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Gettings v. American Racing Pigeon Union

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 6, 2008

JIMMY GETTINGS, PLAINTIFF,
v.
THE AMERICAN RACING PIGEON UNION, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, proceeding pro se, brings this civil action. Pending before the court is plaintiff's letter to the court regarding the denial of his request for entry of default (Doc. 10). In this letter, plaintiff argues that his request for entry of default was improperly denied because he filed his request prior to the defendants' filing the motion to dismiss on the same day. Plaintiff indicates his request was filed first thing in the morning on July 21, 2008, and the defendants' motion was not filed until late that afternoon.

Plaintiff is proceeding in forma pauperis in this case. He was granted leave to proceed in forma pauperis on June 18, 2008. In the order granting him leave to proceed in forma pauperis, the court stated the requirement for the court to screen complaints brought by litigants who have been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(e)(2). It also directed the Clerk of the Court not to issue a summons in this matter until the complaint had been screened. However, regardless of this court's order, plaintiff appears to have attempted service of his complaint either without a summons having been issued, or using a summons he drafted on his own. Either way, no summons has issued in this matter, and service has not been approved by the court. Therefore, even if the defendants had not filed a motion to dismiss on the same day plaintiff requested entry of default, plaintiff's request would have been denied.

Normally, in a case where plaintiff is proceeding in forma pauperis, the court is required to screen the complaint in order to determine if service is appropriate. In this matter, since plaintiff has attempted service without authorization, and the defendants have appeared by way of filing a motion to dismiss, the court will hear the motion to dismiss and complete the screening requirements at the same time. The motion to dismiss is currently on calendar for September 10, 2008, at 10:00 before the undersigned in Redding, California. Plaintiff's opposition, if any, shall be filed with the Clerk of the Court and served on the defendants within the time outline in Rule 78-230(c) of the Local Rules of the Eastern District of California.*fn1

Accordingly, IT IS HEREBY ORDERED that plaintiff's request for entry of dismissal was properly denied and plaintiff opposition, if any, to the motion to dismiss shall be filed on or before August 27, 2008.


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