Manning v. Zamora et al

Filing 25

ORDER discharging 23 Order to Show Cause signed by Magistrate Judge Gary S. Austin on 9/13/2014. ( Response to Complaint due by 10/6/2014).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEROY MANNING,

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Plaintiff,

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1:12-cv-01621-GSA-PC
ORDER DISCHARGING ORDER TO
SHOW CAUSE
(Doc. 23.)

vs.

ORDER GRANTING EXTENSION OF
TIME FOR DEFENDANT KELLY TO FILE
RESPONSE TO COMPLAINT

L. D. ZAMORA, et al.,

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Defendants.

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DEADLINE: OCTOBER 6, 2014

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I.

BACKGROUND

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Leroy Manning ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. ' 1983. On October 3, 2012, Plaintiff filed the

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Complaint commencing this action.

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Complaint against defendant Nurse Julie Kelly (“Defendant”) for inadequate medical care in

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violation of the Eighth Amendment.1

(Doc. 1.)

This action now proceeds on the initial

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On September 16, 2013, the court dismissed all other claims and defendants from this action based on
Plaintiff’s failure to state a claim under § 1983. (Doc. 15.)
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On August 14, 2014, the court issued an order for Defendant to show cause why default

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should not be entered against her for failure to appear in this action. (Doc. 23.) To facilitate

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Defendant’s ability to comply with the order, the court extended Defendant’s obligation to

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respond to the Complaint until thirty days from the date of service of the order. (Id. at 2 ¶2.)

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On September 10, 2014, Defendant filed a response to the order to show cause and requested a

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further extension of time to file a response to the Complaint. (Doc. 24.)

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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, default

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may be entered pursuant to Rule 55(a) of the Federal Rules of Civil 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, as here, it is entry of default that is being set aside, rather than default

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judgment.@ O=Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza

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v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986)); see also Brady v. United States,

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211 F.3d 499, 504 (9th Cir. 2000). Default is generally disfavored. In re Hammer, 940 F.2d

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524, 525 (9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir.

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2009). Therefore, A>[w]here timely relief is sought from a default . . . and the movant has a

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meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the

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[default] so that cases may be decided on their merits.=@ Mendoza, 783 F.2d at 945-46 (quoting

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Schwab v. Bullock=s, Inc., 508 F.2d 353, 355 (9th Cir. 1974) (internal quotations and citation
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omitted)). In determining whether to set aside default, relevant factors including the culpability

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of defendant, the existence of a meritorious defense, and any prejudice to plaintiff should be

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considered. American Ass=n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th

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Cir. 2000).

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III.

DEFENDANT’S RESPONSE TO ORDER TO SHOW CAUSE

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Defendant Kelly requests the court to discharge its order to show cause, on the ground

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that her failure to make a timely response to the Complaint in this action was the result of

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excusable neglect. Defendant declares that she has never been involved in a civil lawsuit

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before and was uncertain what to do when she received documents regarding this lawsuit.

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(Declaration of J. Kelly, Doc. 24-1 ¶2.) She contacted a former medical colleague at Avenal

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State Prison who told her to sign and return the form to the U.S. Marshal and wait for further

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instructions from the court. (Id.) Defendant did as suggested and did not realize that by

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signing the form she had inadvertently represented to the court that she would respond to the

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lawsuit within sixty days. (Id.) On August 22, 2014, Defendant received the court’s order to

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show cause and contacted the same former colleague at Avenal State Prison, who suggested she

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contact the prison’s Litigation Coordinator. (Id. at 2 ¶3.) Defendant declares that until then,

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she had no idea such a position existed. (Id.) Defendant contacted the Litigation Coordinator,

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who assisted her to obtain representation from the Office of the Attorney General. (Id. ¶¶4-8.)

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Defendant declares that she never intended to delay this lawsuit, and she failed to timely

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respond because of her inexperience with litigation and misplaced reliance on the advice of a

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former colleague. (Id. ¶9.)

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IV.

DISCUSSION

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The court finds no evidence of bad faith or willful disobedience by Defendant in failing

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to timely respond to the Complaint. In addition, the court finds no prejudice to Plaintiff in

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allowing Defendant an extension of time to respond to the Complaint. Therefore, the court’s

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order to show cause shall be discharged, and Defendant shall be granted an extension of time to

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file a response to the Complaint.

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V.

CONCLUSION

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

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The court’s order to show cause, issued on August 14, 2014, is DISCHARGED;
and

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Defendant Kelly is granted an extension of time until October 6, 2014 in which
to file a response to the Complaint.

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IT IS SO ORDERED.
Dated:

September 13, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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