(PC) Petillo v. Jasso

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ISAIAH J. PETILLO, Case No. 1:21-cv-01401-JLT-SAB (PC)

Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT v. (ECF No. 30) REYNALDO JASSO, et al., Defendants.

Plaintiff Isaiah J. Petillo is proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion to entry of default, filed September 9, 2022. Plaintiff’s motion shall be denied. Federal Rule of Civil Procedure 55 provides, “[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, the clerk must enter the party's default.” Fed. R. Civ. P. 55(a). Before a default will be entered, the clerk must be satisfied from the request and accompanying documentation that: 1) the defendant has been served with the summons or has agreed to waive serve; 2) the time allowed by law for responding has expired; and 3) the defendant has failed to file a pleading or motion permitted by law. U.S. ex rel. Felix Haro Const., Inc. v. St. Paul Fire 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. Knight, 2019 WL 1923936, at *2 (S.D. Cal. Apr. 30, 2019) (“A default may not enter against a defendant unless the plaintiff has properly served the defendant.”). Here, Defendants filed an answer to the complaint on November 29, 2021. (ECF No. On January 3, 2022, the Court issued the discovery and scheduling order. (ECF No. 14.) Defendants filed two motions to extend the deadline to file an exhaustion motion for summary judgment which were granted, and the deadline to file such motion expired on August 29, 2022. Plaintiff seeks entry of default on the ground that Defendants did not file an exhaustion related motion for summary judgment. Under the law, Plaintiff’s request is not justified nor does Plaintiff provide legal authority as to why such a request is legally appropriate. Therefore, Plaintiff's motion must be denied. Plaintiff is advised that the Defendants may, but are not required to, file an exhaustion-related or merits-related motion for summary judgment, and the current deadline to file a dispositive motion for summary judgment expires on November 14, 2022. (ECF No. 14.) Accordingly, Plaintiff's motion to entry of default is denied. IT IS SO ORDERED. FA. ee Dated: _ September 12, 2022 UNITED STATES MAGISTRATE JUDGE