Foster v. Bhambi, et al.

Filing 19

ORDER DENYING Plaintiff's 15 16 17 Requests for Entry of Default signed by Magistrate Judge Gary S. Austin on 5/31/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALLEN FOSTER,

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Plaintiff,

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1:10-cv-01288-AWI-GSA-PC
ORDER DENYING PLAINTIFF’S
REQUESTS FOR ENTRY OF DEFAULT
(Docs. 15, 17; also resolves Doc. 16.))

v.
DR. BHAMBI, M.D., et al.,

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Defendants.
/

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I.

BACKGROUND

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Allen Foster (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action filed

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 20,

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2010. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an

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order on November 30, 2011, dismissing the Complaint for failure to state a claim, with leave to

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amend. (Doc. 10.) On January 24, 2012, Plaintiff filed the First Amended Complaint, which awaits

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the requisite screening by the Court. (Doc. 14.)

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On March 29, 2012 and April 24, 2012, Plaintiff filed requests for entry of default against

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the defendants. (Docs. 15, 17.)

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II.

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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Plaintiff requests entry of default against all of the defendants. Plaintiff maintains that

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because he filed the First Amended Complaint on January 24, 2012, the Court’s records “should

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show that the defendants were served with a copy of a summons, and copies of the [First Amended

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Complaint] on or after 1/24/12.” (Declaration of Plaintiff, Doc. 15 at 1:17-21.) Plaintiff argues that

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default should be entered because more than twenty days have elapsed since the date defendants were

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served, and defendants have failed to answer or otherwise defend against the complaint.

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Plaintiff’s motion is premature because defendants have not been served in this action. The

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Court will, sua sponte, direct the United States Marshal to serve the complaint only after the court

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has screened the complaint as required by 28 U.S.C. § 1915A and determined that it contains

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cognizable claims for relief against the named defendants. Thus, the time limits set forth in Rule 4

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are inapplicable until such time as the Court determines the complaint states cognizable claims for

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relief. As the Court has yet to screen Plaintiff’s First Amended Complaint, Plaintiff’s request for

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entry of default is premature and shall be denied as such..

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III.

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

default, filed on March 29, 2012 and April 24, 2012, are DENIED as premature.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 31, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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