Bradley v. Villa et al

Filing 32

ORDER DENYING Plaintiff's Request for Entry of Default 30 , signed by Magistrate Judge Gary S. Austin on 11/1/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:10-cv-01618-LJO-GSA-PC

WILLIAM BRADLEY,

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ORDER DENYING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT
(Doc. 30.)

Plaintiff,

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vs.

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J. VILLA, et al.,

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Defendants.

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I.

BACKGROUND
William Bradley (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. §1983.

Plaintiff filed the Complaint

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commencing this action on September 8, 2010.

This case now proceeds on

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Plaintiff’s Third Amended Complaint filed on September 14, 2012, against defendant Villa for

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use of excessive force, and defendants Hightower, Henderson, and Wood for failure to protect

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Plaintiff, in violation of the Eighth Amendment.1 (Doc. 19.)

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(Doc. 1.)

On October 25, 2013, Plaintiff filed a request for entry of default against defendants
Villa, Hightower, Henderson, and Wood (“Defendants”). (Doc. 118.)

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Plaintiff states in the Third Amended Complaint that he “wish[es] to proceed only against defendant
L.Villa (Officer) for excessive force, and against defendants Hightower (Sgt.), Wood (Capt.) and Henderson (Lt.)
for failure to protect Plaintiff.” 3rd Amd Cmp at 1:25-2:1.
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II.

ENTRY OF DEFAULT

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

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

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Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.

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55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must serve an

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answer within 21 days after being served with the summons and complaint; or if it has timely

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waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@ Fed.

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R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by

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signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or

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otherwise defend an action after being properly served with a summons and complaint, default

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may be entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.

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III.

DISCUSSION

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Plaintiff argues that Defendants failed to file a timely response to the Third Amended

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Complaint, in violation of Rules 55 and 12(a) of the Federal Rules of Civil Procedure. Plaintiff

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acknowledges that on August 30, 2013, the court granted Defendants an extension of time until

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October 11, 2013, in which to file a response. However, Plaintiff argues that Defendants failed

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to file a response by October 11, 2013. The record in this action shows otherwise. On October

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11, 2013, Defendants filed a motion to dismiss the complaint. (Doc. 29.) Based on this record,

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there is no evidence that Defendants failed to plead or otherwise defend against the Third

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Amended Complaint, and Plaintiff is not entitled to entry of default against Defendants on this

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ground.

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Plaintiff is advised that the fact that Defendants have not filed an Answer in this action

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does not entitle Plaintiff to entry of default. Under Rule 55, default may be entered if a

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defendant Afails to plead or otherwise defend.@ Fed. R. Civ. P. 55 (emphasis added). The filing

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of a motion to dismiss is evidence that Defendants have defended in this action, precluding

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entry of default under Rule 55. Therefore, Plaintiff’s request shall be denied.

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///

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///
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IV.

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for entry of

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CONCLUSION

default against Defendants, filed on October 25, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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November 1, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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