Shepard v. Cohen et al

Filing 23

ORDER Denying Plaintiff's Request For Entry Of Default (Doc. 19 ), signed by Magistrate Judge Gary S. Austin on 1/29/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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1:11-cv-00535-GSA-PC

Plaintiff,

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vs.

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ORDER DENYING PLAINTIFF=S
REQUEST FOR ENTRY OF DEFAULT
(Doc. 19.)

COHEN, et al.,

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Defendants.

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I.

BACKGROUND

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Lamont Shepard (APlaintiff@) is a state prisoner proceeding pro se in this civil rights

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action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action

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on March 30, 2011. (Doc. 1.) This action now proceeds on the First Amended Complaint filed

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by Plaintiff on March 25, 2013, against defendants Dr. Cohen, Sgt. J. Lopez, Correctional

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Officer (C/O) Z. Dean, C/O J. Campbell, and Jane Doe (LVN) on Plaintiff's due process claim

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and against defendants Dr. Cohen, Sgt. J. Lopez, C/O Z. Dean, and C/O J. Campbell on

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Plaintiff's excessive force claim.1 (Doc. 8.)

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On October 31, 2013, the court dismissed all remaining claims and defendants from this action, based on
Plaintiff=s failure to state a claim. (Doc. 11.)
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On January 27, 2013, Plaintiff filed a request for entry of default against the defendants.

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(Doc. 19.)

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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, a

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default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil

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Procedure.

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Once default has been entered against a defendant, the court may, A[f]or good cause

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shown . . . set aside an entry of default. . . .@ Fed. R. Civ. P. 55(c). AThe court=s discretion is

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especially broad where ... it is entry of default that is being set aside.@ O=Connor v. State of

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Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza v. Wight Vineyard Mgmt., 783

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F.2d 941, 945 (9th Cir. 1986)); see also Brady v. United States, 211 F.3d 499, 504 (9th Cir.

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2000). Default is generally disfavored. In re Hammer, 940 F.2d 524, 525 (9th Cir. 1991);

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Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).
Plaintiff’s Request

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A.

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Plaintiff requests entry of default against the defendants because the defendants were

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served with process on or about November 28, 2013, more than 20 days have elapsed, and

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“Defendants have failed to answer or otherwise defend as to Plaintiff’s complaint, or serve a

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copy of any answer or any defense which it might have had.” (Request, Doc. 19 at 1.)

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///

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///
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B.

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On November 18, 2013, the Court issued an order in this action directing the United

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States Marshal (“Marshal”) to serve process in this action upon defendants Cohen, Lopez,

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Dean, and Campbell. (Doc. 13.)

Discussion

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Defendants Campbell, Dean, and Lopez

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On January 9, 2014, the Court received three USM-285 forms from the Marshal

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indicating that personal service was effected upon defendants Campbell, Dean, and Lopez on

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November 27, 2013, which gave those three defendants twenty-one days in which to file an

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answer or motion under Rule 12 in response to Plaintiff=s complaint.

Fed. R. Civ. P.

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12(a)(1)(A)(i). (Doc. 17.) More than twenty-one days passed after service was executed, and

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defendants Campbell, Dean, and Lopez did not file an answer, a motion under Rule 12, or any

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other response to Plaintiff=s complaint. (See Court Docket.) However, on January 27, 2014,

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defendants Campbell, Dean, and Lopez filed an Answer to the complaint. (Doc. 18.)

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Because defendants Campbell, Dean, and Lopez appeared in this action, albeit after

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their deadlines, by filing an Answer on January 27, 2014, the court cannot find that they failed

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to plead or otherwise defend this action. Therefore, Plaintiff is not entitled to entry of default

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against defendants Campbell, Dean, or Lopez.

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Defendant Cohen

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With respect to defendant Cohen, there is no evidence on the court record that

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defendant Cohen has been served with process by the Marshal. (Court Record.) Therefore,

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Plaintiff is not entitled to entry of default against defendant Cohen.

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Defendant Jane Doe

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With respect to defendant Jane Doe (LVN), the court has not directed the Marshal to

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serve this defendant, and there is no evidence that she has been otherwise served. As Plaintiff

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was advised in the court’s order of October 31, 2013, “Plaintiff’s Jane Doe defendant cannot be

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served with process until Plaintiff identifies her and provides sufficient information for the

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Marshal to locate her for service of process.” (Doc. 11 at 8 n.3.) Therefore, Plaintiff is not

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entitled to entry of default against defendant Jane Doe (LVN).
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III.

CONCLUSION

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Based on the foregoing, and good cause appearing, IT IS HEREBY ORDERED that

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Plaintiff=s request for entry of default against the defendants, filed on January 27, 2014, is

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DENIED.

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IT IS SO ORDERED.
Dated:

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January 29, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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