Henderson v. California Department of Corrections and Rehabilitations et al

Filing 75

ORDER Directing Clerk to Enter Default Against Dr. Shampain by Judge Ronald M. Whyte. Denying 65 Motion for Default Judgment; Granting 67 Motion for Entry of Default. (jg, COURT STAFF) (Filed on 5/13/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CURTIS LEE HENDERSON, SR.,

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Plaintiff,
v.
DR. J. ESPINOZA, et al.,
Defendants.

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No. C 11-4918 RMW (PR)
ORDER DIRECTING CLERK TO
ENTER DEFAULT AGAINST
DR. SHAMPAIN; DENYING
MOTION FOR DEFAULT
JUDGMENT
(Docket Nos. 65, 67)

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint

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pursuant to 42 U.S.C. § 1983. Plaintiff has requested entry of default against defendant Dr.

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Shampain. After several attempts at serving Dr. Shampain, on October 10, 2012, the court

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received an executed summons from Dr. Shampain.

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Rule 55(a) of the Federal Rules of Civil Procedure requires that the clerk of the court

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enter default “when a party against whom a judgment for affirmative relief is sought has failed to

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plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P.

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55(a). Rule 55(b)(2) provides that the court may grant a default judgment after default has been

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entered by the clerk of the court. Here, Dr. Shampain has neither appeared in this action nor

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filed anything in this court. Thus, the clerk is directed to enter the default of defendant Dr.

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Shampain, pursuant to Federal Rule of Civil Procedure 55(a).

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Defendant Dr. Shampain is directed to file within (30) thirty days of the filing date of
Order Directing Clerk to Enter Default Against Dr. Shampain; Denying Motion for Default Judgment
P:\PRO-SE\SJ.Rmw\CR.11\Henderson918entdefault.wpd

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this order a motion to set aside the default for good cause in accordance with the court’s order of

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service to avoid default judgment pursuant to Federal Rule of Civil Procedure 55.1 The failure

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to comply may result in a default judgment being entered against Dr. Shampain.

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The clerk shall serve a copy of this court’s order of service (doc. no. 13) upon Dr. David
Shampain, 530 Teft Street, Nipomo, CA 93444.

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This order terminates docket nos. 65 and 67.

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IT IS SO ORDERED.

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DATED: 5/13/13
RONALD M. WHYTE
United States District Judge

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Plaintiff’s motion for a default judgment is denied without prejudice as premature.

Order Directing Clerk to Enter Default Against Dr. Shampain; Denying Motion for Default Judgment
P:\PRO-SE\SJ.Rmw\CR.11\Henderson918entdefault.wpd 2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CURTIS LEE HENDERSON SR.,

Case Number: CV11-04918 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
CA DEPT OF CORRECTIONS et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 13, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Curtis Lee Henderson H-43488
Corcoran State Prison
D1-148
P.O. Box 5242
Corcoran, CA 93212
Dated: May 13, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk