Opinion
21-CV-363-MMA(WVG)
12-20-2021
DAVID W. FAUNCE, Plaintiff, v. J. MARTINEZ, et al., Defendants.
ORDER DENYING REQUEST TO ENTER DEFAULT AGAINST DEFENDANT “H. TERRELL”
[DOC. NO. 28.]
HON. WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE.
Plaintiff seeks entry of default against defendant “H. Terrell.” However, “H. Terrell” has not been properly served, the request is DENIED.
On July 15, 2021, the United States Marshal's Service returned the summons upon H. Terrell unexecuted after unsuccessfully attempting to serve the summons and Complaint. (Doc. No. 7.) The comments to the filing indicated that Terrell was no longer employed by the CDCR, he or she did not respond to requests for contacts, and his or her current contact information was not known. After Plaintiff told the Court that he had seen Terrell working at Donovan prison, the Court directed defense counsel to investigate and file a status report. (Doc. No. 25.) Accordingly, on December 2, 2021, counsel filed the following status report: “After diligent and thorough inquiry to the California Department of Corrections and Rehabilitation Department (CDCR) of Human Resources Division it was determined that CDCR has no record of a correctional officer “H. Terrel” ever being employed by the Department.” (Doc. No. 26.)
Whether it's because Terrell no longer works for the CDCR or never worked there to begin with, the fact remains that he or she has not been served. As a result, entry of default against him or her is not proper. See Arellano v. Cty. of San Diego, No. 14-CV-2404-GPC-KSC, 2020 U.S. Dist. LEXIS 152231, at *57 (S.D. Cal. Aug. 21, 2020) (“Plaintiff has failed to properly serve [several named defendants], and accordingly, entering default is not proper as to any of these Defendants.”)
IT IS SO ORDERED.