Cranford v. Medina

Filing 24

ORDER Denying Plaintiff's Motion For Entry Of Default And Default Judgment (Doc. 23 ), signed by Magistrate Judge Gary S. Austin on 6/27/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARCHIE CRANFORD,

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1:13-cv-00210-GSA-PC

Plaintiff,

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ORDER DENYING PLAINTIFF=S
MOTION FOR ENTRY OF DEFAULT AND
DEFAULT JUDGMENT
(Doc. 23.)

vs.

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RENEE MEDINA, et al.,

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Defendants.

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I.

BACKGROUND
Archie Cranford (APlaintiff@) is a civil detainee proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983.

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commencing this action on February 8, 2013. (Doc. 1.)

Plaintiff filed the Complaint

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On February 21, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 5.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On September 20, 2013, Plaintiff filed a motion for entry of default and default
judgment against the defendants to this action. (Doc. 23.)
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II.

ENTRY OF DEFAULT AND DEFAULT JUDGMENT

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.

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55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must serve an

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answer within 21 days after being served with the summons and complaint; or if it has timely

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waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@ Fed.

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R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by

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signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or

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otherwise defend an action after being properly served with a summons and complaint, a

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default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil

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Procedure.

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Plaintiff requests entry of default and default judgment against the defendants to this

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action, for failure to plead or otherwise defend as provided by the Federal Rules of Civil

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Procedure.

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Third Amended Complaint, “as appears from the proof of service on file.” (Motion at 2:8-9.)

Plaintiff asserts that the defendants have each been served with a copy of the

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Discussion

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Court records do not reflect Plaintiff’s assertion that the defendants have been served

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with copies of the Third Amended Complaint. To date, the court has not received notice that

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any of the defendants have been served with process or waived service. (Court Record.) Under

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Rule 12, defendants are not required to respond to the complaint until after they have been

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served or waived service. Thus, at this stage of the proceedings, defendants in this action are

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not yet required to respond to the complaint. Plaintiff has not shown that defendants were

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properly served with process and failed to plead or otherwise defend pursuant to Rule 55(a).

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Therefore, Plaintiff’s motion for entry of default and default judgment must be denied.

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Presently, the Third Amended Complaint, filed on June 11, 2014, awaits the court’s

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requisite screening under 28 U.S.C. § 1915A. (Doc. 22.) The court will not direct the United

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States Marshal (“Marshal”) to serve process in this action until after the court has screened the
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complaint under 28 U.S.C. § 1915A and found that Plaintiff states cognizable claims against

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defendants. Plaintiff will receive notice from the court when it is time for service.

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III.

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

default and default judgment against the defendants, filed on June 25, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

June 27, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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