(PC)Hernandez v. Constable

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CESAR N. HERNANDEZ, No. 2:19-cv-02195 MCE DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS A. CONSTABLE, et al., 15 Defendants.

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 document filed March 5, 2021, plaintiff sought a default judgment based on defendants’ belated request for an extension of time to respond to discovery. (ECF No. 51.) On March 9, the Clerk of the Court declined to enter a default. (ECF No. 52.) In his current motion, plaintiff reiterates the argument made in his March 5 request. He further contends the Clerk of the Court does not have the authority to decline to enter a default judgment. Plaintiff cites Federal Rule of Civil 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 when a defendant has not appeared in the action. By filing an answer, defendants appeared in this action. The court cannot enter default once a defendant has filed its responsive pleading. See 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 | (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 | 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 || conspiracies to deprive a party or other participant in a case of their civil rights. Plaintiff appears | to allege that by declining to enter a default, the Clerk of the Court was engaging in some sort of || conspiracy. Because, as stated above, the Clerk had authority to decline to enter default, section | 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 | motion for reconsideration should be denied.

12 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion for | 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 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after | being served with these findings and recommendations, either party may file written objections | with the court. The document should be captioned “Objections to Magistrate Judge's Findings | and Recommendations.” The parties are advised that failure to file objections within the specified | time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 | F.2d 1153 (9th Cir. 1991).

21 | Dated: May 27, 2021 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE | DLB:9/DB Prisoner Inbox/Civil Rights/R/hern2195 denial of default