Vallejo v. Allison et al

Filing 26

ORDER DENYING 25 Plaintiff's Motion for Entry of Default or Other Sanction, With Prejudice, signed by Magistrate Judge Sheila K. Oberto on 7/16/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FLORENCIO VALLEJO,
Plaintiff,

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v.
KATHLEEN ALLISON, et al.,

ORDER DENYING MOTION FOR ENTRY
OF DEFAULT OR OTHER SANCTION,
WITH PREJUDICE
(Doc. 25)

Defendants.

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Case No. 1:10-cv-02352-AWI-SKO PC

_____________________________________/

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Plaintiff Florencio Vallejo, a state prisoner proceeding pro se and in forma pauperis, filed

18 this civil rights action pursuant to 42 U.S.C. § 1983 on December 17, 2010. This action is
19 proceeding on Plaintiff’s amended complaint, filed on January 3, 2012, against Defendant Gray
20 for acting with deliberate indifference to Plaintiff’s medical needs, in violation of the Eighth
21 Amendment.
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On July 10, 2013, Plaintiff filed a motion seeking entry of default or other sanction against

23 Defendant for failing to file a reply to his opposition to Defendant’s motion to dismiss. In
24 addition to the fact that Defendant has been granted a second extension of time to file a reply, the
25 filing of a reply is optional and the election not to reply cannot support the entry of default or any
26 other sanction. Fed. R. Civ. P. 55; Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct.
27 2455 (1980) (to be sanctionable under the Court’s inherent power, the conduct must have
28 constituted, or been tantamount to, bad faith); Local Rule 230(l).

Accordingly, Plaintiff’s motion for the entry of default or other sanction against Defendant

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IT IS SO ORDERED.
Dated:

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July 16, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

i0d3h8j27

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