Shorter v. Rosenthal et al

Filing 32

ORDER DENYING 29 Plaintiff's Motion signed by Magistrate Judge Dennis L. Beck on 6/8/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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8 ANTHONY SHORTER,

CASE NO. 1:10-cv-00610-LJO-DLB PC

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ORDER DENYING PLAINTIFF’S MOTION

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Plaintiff,
v.

(DOC. 29)

11 R. ROSENTHAL, et al.,
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Defendants.
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Plaintiff Anthony Shorter (“Plaintiff”) is a California state prisoner proceeding pro se and

16 in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is
17 proceeding on Plaintiff’s third amended complaint against Defendants R. Rosenthal, G. Doan,
18 and S. Wortman for denial of access to the courts. Pending before the Court is Plaintiff’s
19 motion, filed December 12, 2011, entitled “Notice of Motion, and Motion Requesting Summary
20 Judgment in favor For Plaintiff.” Doc. 29. This motion is based on Defendants’ alleged failure
21 to timely file a responsive pleading. Accordingly, the Court will treat the motion as a motion for
22 entry of default pursuant to Rule 55. On December 28, 2011, Defendants filed their opposition.
23 The matter is submitted pursuant to Local Rule 230(l).
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“When a party against whom a judgment for affirmative relief is sought has failed to

25 plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
26 enter the party’s default.” Fed. R. Civ. P. 55(a). Plaintiff contends that Defendants failed to
27 answer by the required deadline of December 7, 2011. Pl.’s Mot. 2. Plaintiff contends that he
28 did not receive any communication from Defendants as of December 7, 2011, 8 p.m. Id. Thus,
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1 Plaintiff requests that Defendants’ failure to defend be treated as acquiescence to Plaintiff’s
2 alleged claims. Id.
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Defendants contend that they did serve and file a responsive pleading by December 7,

4 2011. Defs.’ Opp’n, Doc. 28. A review of the Court’s docket indicates that on December 7,
5 2011, an answer from Defendants was filed. A proof of service was attached to the answer and
6 dated December 7, 2011. Service by mail is effective upon mailing. Fed. R. Civ. P. 5(b)(2)(C).
7 There is no evidence which demonstrates that Defendants did not comply with the December 7,
8 2011 deadline for service and filing of a responsive pleading.
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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion, filed December 12, 2011

10 and construed as a motion for entry of default, is denied.
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IT IS SO ORDERED.

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Dated:
3b142a

June 8, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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