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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BINH C. TRAN, 12 No. 2:15-cv-0200 DB P Plaintiff, 13 v. 14 JOKSCH, 15 ORDER Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. 18 § 1983. This matter proceeds on plaintiff’s first amended complaint against Correctional Officer 19 Joksch on an Eighth Amendment failure to protect claim. Plaintiff has consented to the 20 jurisdiction of a magistrate judge. 21 Pending now is plaintiff’s September 7, 2017, motion for default judgment pursuant to 22 Federal Rule of Civil Procedure 55. Plaintiff contends that defendant was served on July 7, 2017, 23 and he has failed to timely answer or otherwise defend himself in this action. 24 Entry of default is appropriate as to any party against whom a judgment for affirmative 25 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of 26 Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 27 55(a). If a defendant fails to plead or otherwise defend an action after being properly served with 28 a summons and complaint, a default judgment may be entered pursuant to Rule 55(a) of the 1 1 Federal Rules of Civil Procedure. Such judgment must be entered by the clerk if the plaintiff’s 2 claim is for a sum certain. Fed. R. Civ. P. 55(b)(1). Alternatively, the party must apply to the 3 court. Fed. R. Civ. P. 55(b)(2). Default is generally disfavored. In re Hammer, 940 F.2d 524, 525 4 (9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009). 5 Plaintiff’s motion for default judgment must be denied because, contrary to plaintiff’s 6 claim, service has not yet occurred on defendant. Rather, the docket reflects that the United States 7 Marshal was directed to serve defendant on July 10, 2017, and the time period for service has not 8 yet expired. See Fed. R. Civ. P. 4(m); ECF No. 23. 9 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default judgment 10 (ECF No. 29) is DENIED. 11 DATED: September 13, 2017 12 13 14 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 /DLB7; DB/Inbox/Substantive/tran0200.def judg 17 18 19 20 21 22 23 24 25 26 27 28 2

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