Jones v. Arnette, et al.

Filing 94

ORDER DENYING 89 Plaintiff's Motion for Default Judgment Against Defendant Zamora, Without Prejudice signed by Magistrate Judge Gary S. Austin on 7/17/2021. (Jessen, A)

Case 1:16-cv-01212-DAD-GSA Document 94 Filed 07/19/21 Page 1 of 2

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JEREMY JONES,

12

ORDER DENYING PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT AGAINST
DEFENDANT ZAMORA, WITHOUT
PREJUDICE
(ECF No. 89.)

Plaintiff,

13
14

1:16-cv-01212-DAD-GSA-PC

vs.
ARNETTE, et al.,

15

Defendants.

16
17

I.

BACKGROUND

18

Jeremy Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

19

with this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act

20

(ADA), 42 U.S.C. § 12132.

21

Complaint, filed on September 10, 2018, on: (1) Plaintiff’s ADA claims against defendants

22

Vasquez, Keener, Gonzales,1 Flores, Arnett,2 Zamora, and Lopez, in their official capacities; 2)

23

Plaintiff’s Eighth Amendment conditions of confinement claims against defendants Vasquez,

24

Keener, and Gonzales; and, (3) Plaintiff’s due process claims against defendants Vasquez,

25

Keener, and Gonzales. (ECF No. 33.)

This case now proceeds with Plaintiff’s Second Amended

26
27
1

Sued as Gonzalez.

2

Sued as Arnette.

28
1

Case 1:16-cv-01212-DAD-GSA Document 94 Filed 07/19/21 Page 2 of 2

1

On June 14, 2021, Plaintiff filed a motion for default judgment against defendant Zamora.

2

(ECF No. 89.) No opposition has been filed.

3

II.

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

4

In this case defendant Zamora was personally served with process on March 19, 2021.

5

(ECF No. 71.) More than 60 days have passed and defendant Zamora has not filed an answer, a

6

motion under Rule 12, or any other response to Plaintiff’s complaint. (See court record.) Thus,

7

Plaintiff now seeks default judgment against defendant Zamora in the amount of $200,000.00.

8

Plaintiff is advised that the Federal Rules of Civil Procedure provide a two-step process

9

when a defendant fails to respond. Fed. R. Civ. P. 55. First, there must be an entry of default as

10

provided by Rule 55(a). Under Rule 55(a), the clerk is to enter the default of a party against

11

whom a judgment is sought when that party has failed to plead or otherwise defend. Fed. R. Civ.

12

P. 55(a). Once the clerk of the court enters default, only then may plaintiff move for default

13

judgment. Federal Rule of Civil Procedure 55(b)(2) provides for a court-ordered default

14

judgment after an entry of default under Federal Rule of Civil Procedure 55(a). See Penpower

15

Technology Ltd. v. SPC Technology, 627 F.Supp.2d 1083, 1088 (N.D. Cal. 2008). Because the

16

clerk’s default has not yet been entered, as required under Rule 55(a), Plaintiff's motion for

17

default judgment is premature. Therefore, Plaintiff’s motion for default judgment is denied

18

without prejudice. If appropriate, Plaintiff may file a motion for default judgment after default

19

is entered by the clerk of court.

20

III.

21
22

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's motion for default

judgment against defendant Zamora, filed on June 14, 2021, is denied without prejudice.

23
24
25
26

IT IS SO ORDERED.
Dated:

July 17, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

27
28
2