Saenz v. Spearman, et al.

Filing 36

ORDER Denying Plaintiff's Motion for Entry of Default 29 , signed by Magistrate Judge Sandra M. Snyder on 5/3/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT GONZALES SAENZ,

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CASE NO. 1:09-cv-00557-SMS PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION FOR
ENTRY OF DEFAULT

v.
(ECF Nos. 29, 31)

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SGT. D. REEVES,
Defendant.
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Plaintiff Robert Gonzales Saenz (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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the second amended complaint, filed January 14, 2010, against Defendant Reeves for violation of

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the First and Eighth Amendments. (ECF No. 14.) On October 22, 2010, the Court issued an order

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directing the United States Marshal to serve the second amended complaint. (ECF No. 19.) Plaintiff

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filed a motion for entry of default on January 24, 2011, and Defendant filed an answer to the

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complaint and an opposition on February 18, 2011. (ECF Nos. 29, 30, 31.)

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Entry of default is appropriate as to any party against whom a judgment for affirmative relief

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is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil

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Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P. 55(a).

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The order issued on October 22, 2010, directed the Marshal to initiate service on Defendant. Until

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Defendant has either waived service and failed to respond within sixty days or been personally

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served and failed to respond within twenty days, he is not in default and Plaintiff is not entitled to

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entry of default. At the time Plaintiff filed his motion there was no indication that service had been
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effected on Defendant.

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Defendant has filed an answer to the complaint and an objection to the entry of default.
Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for entry of default is DENIED.

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IT IS SO ORDERED.

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Dated:
icido3

May 3, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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