Chavez, Jr. v. Lane et al
MEMORANDUM OPINION AND ORDER. Plaintiff's 63 Declaration for Entry of Default construed as a Motion for Entry of Default, is hereby denied. To the extent the motion might be construed as a motion for default judgment pursuant to Fed. R. Civ. P. 55(b), it is also DENIED. Signed by Magistrate Judge Judith K. Guthrie on 6/19/12. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
NAZARIO CHAVEZ, JR., #01539693
DARRON LANE, ET AL.
CIVIL ACTION NO. 9:11cv121
MEMORANDUM OPINION AND
ORDER DENYING ENTRY OF DEFAULT
Plaintiff Nazario Chavez, an inmate confined in the Eastham Unit of the Texas prison system,
proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit
under 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of the
parties pursuant to 28 U.S.C. § 636(c).
The original complaint was filed on July 21, 2011. On February 9, 2012, the Court
conducted an evidentiary hearing, in accordance with Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985), to consider the Plaintiff’s claims. Following the hearing, the Court issued a Memorandum
Opinion and Order of Partial Dismissal dismissing Defendants Erwin and Oliver but permitting
Plaintiff to proceed with his claim of excessive use of force against Defendant Lane. Concurrently,
the Court issued an Order to Answer the complaint, giving Defendant Lane 30 days from receipt of
the order to file an answer. See docket entry #36 dated February 13, 2012. The Law Enforcement
Division of the Office of the Texas Attorney General, acting on behalf of the remaining Defendant,
acknowledged receipt of the Order to Answer on March 1, 2012. See docket entry #40. Defendant
filed his answer on March 29, 2012. See docket entry #45.
Plaintiff now files his Declaration for Entry of Default (docket entry #63), seeking entry of
default based on his claim that Defendant Lane has been “evasive” and not timely in responding to
his discovery requests. See Declaration at 2. The Court construes the Declaration as a Motion for
Entry of Default, Plaintiff’s second such motion.
First, as the Court determined in response to Plaintiff’s first such motion, Defendant has
timely filed his answer to the complaint. Therefore, there is no basis for Plaintiff’s motion. As
Defendant points out, the fact that he has answered is all that is required to preclude entry of default
under Fed. R. Civ. P. 55. See New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996)
(citing Fed. R .Civ. P. 55(a) (“When a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must entry the party’s default.” (emphasis added)). Defendant has not failed to plead in response or
defend in response to the complaint. Therefore, entry of default is not warranted.
Second, even if there were a basis for entry of default simply over a discovery dispute, the
Court has limited discovery in this case to the initial disclosures ordered in the Order to Answer and
Scheduling Order of February 13, 2012 (docket entry #36), except for discovery approved by the
Court. The Court has not approved any such additional discovery and, by separate Order, has denied
Plaintiff’s attempts to seek such discovery. Defendant Lane has filed notices of disclosure and
Plaintiff has not identified in any way how his disclosures are deficient.
It is therefore
ORDERED that Plaintiff’s Declaration for Entry of Default (docket entry #63), construed
as a Motion for Entry of Default, is hereby DENIED. To the extent the motion might be construed
as a motion for default judgment pursuant to Fed. R. Civ. P. 55(b), it is also DENIED.
So ORDERED and SIGNED this 19 day of June, 2012.
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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