(PC) Cuellar v. Fresno County Sheriff

Opinion

TRAVIS JUSTIN CUELLAR, ) Case No.: 1:20-cv-00707-SAB (PC) ) Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FRESNO COUNTY SHERIFF, et al., ) ) FINDINGS AND RECOMMENDATION Defendants. ) RECOMMENDING PLAINTIFF’S REQUEST ) FOR ENTRY OF DEFAULT BE GRANTED ) ) (ECF No. 14) )

Plaintiff Travis Justin Cuellar is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s request for entry of default, filed December 10, 2020. I. Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the Court enter default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise . . . .” Fed. R. Civ. P. 55(a). A party seeking a default judgment must first receive an entry of default from the clerk of court. Id. (citing Fed. R. Civ. P. 55(a)). Second, the party must move the court for default judgment pursuant to Rule 55(b). Id.; Lack v. Rustick, No. CV 06-2204-PHX-MHM, 2008 WL 268712, at *1 (D. Ariz. Jan. 28, 2008). This action proceeds against Defendants Bruton and Cisneros for excessive force in violation of the Fourteenth Amendment. Because Plaintiff is proceeding in forma pauperis, the Court ordered service of process by the United States Marshal on July 21, 2020. (ECF No. 10.) Here, on November 5, 2020, the Court received two USM–285 forms from the Marshal indicating that personal service was effected upon Defendants Bruton and Cisneros which gave the two Defendants twenty-one days, i.e. November 25, 2020, in which to file a response to the complaint. Fed. R. Civ. P. 12(a)(1)(A)(i). (ECF No. 12.) To date, neither Defendant Bruton or Cisneros has filed a response to the complaint and the time to do so has passed. (Id.) Accordingly, entry of default is warranted. II. Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court be directed to randomly assign a Fresno District Judge to this action. Further, it is HEREBY RECOMMENDED that: 1. The Clerk of Court be directed to enter default against Defendants Bruton and Cisneros; 2. The Clerk of Court shall serve a copy of this order on Defendants Bruton and Cisneros at the address of service of the summons and complaint to be maintained confidential and not placed on the docket; and 3. The Clerk of Court shall also serve a copy of this order on the Litigation Coordinator at the Fresno County Main Jail, 1225 M. Street, Fresno, CA, 93721. This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being served with this Findings and Recommendation, the parties may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Al (ee Dated: _ December 11, 2020 OF UNITED STATES MAGISTRATE JUDGE