Butler v. Wern, et al.

Filing 20

ORDER Denying Plaintiff's Motion for Entry of Default re 19 , signed by Magistrate Judge Stanley A. Boone on 08/01/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARQUES BUTLER,

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Plaintiff,

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v.

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R. WERN, et al.,

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Defendants.

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Case No.: 1:12-cv--1538-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR ENTRY OF DEFAULT
[ECF No. 19]

Plaintiff Marques Butler is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.

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Now pending before the Court is Plaintiff’s motion for entry of default as to Defendant Wern.

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This action is proceeding on Plaintiff’s claim of excessive force against Defendants Wern,

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Stratton, and Montano, and against Defendant Wern for deliberate indifference to a serious medical

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need.

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On May 7, 2014, Defendants Montano and Stratton filed an answer to the complaint.

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The United States Marshal was directed to initiate service on January 16, 2014, and the

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Marshal is still in the process of attempting to effectuate service on Defendant Wern. Thus, there is no

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evidence in the record that service has been effected, triggering Defendant’s legal obligation to

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respond to Plaintiff’s complaint. Fed. R. Civ. P. 4(d), (e); Fed. R. Civ. P. 55(a). Indeed, the Court

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notes that Defendant has an opportunity to waive service of the summons and amended complaint, and

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should he elect to waive service, he has sixty days from the date set forth in the waiver to file a

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response. Fed R. Civ. P. 4(d). Plaintiff’s motion for entry of default is premature and therefore must

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be DENIED.

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IT IS SO ORDERED.

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Dated:

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August 1, 2014
UNITED STATES MAGISTRATE JUDGE

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