Black v. Jaime et al

Filing 23

ORDER DENYING 22 Request for Entry of Default signed by Magistrate Judge Michael J. Seng on 2/24/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL BLACK, Plaintiff, 11 ORDER DENYING REQUEST FOR ENTRY OF DEFAULT v. 12 13 Case No. 1:16-cv-00503-MJS (PC) (ECF NO. 22) WADDLE, et al., Defendants. 14 15 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to 42 U.S.C. § 1983. On November 9, 2016, the Court 19 screened Plaintiff’s complaint and determined that service of Plaintiff’s first amended 20 complaint was appropriate for Defendants Brubaker, Neibert, Waddle, Sherrill, and 21 Walinga. (ECF No. 18.) On December 9, 2016, the Court issued an order directing the 22 United States Marshal Service to serve the amended complaint on these Defendants. 23 (ECF No. 21.) 24 Before the Court is Plaintiff’s February 21, 2017 request for entry of default. (ECF 25 No. 22.) 26 I. Legal Standard 27 In general, “[a] summons must be served with a copy of the complaint.” Fed. R. 28 1 Civ. P. 4(c)(1). However, many defendants have “a duty to avoid unnecessary expenses 2 of serving the summons.” Fed. R. Civ. P. 4(d)(1). “The plaintiff may notify such a 3 defendant that an action has been commenced and request that the defendant waive 4 service of a summons.” Id. Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil Procedure 5 provides that a defendant that has timely waived service under Rule 4(d) must respond 6 “within 60 days after the request for a waiver was sent, or within 90 days after it was 7 sent to the defendant outside any judicial district of the United States.” Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the 8 9 Court enter default “when a party against whom a judgment for affirmative relief is 10 sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 11 otherwise.” Rule 55(b)(2) provides that the Court may grant a default judgment after 12 default has been entered by the Clerk of the Court. 13 II. Discussion 14 Plaintiff’s request for entry of default is premature. There is no indication in the 15 record that the United States Marshal has sent Defendants a waiver of service or 16 personally served them. Thus, there is no indication of whether or when Defendants’ 17 response is due, or whether the time for them to respond has expired. The Court cannot 18 enter default absent proof that Defendants have been served or have waived service. 19 Absent such information from the Marshals Service, Plaintiff is not entitled to the entry 20 of default in this case. 21 III. Conclusion and Order 22 Plaintiff’s request for entry of default is premature and is HEREBY DENIED 23 without prejudice. 24 25 26 IT IS SO ORDERED. Dated: February 24, 2017 /s/ 27 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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