(PC) Johnson v. Nelson

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL WAYNE JOHNSON, No. 2:20-cv-0967 WBS DB P 12 Plaintiff, 13 v. ORDER AMY NELSON, 15 Defendant.

17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983. Plaintiff contends that defendant was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Presently before the court is plaintiff’s request for entry of default. (ECF No. 34.)

21 Plaintiff claims the court should enter default because more than thirty days have passed since defendant was served with a copy of the complaint and defendant has not filed an answer.

23 (ECF No. 34.)

24 Pursuant to Federal Rule of Civil Procedure Rule 55, the Clerk of the Court has authority to enter a default judgment only where a defendant has not appeared in the action. Defendant has appeared in this action and filed an answer on June 23, 2021. (ECF No. 23.) 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. Cal. Mar. 1, || 2020) (citing Mitchellv. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 (11th Cir. || 2002); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 689 | (th Cir. 1988) (no default can be entered if defendant filed a response indicating intent to defend || theaction), rep. and reco. adopted, 2010 WL 1267743 (E.D. Cal. Mar. 31, 2010). Accordingly, | thecourt will deny plaintiff's request. As a one-time courtesy the court will send plaintiffa copy || of defendant’s answer.

7 For the foregoing reasons, IT IS HEREBY ORDERED that: 8 1. Plaintiff's request for entry of default (ECF No. 34) is denied; 9 2. The Clerk of the Court is directed to send plaintiffa copy of defendant’s answer (ECF | No. 23) along with this order.

11 || Dated: November 8, 2021 15 BORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 DBIDB Prisoner Inbox/Civil.Rights/R/john096 7.default