Arline v. Clark et al

Filing 41

ORDER Denying 40 Plaintiff's Request for Entry of Default as Premature, signed by Magistrate Judge Stanley A. Boone on 3/4/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH DUANE ARLINE, JR.,

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Plaintiff,
v.
KEN CLARK, et al.,
Defendants.

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Case No.: 1:11-cv-00420-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S REQUEST
FOR ENTRY OF DEFAULT AS PREMATURE
[ECF No. 40]

Plaintiff Keith Duane Arline, Jr. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendants D. Goss, T. Wan, and Kathleen Allison for
deprivation of outdoor exercise in violation of the Eighth Amendment.
On March 3, 2015, Plaintiff filed a request for entry of default. (ECF No. 40.) Plaintiff

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contends that Defendants were served by the United States marshal on January 30, 2015, and have

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failed to file a response to the complaint. Plaintiff’s request for entry of default must be denied.

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Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil Procedure provides that a defendant that has

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timely waived service under Rule 4(d) must respond “within 60 days after the request for a waiver was

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sent, or within 90 days after it was sent to the defendant outside any judicial district of the United

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States.” Fed. R. Civ. P. 12(a)(1)(A)(ii).

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Rule 55(a) of the Federal Rules of Civil Procedure requires the Clerk of the Court to enter

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default “when a party against whom a judgment for affirmative relief is sought has failed to plead or

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otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a).
In this instance, the requests by the United States marshal for Defendants to waive service were

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sent on January 8, 2015, and filed with the Court on February 4, 2015. (ECF No. 39.) Therefore,

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pursuant to their waivers of service, Defendants are not required to answer the complaint until sixty

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days thereafter, i.e. March 9, 2015. Accordingly, Plaintiff’s request for entry of default is DENIED as

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premature.

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IT IS SO ORDERED.

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Dated:

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March 4, 2015
UNITED STATES MAGISTRATE JUDGE

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