UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 26, 2009
CURTIS LEE HENDERSON SR, PLAINTIFF,
G. RODRIGUEZ, DEFENDANT.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DENYING MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT (Doc. 20)
Plaintiff Curtis Lee Henderson Sr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 6, 2008. On November 14, 2008, the Court directed the United States Marshal to initiate service upon defendant G. Rodriguez ("Defendant"). The summons was returned executed on January 12, 2009 and defendant's response to the complaint was due January 26, 2009. (Doc. 16). On January 26, 2009, Defendant filed a motion to dismiss pursuant to the unenumerated portion of Fed. R. Civ. Pro 12(b) for non-exhaustion and also pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. (Doc. 17). Then on February 2, 2009, Plaintiff served a motion for entry of default and default judgment. (Doc. 20).
Defendant timely filed a Rule 12 motion on January 26, 2009. Based on defendant's timely filing of a motion to dismiss, plaintiff's motion for entry of default and default judgment is HEREBY DENIED.
IT IS SO ORDERED.
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