Smith v. Smith et al

Filing 10

ORDER Denying Plaintiff's 9 Motion for Default and Default Judgment as Premature signed by Magistrate Judge Barbara A. McAuliffe on 11/06/2014. (Flores, E)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
9

KENNETH ARDELL SMITH,

10
11
12
13

Plaintiff,
v.
CDC CORCORAN STATE PRISON,
Defendant.

14

)
)
)
)
)
)
)
)
)
)
)

1:14-cv-00805-BAM
ORDER DENYING PLAINTIFF’S MOTION
FOR DEFAULT AND DEFAULT
JUDGMENT AS PREMATURE
(ECF No. 9)

15
16

Plaintiff Kenneth Ardell Smith (“Plaintiff”) is a former state proceeding pro se and in

17

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

18

action on May 27, 2014.

19

On November 5, 2014, Plaintiff filed an untitled document. Although not entirely clear,

20

it appears that Plaintiff is claiming that the defendant, CDC Corcoran State Prison, has defaulted

21

and that Plaintiff should be sent money. (ECF No. 9.) The Court construes the document as a

22

motion for entry of default and default judgment against Defendant CDC Corcoran State Prison

23

for failure to plead or otherwise defend this action.

24

Plaintiff’s motion for default and default judgment is premature and shall be denied

25

without prejudice. The Court is required to screen complaints brought by prisoners seeking

26

relief against a governmental entity and/or against an officer or employee of a governmental

27

entity. 28 U.S.C. § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to

28

dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be
1

1

granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28

2

U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii). The Court will direct the United States

3

Marshal to serve Plaintiff’s complaint only after the Court has screened the complaint and

4

determined that it contains a cognizable claim for relief against the named defendant. Plaintiff’s

5

complaint is currently in the screening stage and has not been served on any defendant.

6

Accordingly, Plaintiff’s motion for entry of default and default judgment is HEREBY DENIED,

7

without prejudice, as premature.

8

IT IS SO ORDERED.

9
Dated:

/s/ Barbara

November 6, 2014

10

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2