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Elbert Lee Vaught, Iv v. D. Clark

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 18, 2011

ELBERT LEE VAUGHT, IV PLAINTIFF,
v.
D. CLARK, ET AL. DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action under 42 U.S.C. § 1983. He has moved for a default judgment against defendant Davey, alleging that Davey has failed to respond to the complaint. In fact, Davey has responded to the complaint by joining the motion to dismiss filed September 10, 2010. See Docket No. 22. Under Federal Rule of Civil Procedure 12(b), a defendant may move to dismiss all claims against him in lieu of filing an answer. There is no basis for entering default against defendant Davey. Therefore the motion for default judgment shall be dismissed. The court will render a decision on the motion to dismiss forthwith.

Accordingly, IT IS HEREBY ORDERED that:

1. The motion for default judgment (Docket No. 25) is denied.

2. The Clerk of Court is directed to assign a district judge to this case.

20111118

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