Valencia v. Gibson et al

Filing 41

ORDER denying 39 Request for Entry of Default filed by Abel Valencia signed by Magistrate Judge Stanley A. Boone on 9/29/2014. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ABEL VALENCIA,

12

Plaintiff,

13
14

v.
CONNIE GIPSON, et al.,

15

Defendants.

16

Defendants J.C. Garcia, S. Johnson, A. Mayo, D.J. Ruiz, and J.C. Smith.1
On June 20, 2014, Defendants S. Johnson and J.C. Smith waived service of the summons in
this action. (ECF No. 28.)
On July 22, 2014, Defendants J.C. Garcia, D.J. Ruiz, and A. Mayo waived service of the

23
24

[ECF No. 39]

On May 20, 2014, the Court directed the United States Marshal to serve the complaint on

21
22

ORDER DENYING PLAINTIFF’S MOTION
FOR ENTRY OF DEFAULT

pursuant to 42 U.S.C. § 1983.

19
20

Case No.: 1:12-cv-01446-AWI-SAB (PC)

Plaintiff Abel Valencia is appearing pro se and in forma pauperis in this civil rights action

17
18

)
)
)
)
)
)
)
)
)
)

summons in this action. (ECF No. 32.)

25
26
1

27
28

Although the Court found that Plaintiff stated a cognizable due process claim against an unknown IGI officer, the Court
advised Plaintiff that it cannot order service by the United States Marshal on a doe defendant. If an when the identity is
ascertained by Plaintiff, he must file a motion to amend the complaint and identify the Doe defendant so service may be
effectuated by the United States Marshal. (ECF No. 23.)

1

On August 26, 2014, Defendant filed a request to extend the time by twenty-days to file a

1
2

responsive pleading, which was granted by the Court on August 28, 2014. (ECF Nos. 33, 34.)

3

On September 15, 2014, Defendants filed an answer to the complaint. On September 16, 2014,

4

Defendants filed an amended answer to the complaint, omitting the erroneous reference to “Defendant

5

Diaz” in the original answer.
Rule 55(a) of the Federal Rules of Civil Procedure requires that the clerk of the Court enter

6
7

default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or

8

otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a).
Because Defendants have filed a timely answer to the complaint, Plaintiff request for entry of

9
10

default must be DENIED.

11
12

IT IS SO ORDERED.

13

Dated:

14

September 29, 2014
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2