Avery v. Nangalama et al

Filing 27

ORDER signed by Circuit Judge Marsha S. Berzon on 6/3/11 DENYING AS MOOT 24 Motion for Default Judgment, 22 Motion for Entry, and 21 Motion to Compel. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KYLE AVERY,

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Plaintiff,
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vs.
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NANGALAMA, MENON, K. ADAMS,)
GOLDFIELD, and PENNER,
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Defendants.
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Case No. 2:08-cv-02873-MSB
ORDER

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Plaintiff Kyle Avery, who is confined in the California State Prison, Sacramento,

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filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. (Dkt. #1). On April 12,

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2010, this Court screened the complaint and ordered it served on Defendants Adams, Menon,

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and Nangalama. (Dkt. #9).

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On January 19, 2010, Avery filed a Motion to Compel Service of Complaint, asking

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this Court to “re-order it’s [sic] clerk to order marshals [sic] to complete service” of the

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complaint. (Dkt. #21). On March 25, 2010, Avery filed a Motion to Clerk For Entry of

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Default Against Defendants Failure to Answer Service of Complaint or to File Proper

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Waiver, contending that he had not yet received a receipt of service, stating that he did not

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know whether the Marshals had effected service of the complaint, and asking the Court to

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enter default judgment against the Defendants. Finally, on April 22, 2010, Avery filed a

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Motion For Default Judgment by the Court. (Dkt. #24). Avery stated that he assumed service

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had been effected upon Defendants and asked that default judgment be entered against them

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for their failure to file an answer. (Dkt. #24).

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Avery filed a Motion to Amend his original complaint on May 18, 2010. (Dkt. #12).

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On April 22, 2011, the Court screened Avery’s amended complaint and ordered it filed and

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served on Defendants Nangalama, Menon, Adams, Goldfield, and Penner. (Dkt. #23).

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Avery’s amended complaint supersedes his original complaint. Bullen v. De

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Bretteville, 239 F.2d 824, 833 (9th Cir. 1956). As a result, his three pending motions with

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regard to the original complaint (Dkt. #1) are now moot. If Defendants fail to timely respond

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to Avery’s amended complaint, he may file a new motion for default judgment. See Gray v.

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Hernandez, No. 3:08-cv–01147, 2010 WL 6230519, at *10 (S.D. Cal. Nov. 30, 2010);

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Miller v. Woodford, No. 2:07-cv-01646, 2009 WL 2365716, at *2 (E.D. Cal. July 31, 2009)

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(report and recommendation of magistrate), adopted, 2009 WL 3233903, at *1 (E.D.Cal.

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Sept. 30, 2009).

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Accordingly, it is hereby ordered that Plaintiff’s:

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(1) Motion to Compel Service of Complaint (Dkt. #21);

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(2) Motion to Clerk For Entry Against Defendants Failure to Answer Service of

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Complaint or to File Proper Waiver (Dkt. #22); and

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(3) Motion for Default Judgment by the Court (Dkt. # 24)

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are DENIED as moot.

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DATED this 3rd day of June, 2011.

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/s/ Marsha S. Berzon
MARSHA S. BERZON
United States Circuit Judge
sitting by designation

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