IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 25, 2009
GREGORY D. GRANT, PLAINTIFF,
GOVERNOR ARNOLD SCHWARZENEGGER*FN1 , ET AL., DEFENDANTS.
Plaintiff is a civil detainee committed to Atascadero State Hospital under California's Sexually Violent Predators Act proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 6, 2009, plaintiff filed a document styled as a motion for summary judgment. The court construes this document as a request for entry of default pursuant to Fed. R. Civ. P. 55.
By order filed November 25, 2008, the United States Marshal was directed to serve process on four defendants named in plaintiff's original complaint. The United States Marshal has not yet filed a return of service for any of the four defendants. On February 10, 2009, defendants, through counsel, filed a document declining to proceed before a United States Magistrate Judge. No other documents have been filed by or on behalf of defendants in this action.
Rule 55 of the Federal Rules of Civil Procedure provides for entry of default against a party who fails "to plead or otherwise defend" against a properly served action. Fed. R. Civ. P. 55(a). Entry of default is only proper, if at all, after the time to respond to the complaint has expired. There is no evidence in the record that defendants' time to respond to the complaint has expired. Accordingly, plaintiff's request for entry of default is premature and will be denied.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff's February 6, 2009 motion for summary judgment is construed as a request for entry of default and, so construed, is denied.