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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BLACK,
Plaintiff,

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ORDER DENYING REQUEST FOR
ENTRY OF DEFAULT

v.

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Case No. 1:16-cv-00503-MJS (PC)

(ECF NO. 22)
WADDLE, et al.,
Defendants.

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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.)
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Before the Court is Plaintiff’s February 21, 2017 request for entry of default. (ECF

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26 I.

Legal Standard

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In general, “[a] summons must be served with a copy of the complaint.” Fed. R.

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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

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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.
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Discussion

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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.
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Conclusion and Order

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Plaintiff’s request for entry of default is premature and is HEREBY DENIED

23 without prejudice.
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IT IS SO ORDERED.
Dated:

February 24, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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