Velez, Jr. v. Lewis et al

Filing 13

FINDINGS and RECOMMENDATION to Deny 10 Motion for Default Judgment, signed by Magistrate Judge Sheila K. Oberto on 5/16/17. Referred to Judge Drozd. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT VELEZ, Jr.,
Plaintiff,

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v.
LEWIS, et. al.,

Case No. 1:17-cv-00026-DAD-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DENY PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT
(Doc. 10)

Defendants.

THIRTY (30) DAY DEADLINE

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Plaintiff, Robert Velez, Jr., a state inmate proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. ' 1983. On March 6, 2017, Plaintiff filed a motion

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requesting a default judgment against the defendants, since they have not filed either a motion to

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dismiss or an answer to the Complaint. (Doc. 10.) Plaintiff requests that default be entered and

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the defendants be required to file a response to the Complaint. (Id.)

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The First Informational Order informed Plaintiff that 28 U.S.C. § 1915A(a) requires the

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Court to screen Plaintiff’s complaint. (Doc. 4, p. 3.) After the Court finds that Plaintiff has stated

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a cognizable claim, the United States Marshal will be ordered to initiate service on the

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defendants. (Id.) The date a responsive pleading is due is calculated from the date of service and

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depends on the method of service. As an initial matter and as stated in the recently issued

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screening order, Plaintiff has not stated a cognizable claim upon which relief may be granted.

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Since Plaintiff has not yet stated a cognizable claim, his complaint has not been served on the

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defendants. If Plaintiff is able to state a cognizable claim, service will be initiated by the United

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States Marshal, and responses will become due. Until that time, no responsive pleadings are due
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from the defendants.

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Accordingly, the Court HEREBY RECOMMENDS that Plaintiff=s motion for default
judgment, filed on March 6, 2017, (Doc. 10), be DENIED as premature.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. Local Rule 304(b). The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 16, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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