Vickers v. Thompson et al
Filing
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ORDER DENYING Plaintiff's 69 Request for Entry of Default, signed by Magistrate Judge Stanley A. Boone on 06/1/17. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JEREMIAH D. VICKERS,
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Plaintiff,
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v.
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THOMPSON, et al.,
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Defendants.
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Case No.: 1:15-cv-00129-SAB (PC)
ORDER DENYING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT
(ECF No. 69)
Plaintiff Jeremiah D. Vickers (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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Currently before the Court is Plaintiff’s request for entry of default as to Defendant
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O’Neil, filed May 30, 2017. (ECF No. 69.) Plaintiff declares in support that Defendant O’Neil
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was served with the summons and complaint on November 21, 2016, and has not answered or
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otherwise defended this action. As a result, Plaintiff seeks entry of default.1
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In general, “[a] summons must be served with a copy of the complaint.” Fed. R. Civ. P.
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4(c)(1). Federal Rule of Civil Procedure 12 provides that a defendant must serve an answer
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“within 21 days after being served with the summons and complaint,” unless the defendant has
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timely waived service under Rule 4(d). Fed. R. Civ. P. 12(a)(1). Federal Rule of Civil Procedure
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55(a) requires that the Clerk of the Court enter default “[w]hen a party against whom a judgment
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for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
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by affidavit or otherwise . . . .” Fed. R. Civ. P. 55(a).
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Plaintiff indicates that Defendant O’Neil was served on November 21, 2017
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Here, service has not been effected on Defendant O’Neil, nor has he waived service
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under Rule 4(d). Plaintiff cites the return of service form which was returned by the United
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States Marshal as proof that Defendant O’Neil was served. (ECF No. 53.) However, that
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summons was returned unexecuted, and the Marshal indicated that service could not be
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completed on Defendant O’Neil at the Tulare County Sheriff’s Department because that
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Defendant was no longer employed by Tulare County.
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On December 1, 2016, the Court directed re-service by the Marshal with additional
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information provided by defense counsel. On May 18, 2017, the United States Marshal again
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filed a return of service unexecuted as to Defendant O’Neil. (ECF No. 66). The Marshall
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indicated that an attempt at service was made with all available information, but service was not
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effected on Defendant O’Neil.
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On May 23, 2017, this Court issued an order to show cause to Plaintiff why Defendant
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O’Neil should not be dismissed from this action for the failure to provide sufficient information
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to effectuate service of process. (ECF No. 67.) That order may have crossed in the mail with the
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current motion.
Based on the foregoing, Defendant O’Neil has not yet been served with the summons and
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complaint, and thus default judgment is premature.
Accordingly, Plaintiff’s request for entry of default, filed May 30, 2017 is DENIED.
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IT IS SO ORDERED.
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Dated:
June 1, 2017
UNITED STATES MAGISTRATE JUDGE
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