Gipbsin v. Deforest, Goni, Prater, Shelton and Stone

Filing 148

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/26/09 ordering the clerk of the court shall not enter defendants' default and plaintiff's 10/19/09 motion 146 is denied.(Plummer, M)

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 vs. SCOTT KERNAN, et al., Defendants / Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On October 19, 2009, plaintiff requested that a default judgment be entered against defendants Deforest, Shelton, Prater, Goni, and Stone. Federal Rule of Civil Procedure 55(a) states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Defendants timely served their answer on October 9, 2009. Thus, defendants have not "failed to plead or otherwise defend" and plaintiff has not shown he is entitled to default. Accordingly, the Clerk of the Court shall not enter defendants' default and plaintiff's October 19, 2009, motion is denied.. So ordered. Dated: October 26, 2009. ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CLARENCE A. GIPBSIN, Plaintiff, No. CIV S-07-0157 MCE EFB P