(PC)Hernandez v. Constable ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CESAR N. HERNANDEZ, No. 2:19-cv-02195 MCE DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 A. CONSTABLE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding with a civil rights action under 42 U.S.C. § 1983. 18 Before the court is plaintiff’s motion for reconsideration of the denial of a default judgment. In a 19 document filed March 5, 2021, plaintiff sought a default judgment based on defendants’ belated 20 request for an extension of time to respond to discovery. (ECF No. 51.) On March 9, the Clerk 21 of the Court declined to enter a default. (ECF No. 52.) In his current motion, plaintiff reiterates 22 the argument made in his March 5 request. He further contends the Clerk of the Court does not 23 have the authority to decline to enter a default judgment. Plaintiff cites Federal Rule of Civil 24 Procedure 55 and 42 U.S.C . §1985(2) in support of his arguments. (ECF No. 61.) 25 Pursuant to Rule 55, the Clerk of the Court has authority to enter a default judgment only 26 when a defendant has not appeared in the action. By filing an answer, defendants appeared in this 27 action. The court cannot enter default once a defendant has filed its responsive pleading. See 28 Horton v. Sierra Conservation Ctr., No. 1:09–cv–01441 AWI SMS, 2010 WL 743849, at *1 (E.D. 1 | Cal. Mar. 1, 2010) (citing Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 2 | (11th Cir. 2002); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 3 | 685, 689 (9th Cir. 1988) (no default can be entered if defendant filed a response indicating intent 4 | to defend the action)), rep. and reco. adopted, 2010 WL 1267743 (E.D. Cal. Mar. 31, 2010). 5 The other legal basis cited by plaintiff is 42 U.S.C. § 1985(2). That section addresses 6 || conspiracies to deprive a party or other participant in a case of their civil rights. Plaintiff appears 7 | to allege that by declining to enter a default, the Clerk of the Court was engaging in some sort of 8 || conspiracy. Because, as stated above, the Clerk had authority to decline to enter default, section 9 | 1985(2) provides no grounds for plaintiff's contentions. 10 For these reasons, there is no basis for granting a default judgment here and plaintiffs 11 | motion for reconsideration should be denied. 12 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion for 13 | reconsideration of the denial of a default judgment (ECF No. 61) should be denied. 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 16 | being served with these findings and recommendations, either party may file written objections 17 | with the court. The document should be captioned “Objections to Magistrate Judge's Findings 18 | and Recommendations.” The parties are advised that failure to file objections within the specified 19 | time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 20 | F.2d 1153 (9th Cir. 1991). 21 | Dated: May 27, 2021 23 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 | DLB:9/DB Prisoner Inbox/Civil Rights/R/hern2195 denial of default 26 27 28