Vickers v. Thompson et al

Filing 70

ORDER DENYING Plaintiff's 69 Request for Entry of Default, signed by Magistrate Judge Stanley A. Boone on 06/1/17. (Martin-Gill, S)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JEREMIAH D. VICKERS, 9 Plaintiff, 10 v. 11 THOMPSON, et al., 12 Defendants. 13 14 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 15 16 ) ) ) ) ) ) ) ) ) ) ) forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 17 Currently before the Court is Plaintiff’s request for entry of default as to Defendant 18 O’Neil, filed May 30, 2017. (ECF No. 69.) Plaintiff declares in support that Defendant O’Neil 19 was served with the summons and complaint on November 21, 2016, and has not answered or 20 otherwise defended this action. As a result, Plaintiff seeks entry of default.1 21 In general, “[a] summons must be served with a copy of the complaint.” Fed. R. Civ. P. 22 4(c)(1). Federal Rule of Civil Procedure 12 provides that a defendant must serve an answer 23 “within 21 days after being served with the summons and complaint,” unless the defendant has 24 timely waived service under Rule 4(d). Fed. R. Civ. P. 12(a)(1). Federal Rule of Civil Procedure 25 55(a) requires that the Clerk of the Court enter default “[w]hen a party against whom a judgment 26 for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 27 by affidavit or otherwise . . . .” Fed. R. Civ. P. 55(a). 28 1 Plaintiff indicates that Defendant O’Neil was served on November 21, 2017 1 1 Here, service has not been effected on Defendant O’Neil, nor has he waived service 2 under Rule 4(d). Plaintiff cites the return of service form which was returned by the United 3 States Marshal as proof that Defendant O’Neil was served. (ECF No. 53.) However, that 4 summons was returned unexecuted, and the Marshal indicated that service could not be 5 completed on Defendant O’Neil at the Tulare County Sheriff’s Department because that 6 Defendant was no longer employed by Tulare County. 7 On December 1, 2016, the Court directed re-service by the Marshal with additional 8 information provided by defense counsel. On May 18, 2017, the United States Marshal again 9 filed a return of service unexecuted as to Defendant O’Neil. (ECF No. 66). The Marshall 10 indicated that an attempt at service was made with all available information, but service was not 11 effected on Defendant O’Neil. 12 On May 23, 2017, this Court issued an order to show cause to Plaintiff why Defendant 13 O’Neil should not be dismissed from this action for the failure to provide sufficient information 14 to effectuate service of process. (ECF No. 67.) That order may have crossed in the mail with the 15 current motion. Based on the foregoing, Defendant O’Neil has not yet been served with the summons and 16 17 complaint, and thus default judgment is premature. Accordingly, Plaintiff’s request for entry of default, filed May 30, 2017 is DENIED. 18 19 20 IT IS SO ORDERED. 21 Dated: June 1, 2017 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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?