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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH PEREZ, 12 1:14-cv-01730-GSA-PC Plaintiff, 13 vs. 14 ORDER DENYING PLAINTIFF=S REQUEST FOR ENTRY OF DEFAULT (ECF No. 15; also resolves ECF No. 14.) R. PADILLA, 15 Defendant. 16 17 18 19 20 I. BACKGROUND 21 Joseph Perez (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 23 commencing this action on November 6, 2014. (ECF No. 1.) On November 6, 2014, Plaintiff 24 consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no 25 other parties have made an appearance. (ECF No. 3.) Therefore, pursuant to Appendix A(k)(4) 26 of the Local Rules of the Eastern District of California, the undersigned shall conduct any and 27 all proceedings in the case until such time as reassignment to a District Judge is required. 28 Local Rule Appendix A(k)(3). 1 1 The court screened Plaintiff’s Complaint and issued an order on February 5, 2015, 2 dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 9.) On 3 April 15, 2015, Plaintiff filed the First Amended Complaint, which awaits the court’s requisite 4 screening. (ECF No. 12.) 5 On September 8, 2015, Plaintiff filed a request for entry of default against defendant 6 Padilla. (ECF No. 15.) 7 II. ENTRY OF DEFAULT 8 Entry of default is appropriate as to any party against whom a judgment for affirmative 9 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of 10 Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 11 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must serve an 12 answer within 21 days after being served with the summons and complaint; or if it has timely 13 waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@ Fed. 14 R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by 15 signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or 16 otherwise defend an action after being properly served with a summons and complaint, a 17 default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil 18 Procedure. 19 Plaintiff’s Request 20 Plaintiff requests entry of default against defendant Padilla. Plaintiff provides a proof 21 of service showing that he mailed a copy of the First Amended Complaint to defendant Padilla 22 on September 3, 2015. (ECF No. 15 at 2.) Plaintiff asserts that defendant Padilla has not 23 responded and therefore default should be entered against defendant Padilla. 24 Discussion 25 Plaintiff’s proof of service is not sufficient to show that defendant Padilla was properly 26 served with process pursuant to Rule 4. Fed. R. Civ. P. 4. Moreover, it is not time for service 27 of process in this case, because the court has not completed its requisite screening. The court is 28 required by law to screen complaints brought by prisoners seeking relief against a 2 1 governmental entity or officer or employee of a governmental entity, such as the instant action 2 brought pursuant to 42 U.S.C. ' 1983, and the court will initiate service of process sua sponte 3 after the court has screened the complaint and determined that it contains cognizable claims for 4 relief against defendant Padilla. 28 U.S.C. ' 1915A(a). Here, the First Amended Complaint 5 awaits the court’s screening, and defendant Padilla has not been properly served. Therefore, 6 Plaintiff’s request for entry of default must be denied. 7 III. 8 9 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. 10 11 12 13 IT IS SO ORDERED. Dated: September 9, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?