Moser v. North Kern State Prison

Filing 14

ORDER DENYING 12 Plaintiff's Request for Entry of Default, signed by Magistrate Judge Gary S. Austin on 4/8/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RORY C. MOSER,

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Plaintiff,

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1:14-cv-01351-GSA-PC
ORDER DENYING PLAINTIFF=S
REQUEST FOR ENTRY OF DEFAULT
(Doc. 12.)

vs.
NORTH KERN STATE PRISON,

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Defendant.

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I.

BACKGROUND

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Rory C. Moser (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on August 25, 2014, at the Sacramento Division of the United States

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District Court, Eastern District of California. (Doc. 1.) On August 29, 2014, the case was

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transferred to the Fresno Division of the Eastern District. (Doc. 4.)

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On September 15, 2014, Plaintiff consented to Magistrate Judge jurisdiction in this

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action pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 7.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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On April 6, 2015, Plaintiff filed a request for entry of default against defendant North

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Kern State Prison. (Doc. 12.)

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II.

ENTRY OF DEFAULT

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.

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55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must serve an

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answer within 21 days after being served with the summons and complaint; or if it has timely

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waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@ Fed.

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R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by

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signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or

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otherwise defend an action after being properly served with a summons and complaint, a

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default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil

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Procedure.

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Plaintiff’s Request

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Plaintiff requests entry of default against defendant North Kern State Prison. Plaintiff

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asserts that court records indicate that on September 22, 2014, the defendant was served with

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copies of a summons and complaint by the United States Marshal.

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should be entered against the defendant because more than twenty days have elapsed since

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service was completed, and the defendant failed to plead or otherwise defend in this action.

Plaintiff argues that default

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Discussion

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Plaintiff is mistaken. Court records do not reflect that the defendant was served with

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process by the United States Marshal on September 22, 2014. (Court Record.)

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evidence that defendant North Kern State Prison was properly served with process and failed to

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plead or otherwise defend pursuant to Rule 55(a). Fed. R. Civ. P. 55(a).

There is no

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It is not time for service in this case. With respect to service, the court will, sua sponte,

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direct the United States Marshal to serve the complaint only after the court has screened the

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complaint and determined that it contains cognizable claims for relief against the named
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defendant. Here, Plaintiff’s Complaint awaits the court’s requisite screening under 28 U.S.C. §

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1915A. Therefore, at this stage of the proceedings, entry of default is not appropriate, and

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Plaintiff’s request must be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s request for entry of

default against defendant North Kern State Prison, filed on April 6, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

April 8, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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