Buckley v. Scribner, et al

Filing 67

ORDER DENYING 55 Plaintiff's Motion for Default Judgment signed by Magistrate Judge Michael J. Seng on 9/13/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTONIO CORTEZ BUCKLEY,
Plaintiff,

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CASE NO. 1:04-cv-5622-MJS (PC)
ORDER DENYING MOTION FOR
DEFAULT JUDGMENT

v.
(ECF No. 55)

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A.K. SCRIBNER, et al.,
Defendants.
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Plaintiff Antonio Cortez Buckley is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On August 6, 2010, the Court screened Plaintiff’s First Amended Complaint and

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found that Plaintiff stated a cognizable free exercise claim but did not state any other

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claims upon which relief could be granted. (ECF No. 29.) The Court gave Plaintiff leave

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to file a second amended complaint to cure the deficiencies identified by the Court. (Id.)

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Plaintiff filed a Second Amended Complaint on February 16, 2011 (ECF No. 40).

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The Court screened it on February 22, 2011 (ECF No. 41), found it to be duplicative of his

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First Amended Complaint and struck it. Inasmuch as the Second Amended Complaint

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simply repeated the cognizable free exercise claim and the other already-rejected claims,

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the Court determined that Plaintiff would be permitted to proceed on the cognizable claim

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against Defendants Dotson, Parangan, Jarralimillio, Peck, Lerman, and Ocegura as

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asserted in his First Amended Complaint. (Id.)

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On April 27, 2011, the Court issued an Order for Plaintiff to complete the required

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service documents (ECF No. 48) and ordered the United States Marshall to initiate service

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on May 16, 2011 and to complete service by September 16, 2011 (ECF No. 51).

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Defendants Jarralimillio, Lerman, Parangan, and Peck have been served and have filed

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an Answer to Plaintiff’s Complaint (ECF No. 53.)
On August 1, 2011, Plaintiff filed a Motion for Default Judgment against Defendants

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Dotson and Ocegura. (ECF No. 55.) His Motion is unfounded.

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A default, followed by a default judgment, cannot be taken unless and until a

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Defendant has been served and fails to file a responsive pleading within the time allowed.

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There is no evidence that Defendants Dotson and Ocegura have yet been served, and

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thus no reason to believe that their time for filing a responsive pleading has expired.
Accordingly, Plaintiff having presented no basis upon which a default could be taken

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against these defendants, his Motion for a Default Judgment is DENIED.

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IT IS SO ORDERED.

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Dated:
ci4d6

September 13, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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