis as Defendants. (Doc. 13). Thus, in total, five (5) Defendants remained.
On May 1, 2006, Defendants Francis Dougherty, Earl Walker, and Franklin Tennis filed a Motion to Dismiss the Plaintiff's retaliation claims against them. (Doc. 29). On August 16, 2006, we issued a Report and Recommendation and recommended that the Defendants' Motion be granted (Doc. 29), and that the Plaintiff's First Amendment retaliation claims be dismissed against Defendants Dougherty, Walker, and Tennis. (Doc. 58).
On December 27, 2006, the District Court entered an Order rejecting our Report and Recommendation and denying Defendants' stated Motion to Dismiss. (Doc. 71). The Court also denied Plaintiff's Motion for Judgment (Doc. 67), but it directed the Clerk to enter default as against Defendant Shady due to her failure to respond to Plaintiff's Complaint. (Doc. 71, p. 21). On December 27, 2006, the Clerk entered Default against Defendant Shady and in favor of Plaintiff. (Doc. 72). On December 27, 2006, Defendant Shady, through counsel, filled a Motion to set Aside Default Judgment. (Doc. 73).*fn3 Defendant Shady filed his support Brief on January 16, 2007. (Doc. 76). On February 22, 2007, after being granted an extension of time, Plaintiff filed a Motion in Opposition to Setting Aside Entry of Default and a Brief in Opposition of Setting Aside Entry of Default. (Docs. 89 & 90). We now consider Defendant Shady's Motion to Set Aside Default.*fn4
Since the District Court, in its December 27, 2006 Order, noted the standard for setting aside the entry of default, we shall quote it as follows:
[W]e note that under FED.R.CIV.P. 55(c), "[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)."
Further, were a motion filed to set aside the default entry that we have ordered or any default judgment that may follow, jurisprudence provides guidance on disposition of such motions. With regard to a motion to set aside a default judgment, the Third Circuit has noted that "a standard of 'liberality,' rather than 'strictness' should be applied in acting on a motion to set aside a default judgment, and that 'any doubt should be resolved in favor of the petition to set aside the judgment so that cases may be decided on their merits.'" Medunic v. Lederer, 533 F.2d 891, 894 (3d Cir. 1976) (quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245-46 (3d Cir. 1951)). Further, as a colleague from our own Court has noted, "[w]here default has been entered, but default judgment not yet granted, an even more liberal standard is applied to a motion to set aside the entry of default." Schartner v. Copeland, 59 F.R.D. 653, 656 (M.D. Pa. 1973). (Doc. 71, p. 19, n. 6).
Initially, we note that the District Court directed the Clerk to enter default against Defendant Shady (Id., pp. 19, 21), and the Clerk entered Default in favor of Plaintiff and against Defendant Shady. (Doc. 72). We find no record that default judgment was entered against Defendant Shady, and thus we apply the more liberal standard which is appropriate for a motion to set aside the entry of default.
In the Motion of Defendant Shady, counsel from the Pennsylvania Attorney General's Office, who is representing Defendants Tennis, Dougherty, and Walker in this case, states that on March 14, 2006, he executed a Waiver of Service of Summons form with respect to Plaintiff's Complaint on behalf of Defendant Dougherty, Walker and Shady, but that the inclusion of Shady on the form was "inadvertent and counsel did not intend to include her in the waiver." (Doc. 73, p. 2, ¶'s 4.-6.). Counsel executed a separate waiver form with respect to Defendant Tennis.*fn5 Counsel states that, at the time he signed the waiver, he had not spoken with Shady and was not sure if she wanted him to represent her in this case. Counsel states that Plaintiff's complaint was served at SCIRockview after Shady left her employment at the prison, and that she did not receive a copy of the complaint and "is most likely unaware of the current action against her." (Id., ¶ 8.). Counsel states that he did not respond to Plaintiff's Motion to Enter Default against Shady since he was not aware that he had ...