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Smith v. Davis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 3, 2008

MICHAEL LENOIR SMITH, PLAINTIFF,
v.
SGT. DAVIS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING MOTIONS FOR ENTRY OF DEFAULT AND ENTRY OF DEFAULT AS PREMATURE (Docs. 31 and 32)

On July 30, 2008, Plaintiff Michael Lenoir Smith ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed a motion for entry of default and a motion for default judgment. Fed. R. Civ. P. 55.

The United States Marshal was ordered by the Court to initiate service of process by order filed June 11, 2008. (Doc. 16.) Defendants Dill, Elizalde, Davis, and Nesbitt waived service of summons and their response to the complaint is due on or before August 15, 2008. Fed. R. Civ. P. 6(d), 12(a)(1)(A)(ii). (Docs. 26, 28, 29, 30.) Defendant C/O Franco also waived service and a response is due or on before August 25, 2008. Id. (Doc. 27.) Defendant Gus was not identified and located, and service was returned un-executed. (Doc. 23.) Service on Defendants Lindquist, Cas, and Cook Supervisor Franco is still in process.

The only defendants who are obligated to respond at this juncture are the defendants who waived service, and their responses are due yet. Because none of the defendants is in default at this time, Plaintiff's motions are HEREBY DENIED as premature.

IT IS SO ORDERED.

20080803

© 1992-2008 VersusLaw Inc.



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