Urquiza v. Yoder

Filing 19

ORDER denying 16 Request for Entry of Default signed by Magistrate Judge Michael J. Seng on 11/28/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HUMBERTO URQUIZA,
Plaintiff,

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Case No. 1:16-cv-01563-LJO-MJS (PC)
ORDER DENYING REQUEST FOR ENTRY
OF DEFAULT

v.
(ECF No. 16)

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T. YODER,
Defendant.

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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 28 U.S.C. § 1983. The action proceeds on Plaintiff’s

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Eighth Amendment claim against Defendant Yoder. (ECF No. 9.)

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On October 16, 2017, Defendant Yoder timely responded to the complaint by

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filing a motion to dismiss. (ECF No. 15.) See Fed. R. Civ. P. 12(a)(4), 12(b). On October

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20, 2017, Plaintiff moved for entry of default. (ECF No. 16.)

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Federal Rule of Civil Procedure 55(a) requires the Clerk of Court to enter default

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against a party when that party has “failed to plead or otherwise defend, and that failure

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is shown by affidavit or otherwise.” Here, Defendant Yoder timely responded to Plaintiff’s

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complaint. There is no basis for entering default against him.
Accordingly, Plaintiff’s request for entry of default is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

November 28, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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