Leach v. Lowe, et al

Filing 139

ORDER Denying Plaintiff's Motion for Entry of Default 136 , signed by Magistrate Judge Gary S. Austin on 3/21/12. (Gonzalez, R)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DONALD R. LEACH,

12

Plaintiff,

13
14

vs.

1:00-cv-06139-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION FOR ENTRY OF DEFAULT
(Doc. 136.)

TOM CAREY, T. DREW,
D. SCHROEDER, and HAWS,

15
16

Defendants.
_____________________________/

17
18

I.

BACKGROUND

19

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Donald R. Leach

20

(“Plaintiff”), a state prisoner proceeding pro se. Plaintiff is presently incarcerated at Kern Valley

21

State Prison in Delano, California. Plaintiff filed the Complaint commencing this action on August

22

2, 2000. (Doc. 1.) On December 17, 2010, Plaintiff and Defendants participated in settlement

23

proceedings before Magistrate Judge Jennifer L. Thurston, and the case was settled. (Doc. 125.) On

24

January 3, 2011, the case was dismissed, with prejudice, pursuant to the parties' stipulation. (Doc.

25

127.)

26
27
28

On November 14, 2011, Plaintiff filed a motion to compel Defendants to abide by the parties'
settlement agreement. (Doc. 132.) On February 21, 2012, Plaintiff filed a motion for entry of
1

1

default against Defendants. (Doc. 136.) The Court here addresses Plaintiff's motion for entry of

2

default.1

3

II.

4

PLAINTIFF'S MOTION FOR DEFAULT
Plaintiff argues that he is entitled to entry of default against Defendants because they failed to

5

file a timely response to Plaintiff's motion to compel. However, according to the court's record,

6

Defendants' response to the motion to compel was filed in a timely manner. On February 9, 2012,

7

the court entered an order which excused Defendants from filing their response to the motion to

8

compel until February 29, 2012. (Doc. 135.) Defendants filed their response on February 28, 2012,

9

one day before the deadline. (Doc. 137.) Thus, Defendants' response was timely and therefore,

10

Plaintiff's motion for entry of default shall be denied.

11

III.

12
13

CONCLUSION
Accordingly, in light of the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

entry of default, filed on February 21, 2012 is DENIED.

14
15

IT IS SO ORDERED.

16

Dated:
6i0kij

March 21, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28

1

Plaintiff's motion to compel is addressed in a separate order.

2