Brown v. Harris et al

Filing 15

ORDER Denying Plaintiff's 14 Request for Entry of Default signed by Magistrate Judge Gary S. Austin on 09/23/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CORNELL BROWN,

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Plaintiff,

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1:12-cv-01472-GSA-PC
ORDER DENYING PLAINTIFF=S
REQUEST FOR ENTRY OF DEFAULT
(Doc. 14.)

vs.
C/O R. HARRIS, et al.,

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Defendants.

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I.

BACKGROUND
Cornell Brown (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on September 10, 2012. (Doc. 1.) On September 10, 2012, Plaintiff

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consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no

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other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of

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the Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3). This case now proceeds on Plaintiff’s initial Complaint, against

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defendant Harris for excessive force in violation of the Eighth Amendment, and defendant

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Nelson for failure to protect Plaintiff in violation of the Eighth Amendment.

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On September 20, 2013, Plaintiff filed a request for entry of default against the

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defendants to this action. (Doc. 14.)

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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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Plaintiff’s Request

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Plaintiff requests entry of default against the defendants to this action. Plaintiff asserts

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that court records indicate that on May 5, 2013, the defendants were served by the United

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States Marshal (“Marshal”) with a copy of the summons and complaint. Plaintiff argues that

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default should be entered against the defendants because more than twenty days have elapsed

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since they were served, and they failed to plead or otherwise defend in this action.

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Discussion

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Court records do not reflect Plaintiff’s assertion that the defendants were served with

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process on May 5, 2013. (Court Record.) On May 23, 2013, the court issued an order directing

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the United States Marshal (“Marshal”) to serve process in this action upon defendants Harris

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and Nelson (“Defendants”). (Doc. 8.) To date, the court has not received any notice that

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Defendants were served or that service by the Marshal was unsuccessful. (Court Record.)

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Plaintiff has not shown that Defendants were properly served with process and failed to plead

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or otherwise defend pursuant to Rule 55(a). Fed. R. Civ. P. 55(a). Therefore, Plaintiff’s

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request for entry of default must be denied.

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III.

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

default against Defendants, filed on September 20, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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September 23, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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