Perez v. Padilla

Filing 16

ORDER DENYING Plaintiff's 15 Request for Entry of Default signed by Magistrate Judge Gary S. Austin on 9/9/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH PEREZ,

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1:14-cv-01730-GSA-PC

Plaintiff,

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vs.

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ORDER DENYING PLAINTIFF=S
REQUEST FOR ENTRY OF DEFAULT
(ECF No. 15; also resolves ECF No. 14.)

R. PADILLA,

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Defendant.

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I.

BACKGROUND

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Joseph Perez (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 November 6, 2014. (ECF No. 1.) On November 6, 2014, Plaintiff

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consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no

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other parties have made an appearance. (ECF No. 3.) Therefore, pursuant to Appendix A(k)(4)

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of the Local Rules of the Eastern District of California, the undersigned shall conduct any and

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all proceedings in the case until such time as reassignment to a District Judge is required.

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Local Rule Appendix A(k)(3).
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The court screened Plaintiff’s Complaint and issued an order on February 5, 2015,

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dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 9.) On

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April 15, 2015, Plaintiff filed the First Amended Complaint, which awaits the court’s requisite

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screening. (ECF No. 12.)

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On September 8, 2015, Plaintiff filed a request for entry of default against defendant

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Padilla. (ECF No. 15.)

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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 Padilla. Plaintiff provides a proof

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of service showing that he mailed a copy of the First Amended Complaint to defendant Padilla

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on September 3, 2015. (ECF No. 15 at 2.) Plaintiff asserts that defendant Padilla has not

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responded and therefore default should be entered against defendant Padilla.

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Discussion

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Plaintiff’s proof of service is not sufficient to show that defendant Padilla was properly

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served with process pursuant to Rule 4. Fed. R. Civ. P. 4. Moreover, it is not time for service

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of process in this case, because the court has not completed its requisite screening. The court is

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required by law to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity, such as the instant action

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brought pursuant to 42 U.S.C. ' 1983, and the court will initiate service of process sua sponte

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after the court has screened the complaint and determined that it contains cognizable claims for

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relief against defendant Padilla. 28 U.S.C. ' 1915A(a). Here, the First Amended Complaint

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awaits the court’s screening, and defendant Padilla has not been properly served. Therefore,

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Plaintiff’s request for entry of default 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 Padilla, filed on September 8, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

September 9, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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