Anderson v. Kimbrell, et al.

Filing 29

FINDINGS and RECOMMENDATION Recommending Plaintiff's Motion to Enter Default be Denied 28 , signed by Magistrate Judge Dennis L. Beck on 10/17/14. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 DION ANDERSON, 12 13 14 15 Plaintiff, vs. K. KIMBRELL, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1:13-cv-00378 AWI DLB PC FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF’S MOTION TO ENTER DEFAULT BE DENIED [ECF No. 28] 16 17 Plaintiff Dion Anderson (“Plaintiff”) is a California state prisoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this 19 action on March 15, 2013. 20 21 22 On October 18, 2013, the Court dismissed the complaint and granted Plaintiff leave to file a First Amended Complaint. On February 6, 2014, Plaintiff filed his First Amended Complaint. On March 24, 2014, he filed a motion for leave to file a Second Amended Complaint 23 and lodged the proposed Second Amended Complaint. On August 26, 2014, the Court granted 24 25 26 27 28 the motion to file a Second Amended Complaint. The Second Amended Complaint is currently pending screening by the Court. On October 14, 2014, Plaintiff filed the instant motion for entry of default. Plaintiff contends that Defendants have neither filed an answer, extension of time, or entered the 1 1 2 3 4 appearance of an attorney within the time deadline. Plaintiff is advised that service of process has not yet been effected on Defendants, triggering their obligation to respond to his complaint. Fed. R. Civ. P. 4(e). In this case, the United States Marshal will be directed to initiate service of process on Plaintiff’s behalf when the Court has determined that Plaintiff’s complaint states 5 cognizable claims for relief and service is appropriate. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 6 7 8 4(c)(2). The Court has not yet screened the Second Amended Complaint. Therefore, service is not yet appropriate. RECOMMENDATION 9 10 11 For all of the foregoing reasons, this Court recommends that Plaintiff's motion to enter default against Defendants be DENIED. 12 These Findings and Recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 14 (14) days after being served with these Findings and Recommendations, the parties may file 15 written objections with the Court. The document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 17 18 within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 IT IS SO ORDERED. 21 22 Dated: /s/ Dennis October 17, 2014 L. Beck UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?