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Kevin E. Fields v. P. Roberts

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 4, 2012

KEVIN E. FIELDS,
PLAINTIFF,
v.
P. ROBERTS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT (Doc. 70.)

ORDER FOR CLERK TO ENTER DEFAULT AGAINST DEFENDANT JEFF NEUBARTH

Kevin E. Fields ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on April 10, 2006. (Doc. 1.) This action now proceeds with the Fifth Amended Complaint filed by Plaintiff on June 24, 2010, against Defendant Jeff Neubarth for deliberate indifference.*fn1 (Doc. 51.)

On January 4. 2012, Plaintiff filed a request for entry of default judgment against Defendant Jeff Neubarth. (Doc. 70.)

I. ENTRY OF DEFAULT AND DEFAULT JUDGMENT

Plaintiff requests default judgment against Defendant based on the court's record showing that Defendant has not filed a timely response to the complaint. 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). Rule 12 of the Federal Rules of Civil Procedure provides, "[A] defendant must serve an answer within 21 days after being served with the summons and complaint; or if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent." Fed. R. Civ. P. 12(a)(1)(A).

On March 28, 2011, the Court issued an order directing the United States Marshal to serve process on defendants in this action. (Doc. 59.) On October 3, 2011, the Marshal filed a USM-285 form, indicating that Defendant was personally served on September 23, 2011. (Doc. 65.) To date, Defendant Jeff Neubarth has not filed not filed an answer or motion in response to the complaint, as required by Rule 12.*fn2 Therefore, Plaintiff is entitled to entry of default against Defendant Jeff Neubarth.

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's request for entry of default against Defendant Jeff Neubarth is GRANTED; and

2. The Clerk is directed to enter default against Defendant Jeff Neubarth.


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