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Clarence Howard v. Gradtillo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 7, 2011

CLARENCE HOWARD, PLAINTIFF,
v.
GRADTILLO, ET AL., DEFENDANTS.

ORDER DENYING MOTION FOR DEFAULT JUDGMENT (Docs. 34, 35)

Plaintiff Clarence Howard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 12, 2010, Plaintiff filed a motion for default judgment. (Doc. 34). Plaintiff's motion is confusing since Plaintiff asserts that default judgment was entered on August 5, 2010. However, the Court construes Plaintiff's motion to read that Plaintiff believes default judgment is warranted because under Rule 4 of the Federal Rules of Civil Procedure, Defendants' responsive pleading was originally due on August 5, 2010 and Defendants did not file responsive pleading by that original deadline.

Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. See Fed. R. Civ. P. 55(a). However, on July 29, 2010, the Court granted Defendants' request for a forty-five (45) day extension which made the previous deadline of August 5, 2010, inapplicable. On September 1, 2010, Defendants filed responsive pleading within the time allowed by the extension provided by the Court's order made on July 29, 2010.

Therefore, default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure is not warranted and Plaintiff's motion for default judgment is DENIED. (Doc. 34).

IT IS SO ORDERED.

0jh02o

UNITED STATES MAGISTRATE JUDGE

20110107

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