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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DION ANDERSON,

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Plaintiff,
vs.
K. KIMBRELL, et al.,
Defendants.

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1:13-cv-00378 AWI DLB PC
FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF’S MOTION
TO ENTER DEFAULT BE DENIED
[ECF No. 28]

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Plaintiff Dion Anderson (“Plaintiff”) is a California state prisoner proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on March 15, 2013.

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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

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and lodged the proposed Second Amended Complaint. On August 26, 2014, the Court granted
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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
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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

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cognizable claims for relief and service is appropriate. 28 U.S.C. § 1915(d); Fed. R. Civ. P.
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4(c)(2). The Court has not yet screened the Second Amended Complaint. Therefore, service is
not yet appropriate.
RECOMMENDATION

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For all of the foregoing reasons, this Court recommends that Plaintiff's motion to enter
default against Defendants be DENIED.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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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).

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

October 17, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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