Opinion
2:18-cv-2831 WBS AC P
08-04-2021
KWESI MUHAMMAD, Plaintiff, v. R. BURTON, et al., Defendants.
ORDER
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se and in forma pauperis in this civil rights action, has filed two motions for default judgment. The first, ECF No. 29, seeks default judgment against Robert Burton. The second, ECF No. 33, seeks default judgment against Landon Bird.
As to the first-filed motion, this case is not proceeding against Robert Burton. Burton is not named in the operative Second Amended Complaint, ECF No. 13, and plaintiff was denied leave to proceed on a proposed Third Amended Complaint, see ECF Nos. 20 (Findings and Recommendations), 24 (order adopting recommendation). This case proceeds against DVI Warden Landon Bird only. ECF No. 15. Robert Burton was never served. Accordingly, the Clerk of Court declined to enter default against Burton when such entry was requested by plaintiff. ECF No. 28. Without entry of default, there can be no default judgment. See Rule 55, Fed.R.Civ.P. Neither entry of default nor default judgment is available against a non-party.
As to the second motion, ECF No. 33, sole defendant Bird was granted an extension of time to answer the Second Amended Complaint (ECF No. 30) and he did so within the time provided by the court (ECF No. 31). There has been no default.
On July 20, 2021, this case was stayed and referred to the Post-Screening ADR Project. No. motions should be filed during the pendency of the stay.
For these reasons, plaintiffs motions for default judgment, ECF Nos. 29 and 33, are HEREBY DENIED.