Howard v. Gonzales

Filing 42

ORDER Denying Plaintiff's Motions for Entry of Default re 33 , 34 , signed by Magistrate Judge Dennis L. Beck on 07/03/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY HOWARD,

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Plaintiff,

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vs.
C. GONZALES,
Defendant.

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1:12cv00487 LJO DLB PC
ORDER DENYING PLAINTIFF’S
MOTIONS FOR ENTRY OF DEFAULT
JUDGMENT
(Documents 33 and 34)

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Plaintiff Timothy Howard (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action filed on March 30, 2012. This action is proceeding against
Defendant Gonzales for violation of the First and Eighth Amendments.
On March 19, 2013, the Court ordered the United States Marshal to serve Defendant.
On February 7, 2014, the United States Marshal filed a proof of service indicating that

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Defendant was served personally.
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On May 1, 2014, Plaintiff filed a motion requesting that the Court order Defendant
Gonzales to file an answer. On May 9, 2014, the Court granted the motion in part. Instead of
ordering Defendant to answer the complaint, the Court issued an order to show cause why
default should not be entered.
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On May 22, 2014, Defendant filed an answer along with a declaration. In her
declaration, Defendant stated that she was not aware of the action until May 14, 2014, and had
not been served either personally or by mail. Therefore, on May 23, 2014, the Court discharged
the order to show cause.
On June 6, 2014, Plaintiff filed a motion for reconsideration of the Court’s May 23, 2014,

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order discharging the order to show cause. The motion has been denied by separate order.
Also on June 6, 2014, Plaintiff filed requests for entry of default judgment. The requests
assume that the Clerk of the Court has already entered default. However, as explained above, the

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Court has denied Plaintiff’s request for reconsideration and this action will proceed on the

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merits. Therefore, default has not been entered and Plaintiff’s request for entry of default

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judgment is procedurally improper.

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Accordingly, Plaintiff’s motions are DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

July 3, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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