(PC) Rios v. Necochea

Opinion

1 2 3 4 5 6 7 10 11 JOSE MIGUEL RIOS, Case No. 1:24-cv-0480 JLT SAB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 13 v. DEFENDANT’S MOTION TO SET ASIDE ENTRY OF DEFAULT (Docs. 25, 26) 15 Defendant.

16 17 Jose Miguel Rios seeks to hold Correctional Officer Necochea liable for retaliation in 18 violation of the First Amendment, which he claims occurred while he was housed at the Fresno 19 County Jail. (Doc. 1; Doc. 14.) After Defendant failed to respond to the complaint, the Court 20 granted Plaintiff’s request to enter default. (Docs. 22, 23, 24.) Defendant seeks to aside the 21 default pursuant to Rule 55(c) of the Federal Rules of Civil Procedure. (Doc. 25.) Plaintiff did 22 not oppose the motion. 23 The magistrate judge found Defendant “credibility explains that he was unfamiliar with 24 the legal process which mistakenly lead him to not take timely action in response service of 25 process by the United States Marshals.” (Doc. 26 at 3.) In addition, the magistrate judge 26 observed that “Defendant believed he had done all that was required of him when he returned the 27 signed waiver of service, and it was not until he received a call from the County attorney that he 28 had failed to timely respond to the complaint.” (Id.) The magistrate judge observed that 1 | Defendant also “believes he has meritorious defenses to Plaintiffs claims of retaliation.” (/d.) 2 | Finally, the magistrate judge found “setting aside the default will not hinder Plaintiffs ability to 3 | pursue his claim, and any minimal delay has not impacted the evidence or impacted any potential 4 | discovery in this case.” (/d. at 3-4.) Based upon the information provided, the magistrate judge found 5 || good cause exists to set aside the entry of default. (/d. at 4.) Therefore, the magistrate judge 6 || recommended the Court grant the motion and give Defendant thirty days to file an answer to the 7 || operative complaint. (/d.) 8 The Court served the Findings and Recommendations upon the parties and notified them 9 | that any objections must be filed within 14 days of the date of service. (Doc. 26 at 4.) The Court 10 | also informed Plaintiff the “failure to file objections within the specified time may result in the 11 | waiver of rights on appeal.” (/d., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).) 12 | Plaintiff did not file objections and the time to do so has passed. 13 According to 28 U.S.C. § 636(b)(1), the Court performed a de novo review of this case. 14 | Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 15 || are supported by the record and by proper analysis. Thus, the Court ORDERS: 16 1. The Findings and Recommendations filed on January 27, 2025 (Doc. 26) are 17 ADOPTED in full. 18 2. Defendant’s motion to set aside the entry of default (Doc. 25) is GRANTED. 19 3. Defendant SHALL file a responsive pleading to the operative complaint within 20 thirty days of the date of service of this order. 21 4. The matter is referred to the magistrate judge for further proceedings. 22 Dated: _ February 21, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 25 26 27 28