Valencia v. Kokor

Filing 28

ORDER DENYING 25 Plaintiff's Motion for Entry of Default signed by Magistrate Judge Dennis L. Beck on 10/29/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL G. VALENCIA,

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Plaintiff,

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Case No. 1:13-cv-01391 DLB PC
ORDER DENYING PLAINTIFF’S
MOTION FOR ENTRY OF DEFAULT

v.
(Document 25)

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WINFRED KOKOR,

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Defendant.

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Plaintiff Daniel G. Valencia (“Plaintiff”) is a California state prisoner proceeding pro se in

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this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 30, 2013.1
On August 8, 2014, the Court found that Plaintiff stated a cognizable Eighth Amendment

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claim against Defendant Kokor and ordered Plaintiff to return service documents.
On August 22, 2014, after Plaintiff returned the documents, the Court ordered the United

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States Marshal to serve Defendant.
On October 22, 2014, Plaintiff filed a motion for entry of default. Although the service

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documents have not been filed with the Court, Plaintiff attaches the USM-285 form showing that the

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United States Marshal mailed service documents to Defendant on August 29, 2014. Plaintiff also

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attaches a September 17, 2014, letter from the Attorney General’s Office indicating that they

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represent Defendant Kokor.

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Plaintiff consented to the jurisdiction of the United States Magistrate Judge on September 12, 2013.

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“Proof” of mailing, however, is not proof of service. It appears only that a waiver was

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mailed on August 29, 2014, and a defendant who elects to waive service has sixty days from the date

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set forth in the waiver to file that response. Fed. R. Civ. P. 4(d).

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More importantly, Defendant Kokor filed a motion to dismiss this action on October 28,
2014, and he has therefore made an appearance.
Accordingly, Plaintiff’s motion for entry of default is HEREBY DENIED. Fed. R. Civ. P.

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55(a).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

October 29, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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