Tran v. Turner et al
ORDER signed by Magistrate Judge Deborah Barnes on 09/13/17 DENYING 29 Motion for Default Judgment. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BINH C. TRAN,
No. 2:15-cv-0200 DB P
Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.
§ 1983. This matter proceeds on plaintiff’s first amended complaint against Correctional Officer
Joksch on an Eighth Amendment failure to protect claim. Plaintiff has consented to the
jurisdiction of a magistrate judge.
Pending now is plaintiff’s September 7, 2017, motion for default judgment pursuant to
Federal Rule of Civil Procedure 55. Plaintiff contends that defendant was served on July 7, 2017,
and he has failed to timely answer or otherwise defend himself in this action.
Entry of default is appropriate as to any party against whom a judgment for affirmative
relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of
Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.
55(a). If a defendant fails to plead or otherwise defend an action after being properly served with
a summons and complaint, a default judgment may be entered pursuant to Rule 55(a) of the
Federal Rules of Civil Procedure. Such judgment must be entered by the clerk if the plaintiff’s
claim is for a sum certain. Fed. R. Civ. P. 55(b)(1). Alternatively, the party must apply to the
court. Fed. R. Civ. P. 55(b)(2). Default is generally disfavored. In re Hammer, 940 F.2d 524, 525
(9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).
Plaintiff’s motion for default judgment must be denied because, contrary to plaintiff’s
claim, service has not yet occurred on defendant. Rather, the docket reflects that the United States
Marshal was directed to serve defendant on July 10, 2017, and the time period for service has not
yet expired. See Fed. R. Civ. P. 4(m); ECF No. 23.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default judgment
(ECF No. 29) is DENIED.
DATED: September 13, 2017
/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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