(PC) Petillo v. Jasso ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ISAIAH J. PETILLO, Case No. 1:21-cv-01401-JLT-SAB (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT 12 v. (ECF No. 30) 13 REYNALDO JASSO, et al., 14 Defendants. 15 16 Plaintiff Isaiah J. Petillo is proceeding pro se in this civil rights action filed pursuant to 42 17 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion to entry of default, filed September 9, 19 2022. Plaintiff’s motion shall be denied. 20 Federal Rule of Civil Procedure 55 provides, “[w]hen a party against whom a judgment 21 for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 22 by affidavit or otherwise, the clerk must enter the party's default.” Fed. R. Civ. P. 55(a). Before 23 a default will be entered, the clerk must be satisfied from the request and accompanying 24 documentation that: 1) the defendant has been served with the summons or has agreed to waive 25 serve; 2) the time allowed by law for responding has expired; and 3) the defendant has failed to 26 file a pleading or motion permitted by law. U.S. ex rel. Felix Haro Const., Inc. v. St. Paul Fire 27 and Marine Ins. Co., 2009 WL 1770156, at *3 (E.D. Cal. June 23, 2009) (citing Hawaii Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 512 (9th Cir. 1986)); see also Chambers v. 1 | Knight, 2019 WL 1923936, at *2 (S.D. Cal. Apr. 30, 2019) (“A default may not enter against a 2 | defendant unless the plaintiff has properly served the defendant.”). 3 Here, Defendants filed an answer to the complaint on November 29, 2021. (ECF No. 4 On January 3, 2022, the Court issued the discovery and scheduling order. (ECF No. 14.) 5 | Defendants filed two motions to extend the deadline to file an exhaustion motion for summary 6 | judgment which were granted, and the deadline to file such motion expired on August 29, 2022. 7 | Plaintiff seeks entry of default on the ground that Defendants did not file an exhaustion related 8 | motion for summary judgment. Under the law, Plaintiff’s request is not justified nor does 9 | Plaintiff provide legal authority as to why such a request is legally appropriate. Therefore, 10 | Plaintiff's motion must be denied. Plaintiff is advised that the Defendants may, but are not 11 | required to, file an exhaustion-related or merits-related motion for summary judgment, and the 12 | current deadline to file a dispositive motion for summary judgment expires on November 14, 13 | 2022. (ECF No. 14.) Accordingly, Plaintiff's motion to entry of default is denied. 14 15 IT IS SO ORDERED. FA. ee 16 | Dated: _ September 12, 2022 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28