                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    EZEKIEL DAVIS,

                Plaintiff-Appellant,

    v.                                                    No. 00-7116
                                                    (D.C. No. 99-CV-119-S)
    STEPHEN KAISER; CHARLES                               (E.D. Okla.)
    BREWER; JANET BRYANT;
    MRS. THORNHILL; MRS.
    COWART; C. RAY,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Ezekiel Davis, a prisoner in the custody of the Oklahoma

Department of Corrections, brought this action against defendant prison officials

alleging violation of his civil rights under 42 U.S.C. § 1983 and state law.

In particular, plaintiff contends that defendants violated his constitutional right to

access to the courts by opening and delaying delivery of a piece of legal mail sent

to him by his attorney, and by assigning an attorney to provide assistance to

prisoners who is biased against prisoners. The district court denied plaintiff’s

motion for default judgment against defendants Cowart and Ray and his motion

for summary judgment, and it granted defendants’ motion for summary judgment.

Plaintiff timely filed a notice of appeal.

      Plaintiff’s primary contention on appeal is that the district court erred in

denying his motion for default judgment against defendants Cowart and Ray.

Following service of plaintiff’s complaint on all defendants, counsel entered an

appearance in July and August 1999 on behalf of all defendants except Cowart

and Ray. On behalf of defendants Kaiser and Thornhill, counsel filed a         Martinez 1

report and a motion to dismiss on October 7.       2
                                                       On January 24, 2000, plaintiff

moved for default judgment against Cowart and Ray because they had not yet

answered or otherwise appeared before the court. On February 9, counsel entered

1
      Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978).
2
     The district court later converted the motion to dismiss to one for summary
judgment.

                                             -2-
an appearance on behalf of Cowart and Ray and filed a response to the motion for

default judgment on March 24. On September 29, the district court entered a

minute order denying the motion for default on the basis that Cowart and Ray had

entered their appearances. That same day, the court granted defendants’ motion

for summary judgment.

       We review a court’s decision to grant or deny a motion for default for

abuse of discretion.   Ruplinger v. Rains (In re Rains)   , 946 F.2d 731, 732

(10th Cir. 1991).

             Default judgments are a harsh sanction. Strong policies favor
       resolution of disputes on their merits: The default judgment must
       normally be viewed as available only when the adversary process has
       been halted because of an essentially unresponsive party. In that
       instance, the diligent party must be protected lest he be faced with
       interminable delay and continued uncertainty as to his rights. The
       default judgment remedy serves as such a protection.

              We do not favor default judgments because the court’s power
       is used to enter and enforce judgments regardless of the merits of the
       case, purely as a penalty for delays in filing or other procedural error.

Id. at 732-33 (citations, quotations, and brackets omitted). Counsel’s failure to

enter an appearance on behalf of Cowart and Ray was inadvertent--counsel, who

represented all defendants, had been unaware they had been served--and plaintiff

has not shown that he was prejudiced in any way by the delayed appearance.

We see no abuse of discretion in the court’s denial of plaintiff’s motion for

default. See Panis v. Mission Hills Bank , 60 F.3d 1486, 1494 (10th Cir. 1995).


                                            -3-
       Plaintiff may also be asserting on appeal that the district court erred in

granting summary judgment in defendants’ favor. Plaintiff has failed, however,

to present any reasoned argument in support of this assertion, and we therefore

will not address it.   American Airlines v. Christensen    , 967 F.2d 410, 415 n.8

(10th Cir. 1992).

       The judgment of the United States District Court for the Eastern District

of Oklahoma is AFFIRMED. Plaintiff’s motion for appointment of counsel is

DENIED. We remind plaintiff that the district court granted his motion to

proceed in forma pauperis on appeal, payable in partial payments, and that

obligation continues until the entire fee is paid.



                                                          Entered for the Court



                                                          Michael R. Murphy
                                                          Circuit Judge




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