Opinion
1:23-cv-00054-HBK (PC)
06-08-2023
DURRELL ANTHONY PUCKETT, Plaintiff, v. J. BARRIOS, FNU HERNANDEZ, FNU WHITE, and FNU GUTIERREZ, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT (DOC. NO. 30)
HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff Durrell Anthony Puckett is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought under 42 U.S.C. § 1983 as screened under 28 U.S.C. § 1915A. (Doc. Nos. 1, 17). On June 3, 2023, Plaintiff filed a motion for entry of default judgment. (Doc. No. 30). Plaintiff claims that Defendants FNU Hernandez, FNU White, and FNU Gutierrez have failed to timely respond to his Complaint, and he seeks a default judgment and punitive damages. (Id. at1).
Entry of default by the Clerk of Court is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed.R.Civ.P. 55(a). The entry of default by the Clerk is a prerequisite for an entry of judgment upon that default. Fed.R.Civ.P. 55(b). Procedurally, no default was entered by the Clerk in this case. See docket. Thus, no default judgment may be entered. Further, Defendants FNU Hernandez, FNU White, and FNU Gutierrez have not failed to timely file a response to Plaintiff's Complaint. Waiver of Service of Summons were returned executed on Defendants FNU Hernandez and FNU White on May 3, 2023, and their responses to the Complaint are not due until July 3, 2023. See Doc. Nos. 26, 27, 29. Further, on May 5, 2023, the United States Marshal returned the summons on Defendant Gutierrez as unexecuted. (Doc. No. 25). Thus, the Clerk properly withheld entry of default. Fed.R.Civ.P. 55(a).
Accordingly, it is ORDERED:
Plaintiff's motion for entry of default (Doc. No. 30) is DENIED.