UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 31, 2012
DEBBIE MANJUANO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST DEFENDANT MANDUJANO AS MOOT, WITH PREJUDICE (Doc. 215.)
Robert Benyamini ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on the Third Amended Complaint, filed on May 23, 2008, against defendants Mandujano,*fn1 Wilcox, Wilkerson, and O'Grady ("Defendants"), on Plaintiff's Eighth Amendment claims for adverse conditions of confinement (Docs. 1, 35.) On October 29, 2012, Plaintiff filed a motion for entry of default and default judgment against defendant Mandujano. (Doc. 215.)
II. PLAINTIFF'S MOTION
Plaintiff requests entry of default and default judgment, pursuant to Federal Rule of Civil Procedure 55, against defendant Debbie Mandujano, based on Mandujano's failure to answer or otherwise defend in this action.
Plaintiff's motion is moot because this issue was conclusively decided in this action by prior court orders. Plaintiff filed four prior motions requesting entry of default or default judgment against defendant Mandujano, all which were denied by the Court for lack of evidence or meritorious argument that defendant Mandujano failed to answer the complaint in a timely manner or otherwise failed to defend in this action. (Docs. 66, 67, 83, 120, 169, 177, 194, 198.) The Court has previously found that defendant Mandujano's answer to the complaint, filed on December 16, 2010, is conclusive evidence that defendant Mandujano has appeared in this action and is actively defending against Plaintiff's claims, resolving any issues of default under Rule 55 against this defendant in this action. (Docs. 120, 177, 198.) Therefore, Plaintiff's motion, filed on October 29, 2012, shall be denied as moot, with prejudice.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's request for entry of default and default judgment against defendant Debbie Mandujano, filed on October 29, 2012, is DENIED as moot, with prejudice; and
2. The Court shall not consider any further motions for entry of default or default judgment against defendant Mandujano in this action, or motions for reconsideration of prior orders denying such motions.
IT IS SO ORDERED.