Wolinski v. McDonald et al

Filing 30

ORDER signed by Magistrate Judge Craig M. Kellison on 12/8/11 ORDERING that plaintiffs motions for service of the complaint 13 , 25 are denied; Plaintiffs motion for default judgment 16 is denied as premature; Plaintiffs motion for leave to file an amended complaint 22 is disregarded as unnecessary; Plaintiffs motion for an extension of time to file his amended complaint 29 is granted; and Plaintiff shall file an amended complaint within 30 days of the date of this order. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRZYSZTOF F. WOLINSKI,

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No. CIV S-11-1932-GEB-CMK-P

Plaintiff,
vs.

ORDER

MIKE D. McDONALD, et al.,
Defendants.
/
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for an extension of time to

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file his amended complaint (Doc. 29), motion to file an amended complaint (Doc. 22), motions

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regarding service of defendants (Docs. 13, 25), and motion for default judgment (Doc. 16).

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Plaintiff has already been granted leave to file an amended complaint as the court

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found his original complaint insufficient, as outlined in the court’s November 16, 2011, order.

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As such, no further leave of court is necessary and his motion to file an amended complaint will

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be disregarded as unnecessary. As to plaintiff’s motions for service and entry of default, the

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court has found plaintiff’s claims defective, again as outlined in the court’s prior order. Until

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such time as plaintiff can cure the defects noted by the court, no service of any of the defendants
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will be authorized and the motions requesting such will be denied. Similarly, until service has

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been authorized, the defendants properly served, and sufficient time has passed for the

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defendants to respond to the complaint, no entry of default is appropriate. See Fed. R. Civ. Proc.

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55. Until a defendant’s default is entered, no motion for default judgement will be considered.

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Plaintiff’s motion for default judgment is premature, and will be denied.

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Finally, plaintiff is requesting additional time to file his amended complaint, as

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previously authorized. Good cause appearing therefor, the request will be granted. Plaintiff shall

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file an amended complaint within 30 days of the date of this order. Plaintiff is again warned that

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failure to file an amended complaint within the time provided may result in dismissal of this

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action for lack of prosecution and failure to comply with court rules and orders. See Local Rule

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110.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motions for service of the complaint (Docs. 13, 25) are denied;

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2.

Plaintiff’s motion for default judgment (Doc. 16) is denied as premature;

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3.

Plaintiff’s motion for leave to file an amended complaint (Doc. 22) is

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disregarded as unnecessary;

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(Doc. 29) is granted; and

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Plaintiff’s motion for an extension of time to file his amended complaint

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Plaintiff shall file an amended complaint within 30 days of the date of this

order.

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DATED: December 8, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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