O'Connell v. Kern Valley State Prison et al

Filing 23

ORDER Denying Plaintiff's Request For Default Judgment (ECF No. 22 ), signed by Magistrate Judge Barbara A. McAuliffe on 10/15/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN P. O’CONNELL,

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CASE NO. 1:11-cv–02163-BAM PC

Plaintiff,
ORDER DENYING PLAINTIFF’S REQUEST
FOR DEFAULT JUDGMENT

v.
KERN VALLEY STATE PRISON, et al.,

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(ECF No. 22)

Defendants.
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Plaintiff Kevin P. O’Connell is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first amended

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complaint, filed June 25, 2012, against Defendants Howards, Northcutt, and Rodriguez for excessive

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force in violation of the Eighth Amendment and assault and battery in violation of state law. (ECF

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No. 19.) On July 26, 2012, an order issued directing the United States Marshal to initiate service on

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the defendants. Plaintiff filed a motion for a request for default judgment on October 12, 2012.

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(ECF No. 22.)

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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 court issued an order directing the United States Marshal to initiate service. Until defendants

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have either waived service and failed to respond within sixty days or been personally served and

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failed to respond within twenty days, they are not in default and plaintiff is not entitled to entry of

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default.
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Further, pursuant to Federal Rules of Civil Procedure 55, obtaining a default judgment is a

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two step process. Yue v. Storage Technology Corp., No. 3:07-cv-05850, 2008 WL 361142, *2

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(N.D.Cal. Feb, 11, 2008). After entry of default, the plaintiff can seek entry of default judgment.

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Fed. R. Civ. P. 55(b)(1) and (2). Plaintiff may not receive an entry of default judgment, because

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there has been no entry of default against any defendant in this action.

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Accordingly, Plaintiff’s request for entry of default judgment, filed October 12, 2012, is
HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
10c20k

October 15, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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