UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 24, 2012
OFFICER S. ARREGUIN, DEFENDANT.
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING PLAINTIFF'S REQUEST FOR AN ENTRY OF DEFAULT (ECF No. 12)
Plaintiff Darrell Puckett ("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 has consented to Magistrate Judge jurisdiction. (ECF No. 5.)
Plaintiff initiated this action on June 1, 2010. (ECF No. 1.) On April 3, 2012, the Court found that Plaintiff had stated a cognizable Eighth Amendment claim against Defendant Arreguin. (ECF No. 8.) On April 18, 2012, the Court ordered the United States Marshall to serve Defendant Arreguin and set a service deadline of August 20, 2012. (ECF No. 11.) As of this date, the Court has not received any evidence that Defendant Arreguin has been served.
On August 15, 2012, Plaintiff filed a motion, requesting that the Court enter an order of default judgment against Defendant Arreguin. (Mot., ECF No. 12.)
A default, followed by a default judgment, cannot be taken unless and until the defendant has been served and fails to file a responsive pleading within the time allowed. Fed. R. Civ. P. 55(a). There is no evidence that Defendant Arreguin has yet been served, and thus no reason to believe that his time for filing a responsive pleading has expired.
Accordingly, Plaintiff having presented no basis upon which a default could be taken against this Defendant, his motion for a default judgment is DENIED.
IT IS SO ORDERED.
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