Langley v. Tulare Police Department et al

Filing 48

ORDER DENYING Plaintiff's Request for Entry of Default 46 . Order signed by Magistrate Judge Sheila K. Oberto on 7/20/2017. (Timken, A)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 RANDY LANGLEY, Plaintiff, 7 8 11 ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT v. 9 10 CASE NO. 1:16-cv-00336-DAD-SKO (Doc. 46) TULARE POLICE DEPARTMENT, et al., Defendants. 12 13 14 15 Plaintiff, Randy Langley, is a prisoner in the custody of the California Department of Corrections and Rehabilitation (“CDCR”). On February 5, 2016, Plaintiff, proceeding pro se, filed a complaint in the Superior Court of California, County of Tulare, against Defendants 16 “Tulare Police Department,” “Officer Colejio” [sic] and “Doe 1,” alleging causes of action for 17 “[g]eneral [n]egligence,” “[i]ntentional [t]ort,” “false imprisonment, battery, cruel and unusual 18 19 20 21 22 23 24 25 26 27 28 punishment, wrongful prosecution, conviction, violation of civil rights, [and] police misconduct/brutality” arising out of his arrest by Defendants. (Doc. 2, Ex. 1 at 7–11.) Plaintiff seeks compensatory damages and punitive damages in the amount of $100 million. (Id. at 9.) Defendant City of Tulare (erroneously named as Tulare Police Department) removed the action to this Court on March 10, 2016. (Doc. 2.) On June 5, 2017, Plaintiff filed a “Declaration for Entry of Default” (the “Declaration”), which appears to request entry of default against Defendant Officer Jose Colegio. (Doc. 46.) Plaintiff asserts in the Declaration that Defendant Colegio was served “by legal processor, U.S. Mail with a copy of summons and a copy of plaintiffs [sic] complaint on the day 28 of February 2017.” (Doc. 46 at 1.) Attached to Plaintiff’s Declaration is a “Proof of Service by Mail,” 1 indicating that Plaintiff mailed the complaint, as well as some discovery documents, to Defendant 2 Colegio by mail on February 28, 2017. (Doc. 46 at 7.) 3 Plaintiff did not properly serve Defendant Colegio with a summons and a copy of the 4 complaint. First, there is no indication that Defendant Colegio was ever served with a summons, 5 as required by Federal Rule of Civil Procedure 4(c)(1). In addition, although Plaintiff represents 6 that Defendant Colegio was served “by legal processor,” the proof of service attached to the 7 Declaration shows that Plaintiff personally served Defendant Colegio with the complaint. (See 8 Doc. 46 at 7.) A party cannot effectuate personal service of process under Rule 4. See Fed. R. 9 Civ. P. 4(c)(2) (“Any person who is at least 18 years old and not a party may serve a summons 10 and complaint”) (emphasis added). Accordingly, service of process was not proper, and Plaintiff’s 11 “Declaration for Entry of Default” requesting entry of default against Defendant Officer Jose 12 Colegio (Doc. 46) is DENIED. 13 14 15 16 IT IS SO ORDERED. Dated: July 20, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 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?