UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 15, 2012
KRZYSZTOF F. WOLINSKI,
MAURICE JUNIOUS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING REQUEST FOR ENTRY OF DEFAULT (ECF No. 52)
Plaintiff Krzysztof F. Wolinski ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants S. Boardman and T. Swaim for excessive force in violation of the Eighth Amendment, and against Defendant W. A. Rivera for violation of the Due Process Clause of the Fourteenth Amendment. Pending before the Court is Plaintiff's motion, filed July 20, 2012, requesting entry of default against Defendants. The matter is submitted pursuant to Local Rule 230(l).
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Plaintiff contends that Defendants failed to answer by the required deadline. Plaintiff is incorrect. The USM-285 form and waiver of service was mailed on June 6, 2012. ECF No. 51. Thus, Defendants had up to and including August 6, 2012 by which to file their responsive pleading. On August 6, 2012, Defendants filed a motion for extension of time to file 2 their responsive pleading on September 5, 2012. By separate order, the Court granted the motion. 3
Thus, Defendants' time to file a responsive pleading has not elapsed.
Accordingly, it is HEREBY ORDERED that Plaintiff's motion for entry of default, filed July 20, 2012, is denied.
IT IS SO ORDERED. 8 9
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