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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RASHAD KING,

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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.

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Plaintiff Rashad King (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Eighth

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Amendment violations against Defendants Holland and Duncan for excessive force during the

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first escort; against Defendants, Holland, Duncan and Solis for excessive force in the second cell;

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against Defendant Tingley for failing to intervene in the attack by Defendants Holland, Solis and

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Duncan in the second cell; and sexual assault against Defendant Holland.

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On December 22, 2016, the Court directed the United States Marshal to serve the

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operative complaint and summons on Defendants Holland, Duncan, Solis and Tingley. (ECF No.

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18.) On March 7, 2017, the United States Marshal returned waivers of service executed by

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Defendants Duncan, Holland and Tingley.1 Pursuant to the waivers of service, Defendants

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Duncan, Holland and Tingley were directed to respond to the operative complaint within 90 days

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of January 9, 2017, which is calculated as March 10, 2017. (ECF No. 26.) On March 10, 2017,

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Defendants Duncan, Holland and Tingley filed an answer to the operative complaint. (ECF No.

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27.)

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On March 20, 2017, Plaintiff filed a document titled “Declaration for Entry of Default.”

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(ECF No. 28.) The Court construes this document as a request for entry of default as to

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Defendants Duncan, Holland and Tingley. In his request, Plaintiff contends that Defendants

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Duncan, Holland and Tingley were served on January 26, 2017, and were required to respond to

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the complaint within 21 days, but failed to answer or otherwise defend this action. (Id.)

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Plaintiff is mistaken. As noted above, the waivers of service returned executed as to

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Defendants Duncan, Holland and Tingley required a response to the complaint within 90 days of

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January 9, 2017, which is March 10, 2017. (ECF No. 26.) Defendants Duncan, Holland and

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Tingley filed a timely answer to the complaint on March 10, 2017. Thus, Defendants Duncan,

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Holland and Tingley have not failed to answer or otherwise defend this action. Accordingly,

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Plaintiff’s request for entry of default is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

March 27, 2017

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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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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