Tran v. Turner et al

Filing 32

ORDER signed by Magistrate Judge Deborah Barnes on 09/13/17 DENYING 29 Motion for Default Judgment. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BINH C. TRAN,

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No. 2:15-cv-0200 DB P
Plaintiff,

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v.

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JOKSCH,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.

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§ 1983. This matter proceeds on plaintiff’s first amended complaint against Correctional Officer

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Joksch on an Eighth Amendment failure to protect claim. Plaintiff has consented to the

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jurisdiction of a magistrate judge.

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Pending now is plaintiff’s September 7, 2017, motion for default judgment pursuant to

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Federal Rule of Civil Procedure 55. Plaintiff contends that defendant was served on July 7, 2017,

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and he has failed to timely answer or otherwise defend himself in this action.

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.

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55(a). If a defendant fails to plead or otherwise defend an action after being properly served with

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a summons and complaint, a default judgment may be entered pursuant to Rule 55(a) of the
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Federal Rules of Civil Procedure. Such judgment must be entered by the clerk if the plaintiff’s

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claim is for a sum certain. Fed. R. Civ. P. 55(b)(1). Alternatively, the party must apply to the

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court. Fed. R. Civ. P. 55(b)(2). Default is generally disfavored. In re Hammer, 940 F.2d 524, 525

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(9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).

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Plaintiff’s motion for default judgment must be denied because, contrary to plaintiff’s

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claim, service has not yet occurred on defendant. Rather, the docket reflects that the United States

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Marshal was directed to serve defendant on July 10, 2017, and the time period for service has not

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yet expired. See Fed. R. Civ. P. 4(m); ECF No. 23.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default judgment

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(ECF No. 29) is DENIED.

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DATED: September 13, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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/DLB7;
DB/Inbox/Substantive/tran0200.def judg

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