King v. Holland et al

Filing 29

ORDER DENYING Request for Entry of Default 28 , signed by Magistrate Judge Barbara A. McAuliffe on 3/27/17. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RASHAD KING, 12 13 14 15 Case No. 1:15-cv-01885-BAM (PC) Plaintiff, ORDER DENYING REQUEST FOR ENTRY OF DEFAULT v. (ECF No. 28) S. HOLLAND, et al., Defendants. 16 17 18 Plaintiff Rashad King (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Eighth 20 Amendment violations against Defendants Holland and Duncan for excessive force during the 21 first escort; against Defendants, Holland, Duncan and Solis for excessive force in the second cell; 22 against Defendant Tingley for failing to intervene in the attack by Defendants Holland, Solis and 23 Duncan in the second cell; and sexual assault against Defendant Holland. 24 On December 22, 2016, the Court directed the United States Marshal to serve the 25 operative complaint and summons on Defendants Holland, Duncan, Solis and Tingley. (ECF No. 26 18.) On March 7, 2017, the United States Marshal returned waivers of service executed by 27 28 1 1 Defendants Duncan, Holland and Tingley.1 Pursuant to the waivers of service, Defendants 2 Duncan, Holland and Tingley were directed to respond to the operative complaint within 90 days 3 of January 9, 2017, which is calculated as March 10, 2017. (ECF No. 26.) On March 10, 2017, 4 Defendants Duncan, Holland and Tingley filed an answer to the operative complaint. (ECF No. 5 27.) 6 On March 20, 2017, Plaintiff filed a document titled “Declaration for Entry of Default.” 7 (ECF No. 28.) The Court construes this document as a request for entry of default as to 8 Defendants Duncan, Holland and Tingley. In his request, Plaintiff contends that Defendants 9 Duncan, Holland and Tingley were served on January 26, 2017, and were required to respond to 10 the complaint within 21 days, but failed to answer or otherwise defend this action. (Id.) 11 Plaintiff is mistaken. As noted above, the waivers of service returned executed as to 12 Defendants Duncan, Holland and Tingley required a response to the complaint within 90 days of 13 January 9, 2017, which is March 10, 2017. (ECF No. 26.) Defendants Duncan, Holland and 14 Tingley filed a timely answer to the complaint on March 10, 2017. Thus, Defendants Duncan, 15 Holland and Tingley have not failed to answer or otherwise defend this action. Accordingly, 16 Plaintiff’s request for entry of default is HEREBY DENIED. 17 18 IT IS SO ORDERED. 19 Dated: March 27, 2017 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 1 On March 6, 2017, the Court issued a second order directing service by the United States Marshal on Defendant Solis. (ECF No. 25.) 2

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