Rushdan v. Davey et al.

Filing 62

ORDER Granting Plaintiff's Request for Entry of Default Against Defendant Casas; ORDER DENYING 58 Motion for Default Judgment, without Prejudice; ORDER Directing Clerk to Enter Default Against Defendant Casas signed by Magistrate Judge Gary S. Austin on 03/27/2020. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALADIN RUSHDAN aka
ROBERT STANLEY WOODS,
Plaintiff,

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ORDER GRANTING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT
AGAINST DEFENDANT CASAS

vs.

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1:16-cv-00988-NONE-GSA-PC

D. DAVEY, et al.,
Defendants.

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ORDER DENYING MOTION FOR
DEFAULT JUDGMENT, WITHOUT
PREJUDICE
(ECF No. 56.)

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ORDER DIRECTING CLERK TO ENTER
DEFAULT AGAINST DEFENDANT CASAS

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I.

PROCEDURAL HISTORY

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Saladan Rushdan, aka Robert Stanley Woods (“Plaintiff”), is a state prisoner proceeding

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pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with

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Plaintiff’s Second Amended Complaint (2ACP) filed on March 9, 2018, against defendant

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Correctional Officer Casas (“Defendant”) for use of excessive force in violation of the Eighth

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Amendment and related state claims.1 (ECF No. 28.)

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On December 23, 2019, Plaintiff filed a request for entry of default and a motion for

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default judgment against Defendant Casas. (ECF No. 56.) Defendant Casas has not filed an

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On October 22, 2018, the court issued an order dismissing all other claims and defendants from
this action, for violation of Rule 18 and failure to state a claim. (ECF No. 35.)

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opposition or otherwise responded to Plaintiff’s request for entry of default or motion for default

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judgment. Based on the applicable law, the court shall grant Plaintiff’s request for entry of

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default and shall order the Clerk of Court to enter default against Defendant Casas.

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II.

BACKGROUND

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On July 29, 2019, the court issued an order directing the United States Marshal (Marshal)

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to serve process on Defendant Casas. (ECF No. 53.) On August 1, 2019, the Marshal served

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the 2ACP on Defendant Casas at the R.J. Donovan Correctional Facility in San Diego, California,

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and on August 2, 2019, Defendant Casas executed a waiver of service of summons form which

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was submitted to the court on August 5, 2019 by the Marshal. (ECF No. 54.) The waiver of

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service form informed Defendant Casas that her response to Plaintiff’s 2ACP was due to be filed

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within 60 days after August 1, 2019. Fed. R. Civ. P. 12(a), 6(d). (Id.) The 60-day time period

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passed and Defendant did not make an appearance in this case or request an extension of time to

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respond to the 2ACP.

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On December 3, 2019, the court issued an order to show cause (OSC) requiring Defendant

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Casas to file a response within 30 days showing cause why default should not be entered against

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her for failing to file a response to the 2ACP. (ECF No. 55.) The OSC was served on Defendant

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Casas at Corcoran State Prison in Corcoran, California, where Defendant Casas was employed

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during the events at issue in the 2ACP. (Id.) On December 13, 2019, the U. S. Postal Service

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returned the OSC to the court with a notation on the envelope that the mail was “Undeliverable,

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Return to Sender, Refused, Unable to Forward.” (Court docket.)

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On December 23, 2019, Plaintiff filed a request for entry of default and motion for default
judgment against Defendant Casas. (ECF No. 56.)

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On January 8, 2020, the court issued another OSC, requiring Defendant Casas to file a

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response within thirty days showing cause why default should not be entered against her. (ECF

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No. 57.) The OSC was served on Defendant Casas at the R.J. Donovan Correctional Facility,

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480 Alta Road, San Diego, CA 92179, where service of process upon Defendant Casas was

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successfully executed on August 1, 2019. (Id.) Defendant was forewarned in the court’s OSC

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that her failure to respond to the OSC may result in entry of default against her. (Id. at 2.) The
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thirty-day time period passed and Defendant Casas did not file any response to the OSC. As of

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the date of this order, the OSC was not returned to the court by the U.S. Postal Service as

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undeliverable.

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III.

ANALYSIS

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Entering default is a two-step process. First, “[w]hen a party against whom a judgment

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for affirmative relief is sought has failed to plead or otherwise defend . . . the clerk must enter

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the party’s default.” Fed. R. Civ. P. 55(a). Second, after default is properly entered, a party

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seeking relief other than a sum certain must apply to the court for a default judgment. Fed. R.

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Civ. P. 55(b).

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Thus, to accomplish the first step here, Plaintiff has filed a request for the court to enter
default against Defendant Casas. (ECF No. 56.)

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The court’s record shows that Defendant Casas was served with the 2ACP and notified

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that she was required to file a response. On August 1, 2019, Defendant was served by the U.S.

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Marshal with Plaintiff’s 2ACP at the R.J. Donavan Correctional Facility, and Defendant signed

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a waiver of service of summons form on August 2, 2019. (ECF No. 54.) The waiver of service

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form notified Defendant that the deadline for filing a response to the 2ACP was 60 days from

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August 2, 2019 (Id.) The 60-day time period passed and Defendant failed to file any response.

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(Court record.) Defendant Casas has had ample time to file a response but she failed to do so.

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In fact, as of the date of this order more than 8 months have passed since Defendant was served

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with the 2ACP.

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On December 3, 2019, the court attempted to serve Defendant Casas with the court’s first

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OSC at Corcoran State Prison, but was unsuccessful. The first OSC was returned to the court by

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the United States Postal Service as undeliverable. (Court record.)

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On January 8, 2020, the court issued the second OSC, serving Defendant Casas at the R.J.

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Donovan Corrections Facility. As stated above, Defendant Casas had been successfully served

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with the 2ACP at the R.J. Donovan Corrections Facility. Service of the second OSC was

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successful; the OSC was not returned to the court as undeliverable. In the OSC Defendant was

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required to file a response within 30 days showing cause why default should not be entered
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against her. The 30-day time period passed and Defendant did not respond to the OSC. As of

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the date of this order it has been more than 2 months since the court served the second OSC on

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Defendant Casas.

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Defendant has continuously failed to defend this action. Furthermore, the undersigned

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warned Defendant that failure to respond to the OSC may result in entry of default against her.

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(ECF No. 57 at 2 ¶ 3.) Based on the foregoing the court finds that Defendant Casas is in default.

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Consequently, the court shall grant Plaintiff’s request for entry of default.

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To accomplish the second step, Plaintiff must file a motion for default judgment against

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Defendant Casas. Plaintiff’s motion for default judgment filed on December 23, 2019, is

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premature because under Rule 55(b), the motion for default judgment must be filed “after default

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is properly entered.” Fed. R. Civ. P. Rule 55(b). Here, Plaintiff has filed the motion for default

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judgment before default was properly entered. Therefore, the court shall deny Plaintiff’s motion

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for default judgment as premature, without prejudice to renewing the motion at a later stage of

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the proceedings.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s request for entry of default against Defendant Casas, filed on December
23, 2019, is GRANTED;

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Plaintiff’s motion for default judgment against Defendant Casas, filed on

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December 23, 2019, is DENIED as premature, without prejudice to renewal of the

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motion at a later stage of the proceedings; and

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3.

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The Clerk of Court is DIRECTED to enter default against Defendant Correctional
Officer Casas and serve a copy of this order on defendant.

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IT IS SO ORDERED.
Dated:

March 27, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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