Kindred v. California Department of Mental Health et al

Filing 56

ORDER DENYING Plaintiff's Request for Entry of Default Against Defendant Linda Fields 52 , signed by Magistrate Judge Gary S. Austin on 10/3/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD S. KINDRED,

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Plaintiff,

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1:08-cv-01321-AWI-GSA-PC
ORDER DENYING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT
AGAINST DEFENDANT LINDA FIELDS
(Doc. 52.)

v.
CALIFORNIA DEPARTMENT OF
MENTAL HEALTH, et al.,

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Defendants.
/

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I.

BACKGROUND

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Richard S. Kindred (“Plaintiff”), a civil detainee presently detained at Coalinga State

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Hospital (“CSH”), is proceeding pro se and in forma pauperis in this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2008.

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(Doc. 1.) This action now proceeds on Plaintiff’s original Complaint against defendants Barbara

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Devine1 and Linda Fields, for the violation of Plaintiff’s rights to freely exercise his religion under

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the First Amendment.2 Id.

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Plaintiff spelled this defendant’s name “Barbra DeVine” in the Complaint. (Cmpl., Doc. 1 at 4.)
Defendants have corrected the spelling to “Barbara Devine.” (Doc. 17 at 1.)
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On September 12, 2011, the Court dismissed all remaining claims and defendants from this action, based
on Plaintiff’s failure to state a claim. (Doc. 30.)

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On September 10, 2012, Plaintiff filed a request for entry of default against defendant Linda

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Fields. (Doc. 52.)

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II.

REQUEST FOR ENTRY OF DEFAULT

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Entry of default is appropriate as to any party against whom a judgment for affirmative relief

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is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil

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Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule

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12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an answer within

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21 days after being served with the summons and complaint; or if it has timely waived service under

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Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. Civ. P. 12(a)(1)(A).

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Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver

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of service. Fed. R. Civ. P. 4(d).

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Before a default will be entered, the court clerk must be satisfied from Plaintiff’s request and

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accompanying documentation that (1) defendant has been served with the summons (or has agreed

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to waive service); (2) the time allowed by law for responding has expired; (3) defendant has failed

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to file a pleading or motion permitted by law; and (4) defendant is neither a minor nor an

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incompetent person. Fed. R. Civ. P. 55(b)(1); see First American Bank, N.A. v. United Equity Corp.

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89 F.R.D. 81, 86 (D.C.D.C. 1981).

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Plaintiff argues that default should be entered against defendant Linda Fields because

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“defendant Fields was served according to the United States Marshals via mail service on October

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5, 2011, and as of March 22, 2012, the United States Marshals have not received waiver of service

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returned.” Motion, Doc. 52 at 2.

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Plaintiff relies on the Marshal’s remarks written at the bottom of the USM-285 form filed

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on April 19, 2012: “10/5/11 mailed. 3/22/12 waiver not ret’d.” (Doc. 41.) However, this form does

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not show that defendant Fields was served with the summons or agreed to waive service. In fact,

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the Marshal checked the box on the form indicating, “I hereby certify and return that I am unable to

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locate the individual . . . named above” and made additional remarks stating, “[L]itigation

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coordinator at CSH stated Mrs. Fields hasn’t worked at the hospital in about 3 years and doesn’t

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know where she is currently working.” Id. (emphasis added.)
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Moreover, on April 24, 2012, the Court entered an order directing the Marshal to make

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another attempt to serve defendant Fields, using the assistance of the California Department of

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Mental Health. (Doc. 43.) To date, no return of service has been received by the Court pursuant to

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the Court’s order, and defendant Fields has not appeared in this action. Thus, the Court has no

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evidence that defendant Linda Fields has been served or agreed to waive service and therefore,

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Plaintiff’s request for entry of default must be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for entry of

default against defendant Linda Fields, filed on September 10, 2012, is DENIED.

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IT IS SO ORDERED.
Dated:
6i0kij

October 3, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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