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Larry D. Thomas v. v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 5, 2011

LARRY D. THOMAS,
PLAINTIFF,
v.
V. YATES, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS, INCLUDING ENTRY OF DEFAULT (Doc. 15)

Plaintiff Larry D. Thomas, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 9, 2010. On December 1, 2011, Plaintiff filed a motion seeking sanctions, including the entry of default, against Defendants for failing to file a response to his complaint. Fed. R. Civ. P. 55(a).

The United States Marshal was directed to initiate service of process on September 29, 2011. Court Doc. 14, Service Order. There is no evidence in the record that Defendants waived service or were personally served, and thereafter failed to timely respond.*fn1 Fed. R. Civ. P. 4(d), (e); Fed. R. Civ. P. 55(a). Defendants have an opportunity to waive service of the summons and complaint, and should they elect to waive service, they have sixty days from the date set forth in the waiver to file that response. Fed. R. Civ. P. 4(d); Service Order. Absent evidence that Defendants are in default, Plaintiff may not seek entry of default or any other sanction against them.

In this instance, Defendants Cervantes-Ponce, Yates, Villa, and Mangohig filed a motion seeking an extension of time to file a response to the complaint on December 2, 2011.*fn2 Although the Court is currently unable to verify their contention, Defendants state that their response is due December 5, 2011. Thus, they were not in default on December 1, 2011, when Plaintiff sought sanctions.

For the reasons set forth herein, Plaintiff's motion for sanctions, including entry of default, is HEREBY DENIED. Fed. R. Civ. P. 55(a).

IT IS SO ORDERED.

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