Baker v. Gipson et al

Filing 24

ORDER Striking 20 Declaration and Striking 22 Objections signed by Magistrate Judge Michael J. Seng on 02/05/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT G. BAKER

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Plaintiff,
v.

CASE NO. 1:13-cv-01931-MJS (PC)
ORDER (1) STRIKING DECLARATION
(ECF No. 20), AND (2) STRIKING
OBJECTIONS (ECF No. 22)

CONNIE GIPSON, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 7 & 10.) The action

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proceeds against Defendant Kitt on Plaintiff’s Eighth Amendment inadequate medical

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care claim. (ECF No. 11.)

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Defendant Kitt failed to timely answer the complaint and default was entered

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against him. (ECF Nos. 17 & 18.) On December 22, 2014, Defendant filed a motion to

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set aside entry of default. (ECF No. 19.) Thereafter, on January 12, 2015, Plaintiff filed a

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declaration detailing his encounters with Defendant Kitt and alleged ensuing injuries.

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(ECF No. 20.) On January 29, 2015, Defendant filed objections to Plaintiff’s declaration.

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(ECF No. 22.) The Court granted Defendant’s motion to set aside default on February 5,

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2015. (ECF No. 23.)

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Defendant’s objections to Plaintiff’s declaration were filed after entry of default,

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and before the default was set aside. (See ECF Nos. 18 & 23.) The entry of default cut
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off Defendant’s right to appear in this action. See Clifton v. Tomb, 21 F.2d 893, 897 (4th

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Cir. 1927); see also Campos v. Fed. Home Loan Servs., No. 2:13-cv-494-MCE-EFB PS,

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2013 WL 5375525 (Sept. 24, 2013) (“Entry of default against a defendant cuts off that

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defendant’s right to appear in the action or to present evidence.”); Schwarzer et al.,

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FEDERAL CIVIL PROCEDURE BEFORE TRIAL, ¶ 6:42 (2004). Accordingly,

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Defendant’s objections are improper and will be stricken.

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Nevertheless, the Court cannot serve as a repository for the parties' evidence

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(e.g., prison or medical records, affidavits, declarations, etc.). The parties may not file

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evidence with the Court until the course of litigation brings the evidence into question (for

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example, on a motion for summary judgment, at trial, or when requested by the Court).

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Presently, no motions for summary judgment are before the Court, and no trial date has

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been set. Plaintiff’s motion for default judgment (ECF No. 15) was denied without

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prejudice (ECF No. 19), and was not renewed. Therefore, Plaintiff’s declaration will be

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stricken.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s declaration (ECF No. 20) is STRICKEN from the record; and

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2. Defendant’s objections (ECF No. 22) are STRICKEN from the record.

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IT IS SO ORDERED.
Dated:

February 5, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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