(PC) Maeshack v. Avenal State Prison, et al, No. 1:2006cv00011 - Document 125 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 118 Plaintiff's Motion for Default Judgment be DENIED re 108 Second Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gary S. Austin on 11/28/2012. Referred to Judge Ishii. Objections to F&R due within twenty (20) days. (Jessen, A)
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(PC) Maeshack v. Avenal State Prison, et al Doc. 125 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT MAESHACK, 12 1:06-cv-00011-AWI-GSA-PC Plaintiff, 13 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT BE DENIED (Doc. 118.) v. 14 AVENAL STATE PRISON, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE IN 20 DAYS / 16 17 I. BACKGROUND 18 Robert Maeshack ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 20 22, 2005. (Doc. 1.) This action now proceeds on the Second Amended Complaint, filed on January 21 11, 2012, against defendant Dr. Sweetland ("Defendant"), for inadequate medical care in violation 22 of the Eighth Amendment. (Doc. 108.) 23 On March 19, 2012, Plaintiff filed a motion for default judgment against Defendant. (Doc. 24 118.) 25 II. ENTRY OF DEFAULT AND DEFAULT JUDGMENT 26 Entry of default is appropriate as to any party against whom a judgment for affirmative relief 27 is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil 28 Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule 1 Dockets.Justia.com 1 12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an answer within 2 21 days after being served with the summons and complaint; or if it has timely waived service under 3 Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. Civ. P. 12(a)(1)(A). 4 Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver 5 of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or otherwise defend an action after 6 being properly served with a summons and complaint, a default judgment may be entered pursuant 7 to Rule 55(a) of the Federal Rules of Civil Procedure. 8 III. DISCUSSION 9 In his motion, Plaintiff first argues that Defendant Sweetland has not filed an answer or other 10 defense against the First Amended Complaint since Defendant was served. The record in this action 11 shows otherwise. On October 21, 2010, Defendant was personally served with a summons and copy 12 of the First Amended Complaint by the United States Marshal. (Doc. 79.) Defendant requested and 13 was granted two extensions of time to file a response to the First Amended Complaint. (Docs. 80, 14 81, 82, 83.) On January 6, 2011, Plaintiff filed a motion to dismiss. (Doc. 84.) Based on this 15 record, there is no evidence that Defendant failed to plead or otherwise defend against the First 16 Amended Complaint, and Plaintiff is not entitled to entry of judgment or default judgment against 17 Defendant on this ground. 18 Next, Plaintiff argues that he is entitled to default judgment against defendant Sweetland 19 because Defendant has not filed a response to the Second Amended Complaint, as ordered by the 20 Court on February 10, 2012. Again, the record in this action clearly shows otherwise. On February 21 10, 2012, the Court issued an order requiring Defendant Sweetland to file a response to the Second 22 Amended Complaint within thirty days. (Doc. 114.) On March 9, 2012, Defendant timely filed a 23 motion to dismiss. (Doc. 117.) This evidence shows that Defendant timely responded to the Second 24 Amended Complaint, as ordered by the Court. Therefore, Plaintiff is not entitled to entry of default 25 or default judgment against Defendant on this ground. 26 Plaintiff is advised that Defendant’s failure, to date, to file an answer in this action does not 27 entitle Plaintiff to entry of default or default judgment. Under Rule 55, default or default judgment 28 may be entered if a defendant “fails to plead or otherwise defend.” Fed. R. Civ. P. 55 (emphasis 2 1 added). The filing of two motions to dismiss is evidence that Defendant has defended in this action, 2 precluding entry of default or default judgment under Rule 55. 3 IV. 4 5 CONCLUSION AND RECOMMENDATION Based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s motion for default judgment, filed on March 19, 2012, be DENIED. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within TWENTY 8 (20) DAYS after being served with these findings and recommendations, any party may file written 9 objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's 10 Findings and Recommendations." Any reply to the objections shall be served and filed within ten 11 days after service of the objections. The parties are advised that failure to file objections within the 12 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 13 1153 (9th Cir. 1991). 14 15 16 IT IS SO ORDERED. Dated: 6i0kij November 28, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3
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