Wahl v. Sutton

Filing 40

ORDER Denying 39 Request for Entry of Default, signed by Magistrate Judge Barbara A. McAuliffe on 11/2/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PETER GERARD WAHL,

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Plaintiff,

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ORDER DENYING MOTION FOR ENTRY
OF DEFAULT

v.

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Case No. 1:16-cv-01576-LJO-BAM (PC)

SUTTON, et al.,

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(ECF No. 39)
Defendants.

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Plaintiff Peter Gerard Wahl (“Plaintiff”) is a former state prisoner proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds

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against Defendant Sutton for deliberate indifference resulting from excessive custody, in violation

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of the Eighth Amendment.

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On September 20, 2018, the Court directed the United States Marshal to initiate service of

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the operative complaint and summons on Defendant Sutton. (ECF No. 38.) Plaintiff filed a

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request for entry of default on October 31, 2018. (ECF No. 39.)

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P.

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55(a). The Court issued an order directing the United States Marshal to initiate service. Until

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Defendant Sutton has either waived service and failed to respond within sixty days, or has been
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personally served and failed to respond within twenty-one days, Defendant is not in default and

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Plaintiff is not entitled to entry of default.

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Accordingly, Plaintiff’s motion for entry of default, (ECF No. 39), is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 2, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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