Asberry v. Cate et al

Filing 59

ORDER signed by Magistrate Judge Kendall J. Newman on 8/10/12 DENYING 57 Motion to file a motion for default judgment construed as a request for entry of default, is DENIED. (Dillon, 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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TONY ASBERRY,

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Plaintiff,

No. 2: 11-cv-2462 KJM KJN P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s July 23, 2012 request for

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permission to file a motion for default judgment (Dkt. No. 57), which the court construes as a

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motion for entry of default. See Fed. R. Civ. P. 55(a). In this motion, plaintiff alleges that

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defendants have not filed a timely response to his third amended complaint.

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On July 23, 2012, defendants Virga, Phelps, McCarvel, Bobbala, Nangalama,

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Wedell and Ali were granted thirty days to file a response to plaintiff’s Eighth Amendment and

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state law claims contained in the third amended complaint. (Dkt. No. 55.) In the July 23, 2012

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order, the court also ordered service of defendants Elton, Dhillon, Duc and Chin. (Id.) Thirty

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days have not passed since July 23, 2012, and defendants Elton, Dhillon, Duc and Chin have not

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been served. For these reasons, defendants are not in default.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to file a motion

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for default judgment (Dkt. No. 57), construed as a request for entry of default, is denied.

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DATED: August 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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as2462.def

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