McElroy v. Department of Corrections, et al

Filing 26

FINDINGS and RECOMMENDATIONS recommending that 18 Plaintiff's Motion for Default Judgment be DENIED re 1 Complaint, signed by Magistrate Judge Gary S. Austin on 9/24/2009. Referred to Judge Wanger. Objections to F&R due by 10/20/2009. (Jessen, A)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 Defendants. 14 15 Plaintiff Latwahn McElroy ("Plaintiff") is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's 17 "Motion For Default By Defendants" filed April 9, 2009. Plaintiff requests that the Court enter 18 default judgment against Defendant B. Cope pursuant to Federal Rule of Civil Procedure 55. Federal 19 Rule of Civil Procedure 55(a) provides "[w]hen a party against whom a judgment for affirmative 20 relief is sought has failed to plead or otherwise defend, and that failure is shown by affidvait or 21 otherwise, the clerk must enter the party's default." 22 Plaintiff has failed to demonstrate that he is entitled to default judgment. Plaintiff claims that 23 "[o]n or about April 7, 2009 this court entered its order ordering defendants to respond to [the] 24 complaint in said order defendants were alloted[sic] twenty (20) calendar days to respond to 25 Plaintiff's complaint." (Pl.'s Mot. for Default by Defendants 1.) The Court is unable to discern what 26 order Plaintiff is referring to. On March 17, 2009 the Court ordered the U.S. Marshall to serve 27 Defendant Cope with a copy of Plaintiff's complaint. (Doc. # 14.) A service deadline was set for 28 1 / v. (Doc. 18) DEPARTMENT OF CORRECTIONS, et al., RESPONSE DUE WITHIN 20 DAYS LATWAHN MCELROY, Plaintiff, CASE NO. 1:07-cv-01677-OWW-YNP PC F INDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION

UNITED STATES DISTRICT COURT

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July 20, 2009. A waiver of service was returned executed and entered on the Court's docket on June 23, 2009. (Doc. #20.) Defendant Cope filed an answer to Plaintiff's complaint on July 6, 2009. (Doc. #21.) The Court finds that Defendant Cope thus far has adequately and promptly responded to Plaintiff's complaint and Plaintiff is not entitled to default judgment. Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion for default judgment, filed April 9, 2009, be DENIED. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: 6i0kij

September 24, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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