Willis v. Cassey et al

Filing 54

ORDER signed by Magistrate Judge Gregory G. Hollows on 09/20/12 defendant's counsel's response regarding the 07/11/12 order to show cause indicates the omission was entirely inadvertent and counsel has now filed a belated answer on defendant Johnson's behalf. The court will excuse defendant's tardiness on this representation, find defendant Johnston not to be in default and deem the show cause order discharged. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCELL WILLIS,

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Plaintiff,

No. 2:10-cv-1631 KJM GGH P

vs.
FOLSOM STATE PRISON
MEDICAL STAFF, et al.,

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Defendants.

ORDER

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Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C.

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§ 1983. By order filed on July 11, 2012, defendant Johnston was granted fourteen days to show

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cause why defendant Johnston should be found to be in default for having failed to provide a

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timely response. Defendant’s counsel’s response indicates the omission was entirely inadvertent

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and counsel has now filed a belated answer on defendant Johnston’s behalf. The court will

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excuse defendant’s tardiness on this representation, find defendant Johnston not to be in default

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and deem the show cause order discharged.1

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Defendants counsel appears to believe that the court is without power to enter default
sua sponte. Indeed, the rule requires the clerk to enter default (who may, of course act without
motion) when a sued party has been shown to be in default by affidavit “or otherwise”, e.g., court
records. Fed. R. Civ. P. 55(a). Nothing in the rule requires the clerk to await a formal motion by
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IT IS SO ORDERED.
DATED: September 20, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: 009
will1631.ord

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the party seeking default, a motion which the clerk is not authorized to adjudicate. The court’s
order to show cause was simply a “wake-up call” to act before the clerk entered default because
the records of the court showed that a defendant in this case had possibly not
responded/answered. No good deed.....
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