     Case: 19-60113      Document: 00515099031         Page: 1    Date Filed: 08/30/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 19-60113                           August 30, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
RUBEN ORLANDO BENITEZ,

              Plaintiff - Appellant

v.

JEFFREY ATKINS,

              Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:17-CV-233


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       The district court dismissed Ruben Benitez’s action against Jeffrey
Atkins. Benitez appeals, arguing that the district court should have granted
his motion to remand to state court or granted his motions for summary
judgment. For the reasons explained below, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-60113
                                       I.
      Ruben Benitez, proceeding pro se, is an inmate serving a life sentence
for murder in the state of Mississippi. After unsuccessfully appealing through
the Mississippi state court system, Benitez sought review of his sentence and
conviction in the United States Supreme Court by filing a petition for a writ of
certiorari. Concurrent with his petition, Benitez filed a motion for leave to
proceed in forma pauperis. The Court denied Benitez’s motion. Around two
weeks later, Benitez filed an “Application to Individual Justice Supreme Court
of the United States for Fifth District,” which was docketed as a motion for
reconsideration of the Court’s denial of Benitez’s motion to proceed in forma
pauperis. The Court denied that motion as well and thereafter closed the case.
      Feeling aggrieved, Benitez filed suit in Mississippi state court against
Jeffrey Atkins, an employee of the Office of the Clerk of the Supreme Court of
the United States. Benitez alleged that Atkins denied him due process and
engaged in “conspiracy” and “intimidation” in the course of handling Benitez’s
motion for leave to proceed in forma pauperis. Atkins removed the case to
federal court under 28 U.S.C. §§ 1442(a)(3) and 1446, which allow for the
removal of certain cases brought against federal officers. Following removal,
Atkins timely requested a 30-day extension of time to file an answer, which the
district court granted. Around the same time, Benitez filed a “Motion to
Rescind Removal Notice,” which the district court treated as a motion to
remand and denied. Benitez also filed a motion for summary judgment. Atkins
then filed another timely motion for an extension, this time for seven days,
which the district court again granted. Seven days later, Atkins filed his
answer. Benitez then filed a document entitled “Redintragation [sic] of
Summary Judgment.” Benitez’s motion for summary judgment and
subsequent filing both stated in essence that Atkins failed to respond to the
summons and complaint and that judgment should therefore be awarded in
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                                       No. 19-60113
Benitez’s favor. The motion was referred to a magistrate judge, who
recommended it be denied. The district court adopted the magistrate judge’s
recommendation.
       Benitez filed another motion for summary judgment following the
magistrate judge’s recommendation, this time simply reciting the summary-
judgment standard, saying it had been met, and recounting the operative facts
underlying his original summary-judgment argument. The magistrate judge
recommended the second motion for summary judgment be denied, and the
district court adopted this recommendation.
       At some point in this flurry of filing, Atkins also filed a motion to dismiss,
arguing, among other things, that he was entitled to qualified immunity on
Benitez’s claims. The district court adopted the magistrate judge’s
recommendation that the motion be granted, entered final judgment, and
dismissed the case with prejudice. Benitez now appeals, challenging the
denials of his motions for summary judgment as well as the denial of his motion
to remand. 1
                                             II.
       A district court’s denial of a motion for summary judgment and motion
to remand both present questions of law, which we review de novo. Davidson
v. Ga.-Pac., L.L.C., 819 F.3d 758, 762, 765 (5th Cir. 2016). We review a district
court’s denial of a motion for default judgment for abuse of discretion. Lewis v.
Lynn, 236 F.3d 766, 767 (5th Cir. 2001).
       First, the district court did not err in denying Benitez’s motions for
summary judgment. In seeking summary judgment based on a lack of response


       1 Benitez’s brief does not discuss the district court’s grant of Atkins’s motion to
dismiss. We therefore treat any challenge to that order as waived. See Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe the briefs of pro se appellants,
we also require that arguments must be briefed to be preserved.” (quoting Price v. Digital
Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988))).
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                                   No. 19-60113
from Atkins to his summons and complaint, Benitez in essence sought a default
judgment. We have held that “[d]efault judgments are a drastic remedy, not
favored by the Federal Rules and resorted to by courts only in extreme
situations.” Lewis, 236 F.3d at 767 (alteration in original) (quoting Sun Bank
of Ocala v. Pelican Homestead & Sav. Ass’n., 874 F.2d 274, 276 (5th Cir. 1989)).
Accordingly, even where the opposing party is technically in default, a party is
not entitled to default judgment if the district court, within its discretion,
determines that entry of default judgment is not warranted. See id. Here, no
basis whatsoever existed for the entry of default, much less entry of a default-
judgment order: Atkins had successfully sought an extension of time to answer
Benitez’s complaint. Cf. Fed. R. Civ. P. 6(b) (authorizing court to extend time
“[w]hen an act may or must be done within a specified time”). Benitez filed his
first “motion for summary judgment” before Atkins’s time to answer had
expired. And Benitez filed his second motion after Atkins filed his answer.
Thus, Atkins was not in default because he had not “failed to plead or otherwise
defend” against the complaint. Fed. R. Civ. P. 55(a). The district court therefore
did not err in denying Benitez’s motion.
      Second, the district court did not err in denying Benitez’s motion for
remand. Federal statute allows for the removal of cases brought against “[a]ny
officer of the courts of the United States, for or relating to any act under color
of office or in the performance of his duties.” 28 U.S.C. § 1442(a)(3). Under this
statute, the officer must “establish that the suit is ‘for a[n] act under color of
office,’ . . . . To satisfy [this] requirement, the officer must show a nexus, a
‘“causal connection” between the charged conduct and asserted official
authority.’” Jefferson County v. Acker, 527 U.S. 423, 431 (1999) (alteration in
original) (emphasis omitted) (citations omitted). The officer must also show
that he seeks to raise a colorable federal defense, such as immunity. See id. It
is beyond dispute that Atkins is an officer of a federal court. It is also clear that
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                                 No. 19-60113
there is a causal connection between his alleged conduct and his authority:
each of Benitez’s allegations relates to Atkins’s actions as an employee of the
Clerk’s office. Finally, Atkins raises a colorable defense of qualified immunity,
which this court has previously afforded to a clerk of a federal court in a
damages suit such as this. See Williams v. Wood, 612 F.2d 982, 984-85 (5th
Cir. 1980). Thus, the requirements of the federal-officer removal statute have
been met, and removal in this case was proper.
      The judgment of the district court is AFFIRMED.




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