Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1991)

MEMORANDUM^** 

Jerry Woods appeals the dismissal of his civil rights action against Judith Allen, Clerk of the Marciopa County Superior Court. Woods argues that the district court erred in (1) dismissing his action for failure to state a claim and (2) refusing to enter a default judgment against Allen for her failure to answer the complaint within the twenty-day period proscribed by Fed. R. Civ. P. 12(a). We affirm.

To show that his constitutional rights were violated by the delay in the filing of his state court complaint, Woods must show that: (1) his tort action implicates a fundamental interest, and (2) he has no alternative recourse that is not conditioned on the payment of a fee. Piatt v. MacDougall, 773 F.2d 1032, 1034-35 (9th Cir. 1985). We agree with the district court's conclusion that Woods' complaint, construed liberally, does not contain allegations sufficient to satisfy either prong of this test. See United States v. Kras, 409 U.S. 434, 445-446 (1973); Boddie v. Connecticut, 401 U.S. 371 (1971).

A district court's denial of a default judgment is reviewed for an abuse of discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The district court concluded that the circumstances causing the defendant's untimely response, the minimal delay, and the lack of prejudice to Woods, did not warrant entry of default or default judgment. We agree. See Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe, 616 F.2d at 1092-93. Moreover, as discussed above, we have concluded that Woods' complaint is without merit. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Consequently, the district court did not abuse its discretion in refusing to enter a default judgment against defendant Allen.

Accordingly, the district court's holding is AFFIRMED.