McCoy v. Garikaparthi et al

Filing 31

ORDER DENYING Plaintiff's 27 Motion for Entry of Default; ORDER DENYING Plaintiff's 28 Motion for a Civil Subpoena signed by Magistrate Judge Barbara A. McAuliffe on 12/9/2015. (Sant Agata, S)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
LAKEITH L. McCOY,
12

Case No. 1:13-cv-01495 BAM (PC)
Plaintiff, ORDER DENYING PLAINTIFF’S MOTION
FOR ENTRY OF DEFAULT

13
v.
14
15

(ECF No. 27)
ORDER DENYING PLAINTIFF’S MOTION
FOR A CIVIL SUBPOENA

M. GARIKAPARTHI, et al.,

16

Defendants.
(ECF No. 28)

17
18
Plaintiff LaKeith L. McCoy (“Plaintiff”) is a state prisoner proceeding pro se and in forma

19
20

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on

21

Plaintiff’s first amended complaint against Defendants Garikaparthi, Steiber, Keeler and Chavez

22

for violation of Plaintiff’s Eighth Amendment rights arising from the alleged deprivation of

23

adequate food.
On November 23, 2015, Plaintiff filed a motion for entry of default against Defendants.

24
25

(ECF No. 27.) That same day, he also filed a motion seeking issuance of a civil subpoena. (ECF

26

No. 28.) On December 3, 2015, Defendants filed an opposition to both motions. (ECF No. 29.)

27

No reply is necessary, and the motions are deemed submitted. Local Rule 230(l).

28

///
1

1

Plaintiff argues that because Defendants have been served with the complaint in this case

2

but did not file any answer or “other defense” by the deadline for such a response, he is entitled to

3

an entry of default in this action. He filed a declaration in support.

4

Entry of default is appropriate as to any party against whom a judgment for affirmative

5

relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

6

Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P.

7

55(a). After entry of default, the plaintiff can seek entry of default judgment. Fed. R. Civ. P.

8

55(b)(1) and (2). “Default judgments are generally disfavored, and whenever it is reasonably

9

possible, cases should be decided upon their merits.” In re Hammer, 940 F.2d 524, 525 (9th Cir.

10
11

1991) (internal punctuation and citations omitted).
Entry of default is not appropriate here. On November 19, 2015, Defendants appeared

12

through counsel, (ECF No. 24), filed a motion for an order revoking Plaintiff’s in forma pauperis

13

status or to dismiss this case, (ECF No. 26), and filed a motion seeking an extension of time to

14

respond to Plaintiff’s complaint until their other motion is ruled upon by the Court, (ECF No. 25).

15

Defendants’ motion regarding Plaintiff’s in forma pauperis status may dispose of this case.

16

Consequently, Defendants have appeared, are defending this action, and have not defaulted.

17

Furthermore, the Court agrees with Defendants that consideration of Plaintiff’s motion for

18

a civil subpoena should be deferred until after the Court rules on Defendants’ motion challenging

19

Plaintiff’s in forma pauperis status, to conserve judicial resources and promote efficiency.

20

Accordingly, IT IS HEREBY ORDERED that:

21

1.

Plaintiff’s motion for default, (ECF No. 27), is DENIED; and

22

2.

Plaintiff’s motion for a civil subpoena, (ECF No. 28), is DENIED, without

23

prejudice to refiling after the Court rules upon Defendants’ motion for an order revoking

24

Plaintiff’s in forma pauperis status or to dismiss this case.
IT IS SO ORDERED.

25
26

Dated:

/s/ Barbara

December 9, 2015

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

27
28
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3