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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERT VELEZ, Jr., Plaintiff, 10 11 12 13 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 14 15 Plaintiff, Robert Velez, Jr., a state inmate proceeding pro se and in forma pauperis, filed 16 this civil rights action pursuant to 42 U.S.C. ' 1983. On March 6, 2017, Plaintiff filed a motion 17 requesting a default judgment against the defendants, since they have not filed either a motion to 18 dismiss or an answer to the Complaint. (Doc. 10.) Plaintiff requests that default be entered and 19 the defendants be required to file a response to the Complaint. (Id.) 20 The First Informational Order informed Plaintiff that 28 U.S.C. § 1915A(a) requires the 21 Court to screen Plaintiff’s complaint. (Doc. 4, p. 3.) After the Court finds that Plaintiff has stated 22 a cognizable claim, the United States Marshal will be ordered to initiate service on the 23 defendants. (Id.) The date a responsive pleading is due is calculated from the date of service and 24 depends on the method of service. As an initial matter and as stated in the recently issued 25 screening order, Plaintiff has not stated a cognizable claim upon which relief may be granted. 26 Since Plaintiff has not yet stated a cognizable claim, his complaint has not been served on the 27 defendants. If Plaintiff is able to state a cognizable claim, service will be initiated by the United 28 States Marshal, and responses will become due. Until that time, no responsive pleadings are due 1 1 from the defendants. 2 3 Accordingly, the Court HEREBY RECOMMENDS that Plaintiff=s motion for default judgment, filed on March 6, 2017, (Doc. 10), be DENIED as premature. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30 6 days after being served with these Findings and Recommendations, the parties may file written 7 objections with the Court. Local Rule 304(b). The document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 9 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 10 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 14 IT IS SO ORDERED. Dated: May 16, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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