Sokolsky v. State of California et al

Filing 23

FINDINGS And RECOMMENDATION Recommending Plaintiff's Motion To Enter Default Be Denied (ECF No. 22 ), signed by Magistrate Judge Dennis L. Beck on 12/9/2015. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/28/2015 (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK S. SOKOLSKY,

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Plaintiff,

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vs.
CHRISTINE MATIVO, et al.,
Defendants.

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1:13-cv-02044 LJO DLB PC
FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF’S MOTION
TO ENTER DEFAULT BE DENIED
[ECF No. 22]

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Plaintiff Mark S. Sokolsky (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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

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December 16, 2013.

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On September 11, 2015, Plaintiff filed a First Amended Complaint (“FAC”). He named
the State of California, Christine Mativo, Rebecca Domrese, Audrey King, Alan Carlson, Brian
Bowley, Marisa Bigot, Kamala Harris, and John/Jane Does 1 to 100 as Defendants. On July 27,
2015, the Court screened Plaintiff’s FAC and found that it stated the following claims: (1)

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violation of Plaintiff’s First Amendment rights to free exercise of religion by Defendants Mativo,
Domrese, King, Bowley, and Bigot; (2) violation of RLUIPA by Defendants Mativo, Domrese,
King, Bowley, and Bigot; and (3) violation of Plaintiff’s substantive due process rights by
Defendants King, Mativo, and Domrese for conditions of confinement. The Court ordered
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Plaintiff to file an amended complaint or notify the Court of his willingness to proceed only on
these claims. On August 10, 2015, Plaintiff notified the Court that he wanted to proceed only on
the cognizable claims identified above. Therefore, on August 18, 2015, the Court issued a
Findings and Recommendation that the action proceed on the cognizable claims, and all other

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claims and defendants be dismissed. On September 14, 2015, the District Court adopted the
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Findings and Recommendation. Subsequently, on September 17, 2015, the Court issued an order
directing the U.S. Marshal Service to initiate service of process on Plaintiff’s behalf.
On December 4, 2015, Plaintiff filed the instant motion for entry of default. Plaintiff

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contends that Defendants have failed to plead or otherwise defend as provided by the Federal

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Rules of Civil Procedure.

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In this case, the United States Marshal has been directed to initiate service of process on

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Plaintiff’s behalf. Fed. R. Civ. P. 4(c)(3). Pursuant to the Court’s order, the Marshals Service

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was directed to notify the Defendants of the commencement of the action and request a waiver of

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service. If a waiver of service is not returned by a Defendant within sixty days, the Marshals

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Service must then personally serve process upon the Defendants. There is no indication in this
case that service of process has been effected upon Defendants, thereby triggering their
obligation to respond to the complaint. Fed. R. Civ. P. 4(e). Therefore, Plaintiff’s motion for

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default is premature.
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RECOMMENDATION
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.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

December 9, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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