Washington v. Adams et al

Filing 28

ORDER DENYING Plaintiff's 27 Motion for Entry of Default signed by Magistrate Judge Sheila K. Oberto on 7/25/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CHRISTOPHER N. WASHINGTON,

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CASE NO. 1:09-cv-01666-SKO PC

Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
FOR ENTRY OF DEFAULT

v.
(Doc. 27)

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DERRAL G. ADAMS,

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Defendant.
/

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Plaintiff Christopher N. Washington, a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 21, 2009. On July

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21, 2011, Plaintiff filed a motion seeking the entry of default against Defendant Adams. Fed. R. Civ.

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P. 55(a).

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The United States Marshal was directed to initiate service of process on June 14, 2011. Court

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Doc. 24, Service Order. There is no evidence in the record that service has been effected, triggering

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Defendant’s legal obligation to respond to Plaintiff’s amended complaint. Fed. R. Civ. P. 4(d), (e);

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Fed. R. Civ. P. 55(a). Indeed, the Court notes that Defendant has an opportunity to waive service

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of the summons and amended complaint, and should he elect to waive service, he has sixty (60) days

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from the date set forth in the waiver to file that response. Fed. R. Civ. P. 4(d); Service Order.

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Plaintiff’s motion is clearly premature – the absence of any documentary evidence in support of his

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motion notwithstanding. Until and unless Plaintiff has evidence that Defendant is in default, he

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should not seek entry of default.

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Accordingly, Plaintiff’s motion for entry of default is HEREBY DENIED. Fed. R. Civ. P.
55(a).

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IT IS SO ORDERED.

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Dated:
ie14hj

July 25, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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