Davis v. Molina et al

Filing 8

FINDINGS and RECOMMENDATION Regarding Plaintiff's Request for Entry of Default re 7 , signed by Magistrate Judge Dennis L. Beck on 12/13/14. Referred to Judge O'Neill. Fourteen-Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES T. DAVIS, 12 13 14 15 Plaintiff, v. A. MOLINA, et al., Case No. 1:14-cv-01554 LJO DLB PC FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT [ECF No. 7] Defendants. 16 17 18 19 Plaintiff Charles T. Davis (“Plaintiff”) is a California state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 2, 2014. On December 5, 2014, Plaintiff filed a request seeking default judgment against Defendant 20 Wilson. Fed. R. Civ. P. 55(a). Plaintiff submits a proof of service showing service of summons was 21 effected on Defendant R. Wilson, P.A., on September 25, 2014. Plaintiff is advised that the Court is 22 required to screen complaints brought by prisoners seeking relief against a governmental entity or 23 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a 24 complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or 25 malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief 26 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding 27 any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any 28 time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief 1 1 2 3 may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In this case, the Court has not yet screened the complaint, and service on Defendants has not yet been authorized. Therefore, Plaintiff’s service on Defendant Wilson was premature. 4 5 6 7 8 9 10 11 12 13 14 RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s request for default judgment be DENIED. These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Dennis December 13, 2014 L. Beck UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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