Hightower v. High Desert State Prison et al

Filing 52

ORDER signed by Magistrate Judge Edmund F. Brennan on 04/15/11 ordering the clerk shall enter defendant's default. The clerk shall serve a copy of this order on Monica Anderson, Supervising Deputy Attorney General. (cc: Monica Anderson, Attorney General) (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

CURTIS HIGHTOWER,
Plaintiff,

11
vs.

12
13

No. CIV S-08-0228 EFB P

W. PATTON,
Defendant.

14

ORDER
/

15
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

16
17

U.S.C. § 1983. Defendant Patton was personally served, but has not filed a responsive pleading

18

to the complaint. See Dckt. No. 45. On March 8, 2011, the court ordered defendant to show

19

cause within 21 days why default should not be entered against him, and directed the clerk to

20

serve a copy of the order on Monica Anderson, Supervising Attorney General. The time has

21

passed and defendant has not responded to the order. Nor has anyone responded on defendant’s

22

behalf.

23

Federal Rule of Civil Procedure 55(a) states:

24

When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.

25
26

Here, a review of the docket shows that defendant has failed to plead or otherwise defend.
1

1
2
3
4

Therefore, the clerk must enter defendant’s default.
If plaintiff wishes to seek a default judgment against defendant, he is advised that Federal
Rule of Civil Procedure 55(b) (“Entering a Default Judgment”) states:

11

(1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be
made certain by computation, the clerk–on the plaintiff’s request, with an
affidavit showing the amount due–must enter judgment for that amount and costs
against a defendant who has been defaulted for not appearing and who is neither a
minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default
judgment....If the party against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative must be served
with written notice of the application at least 7 days before the hearing. The court
may conduct hearings or make referrals–preserving any federal statutory right to a
jury trial–when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.

12

Thus, plaintiff may wish to file a motion requesting that default judgment be entered

5
6
7
8
9
10

13

against defendant.

14

Accordingly, it is hereby ORDERED that:

15

1. The Clerk shall enter defendant’s default; and

16

2. The Clerk shall serve a copy of this order on Monica Anderson, Supervising

17

Deputy Attorney General.

18

Dated: April 15, 2011.

19
20
21
22
23
24
25
26
2