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Reynolds v. Gerstel

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 7, 2010

FERDINAND REYNOLDS, PLAINTIFF,
v.
K. GERSTEL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION FOR ENTRY OF DEFAULT

(Doc. 30)

Plaintiff Ferdinand Reynolds ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant K. Gerstel for violation of the Eighth Amendment.

On January 6, 2010, Plaintiff filed a motion for default against Defendant Gerstel for failure to reply. Plaintiff contends that the Court, by order filed on November 2, 2009, directed the United States Marshal to serve Defendant Gerstel within ten days, and Defendant did not file a reply within twenty days afterwards. Plaintiff thus contends that judgment should be entered against Defendant.

Plaintiff ignores several other parts of the Court's November 2, 2009 order. Defendant has sixty days after being served with the summons and complaint to return a waiver of service. (Doc. 27, Order 1:26-2:8.) Even assuming Defendant was served by November 12, 2009, that would still give Defendant until March 5, 2010, to return a waiver of service. For entry of default to occur, a party must fail to plead or otherwise defend. Fed. R. Civ. P. 55. Before this can occur, a party must first be served or return a waiver of service.

Accordingly, the Court HEREBY ORDERS that Plaintiff's motion for entry of default, filed on January 6, 2010, is DENIED.

IT IS SO ORDERED.

20100107

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