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