Velez, Jr. v. Lewis et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT VELEZ, Jr.,
LEWIS, et. al.,
Case No. 1:17-cv-00026-DAD-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DENY PLAINTIFF’S MOTION FOR
THIRTY (30) DAY DEADLINE
Plaintiff, Robert Velez, Jr., a state inmate proceeding pro se and in forma pauperis, filed
this civil rights action pursuant to 42 U.S.C. ' 1983. On March 6, 2017, Plaintiff filed a motion
requesting a default judgment against the defendants, since they have not filed either a motion to
dismiss or an answer to the Complaint. (Doc. 10.) Plaintiff requests that default be entered and
the defendants be required to file a response to the Complaint. (Id.)
The First Informational Order informed Plaintiff that 28 U.S.C. § 1915A(a) requires the
Court to screen Plaintiff’s complaint. (Doc. 4, p. 3.) After the Court finds that Plaintiff has stated
a cognizable claim, the United States Marshal will be ordered to initiate service on the
defendants. (Id.) The date a responsive pleading is due is calculated from the date of service and
depends on the method of service. As an initial matter and as stated in the recently issued
screening order, Plaintiff has not stated a cognizable claim upon which relief may be granted.
Since Plaintiff has not yet stated a cognizable claim, his complaint has not been served on the
defendants. If Plaintiff is able to state a cognizable claim, service will be initiated by the United
States Marshal, and responses will become due. Until that time, no responsive pleadings are due
from the defendants.
Accordingly, the Court HEREBY RECOMMENDS that Plaintiff=s motion for default
judgment, filed on March 6, 2017, (Doc. 10), be DENIED as premature.
These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30
days after being served with these Findings and Recommendations, the parties may file written
objections with the Court. Local Rule 304(b). The document should be captioned “Objections to
Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
May 16, 2017
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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