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Kevin Bartholomew v. D.K. Sisto

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


December 22, 2011

KEVIN BARTHOLOMEW,
PLAINTIFF,
v.
D.K. SISTO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for default judgment against defendant Easterling (Doc. 59). Defendant Easterling has filed an opposition.

Plaintiff moves for default against defendant Easterling based on his interpretation of the defendants' motion for summary judgment. Plaintiff indicates a default is appropriate against defendant Easterling because defendant Easterling was not one of the moving defendants.

First, plaintiff is mistaken. Defendant Easterling is one of the defendants who have moved for summary judgment. Second, even if defendant Easterling was not a moving defendant, default is not appropriate as defendant Easterling timely appeared in this action by way of answering the complaint, in August 2010, almost a year before plaintiff filed his motion for default. A defendant is not in "default" unless he "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Fed. R. Civ. Proc. 55(a). Defendant Easterling has not failed to plead or otherwise defend against this action. Instead, defendant Easterling timely filed an answer and has moved for summary judgment against plaintiff. Therefore, a default against defendant Easterling is not appropriate.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for default (Doc. 59) is denied.

20111222

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