United States District Court, D. Minnesota
Ul Mahbub, pro se;
J. Walker, Freeborn County Attorney's Office, for
Defendant Kurt Freitag.
REPORT AND RECOMMENDATION
E. RAU, UNITED STATES MAGISTRATE JUDGE
full procedural and factual background of this matter is set
forth in this Court's previous Report and Recommendation.
Mahbub v. Freitag, 2019 WL 502133, at *1 (D. Minn.
Jan. 8, 2019), report and recommendation adopted by
2019 WL 501696, at *1 (D. Minn. Feb. 8, 2019).
Maksud Mahbub was convicted in Minnesota state court of one
third-degree and three fourth-degree criminal-sexual-conduct
offenses and sentenced to 120-months imprisonment. State
of Minnesota v. Mahbub, 2013 WL 4779009, at *3
(Minn.Ct.App. Sept. 9, 2013). Following his conviction,
Mahbub sought various forms of relief, including three state
postconviction petitions and two federal habeas petitions
(excluding the instant action). Mahbub, 2013 WL
4779009; Mahbub v. Warden, Moose Lake Prison, 2015
WL 9665674, at *1 (D. Minn. July 20, 2015), report and
recommendation adopted by 2016 WL 75053 (D. Minn. Jan.
6, 2016); Mahbub v. State of Minnesota, 2017 WL
2628209, at *1 (Minn.Ct.App. June 19, 2017); Mahbub v.
Warden, Rush City Prison, 2018 WL 2271026, at *1-*2 (D.
Minn. May 17, 2018), appeal dismissed by Mahbub v.
Warden, Eighth Cir. Case No. 18-2440, Doc. No. 4700718
(Aug. 31, 2018); (Aff. of Robert B. Roche, Ex. 6, ECF No. 26)
brings the instant suit under 42 U.S.C. § 1983 asserting
two claims. First, Mahbub alleges he was denied access to
adequate legal resources and materials at the Freeborn County
Detention Center. (Compl., at 1, ECF No. 1-1). Mahbub asserts
this prevented him from timely preparing an objection to a
report and recommendation, leading to the dismissal of his
federal habeas petition. (Compl., at 1). Second, Mahbub
asserts the Ramsey County Attorney's Office is denying
him access to evidence it possesses. (Compl., at 2-3).
Mahbub's second claim was dismissed, so all that remains
is Mahbub's claim against the Freeborn County
Defendants. Mahbub, 2019 WL 502133, at *5,
report and recommendation adopted by 2019 WL 501696,
asserts he was an immigration detainee held at the Freeborn
County Detention Center. (Mahbub Aff. ¶ 3, ECF No. 6).
He asserts the Freeborn County Detention Center, which also
houses state detainees, has no criminal or civil legal
resources save for a 2012 Minnesota statute book. (Mahbub
Aff. ¶ 4; ECF No. 4, at 3; ECF No. 10-3, at 7-8).
Mahbub's requests for criminal and civil research
material, including case law, have been repeatedly denied.
(Mahbub Aff. ¶ 5; ECF No. 4, at 4). Mahbub asserts he
was told access to case law was provided out of the
“generosity” of the Freeborn County Detention
Center Senior Programmer. (Mahbub Aff. ¶ 15; ECF No. 4,
at 7; ECF No. 10-3, at 11, 28). The Freeborn County Detention
Center's law library's six computers block criminal
and civil legal research, only allowing immigration law
research. (Mahbub Aff. ¶¶ 17-19; ECF No. 4, at
9-12). Mahbub asserts he received retaliatory punishment for
raising concerns with respect to the Freeborn County
Detention Center's law library. (Mahbub Aff. ¶¶
21-22; ECF No. 4, at 15-16). Because of this limited access,
Mahbub asserts he was unable to effectively litigate his
previous federal habeas claim. (Compl., at 1).
it appears Freeborn County Sheriff Kurt Frietag was served on
July 3, 2018, (ECF No. 32, at 1), the Freeborn County
Defendants have not answered Mahbub's complaint or
responded in any way. As a result, this Court took no action
on Mahbub's access to the courts claim in its previous
Report and Recommendation. Mahbub, 2019 WL 502133,
at *5. Rather, on January 8, 2019, it recommended
that the “Freeborn County Defendants be required to
answer or otherwise respond to Mahbub's complaint within
14 days of the Order considering this Report and
Recommendation.” Mahbub, 2019 WL 502133, at
*5. Then, on February 8, 2019, the District Court adopted the
Report and Recommendation, ordering that the “Freeborn
County defendants shall respond to the complaint within
fourteen days of this order.” Mahbub, 2019 WL
501696, at *1. Finally, on March 28, 2019, this Court ordered
the Freeborn County Defendants “to answer or otherwise
respond to the Complaint on or before 4/12/2019.” (ECF
No. 47). To date, no answer or response to the complaint has
been filed by the Freeborn County Defendants.
55 of the Federal Rules of Civil Procedure establishes a
two-step process for obtaining default judgment when, as
occurred here, an opposing party fails to timely respond to a
pleading.” AGCO Fin., LLC v. Littrell, 320
F.R.D. 45, 47 (D. Minn. 2017). Under Rule 55(a),
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, the clerk
must enter the party's default.” Once default is
entered, the “party must apply to the court for a
default judgment.” Fed.R.Civ.P. 55(b)(2). Entry of
default judgment requires notice be provided. Id.
Additionally, “entry of default under Rule 55(a) must
precede grant of a default judgment under Rule 55(b).”
Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783
(8th Cir. 1998). While Rule 55(d) governs default judgment
against the United States, no special rules apply to state
governmental entities or persons. Durant v. Husband,
28 F.3d 12, 15 (3d Cir. 1994).
shown above, the Freeborn County Defendants have failed to
plead or otherwise defend the claim in Mahbub's
complaint. Mahbub appears to have served the Freeborn County
Defendants on July 3, 2018. Despite this Court's Report
and Recommendation on January 8, 2019, then the Court's
orders on February 8 and March 28, 2019 directed answers
within 14 days, the Freeborn County Defendants have failed to
interpose an answer or response to Mahbub's Complaint.
There is nothing in the record excusing the Freeborn County
Defendants' failure to respond to Mahbub's claim.
Thus, this Court recommends default be entered against the
Freeborn County Defendants.
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY RECOMMENDED that the
Clerk of Court enter default against the ...