UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 5, 2012
STEVEN D. PARKS,
O. ONYEJE, ET AL.,
The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER ADDRESSING PLAINTIFF'S OBJECTIONS (ECF No. 19)
Plaintiff Steven D. Parks 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 on Plaintiff's first amended complaint, filed May 30, 2012, against Defendant Onyeje for deliberate indifference to Plaintiff's Valley Fever in violation of the Eighth Amendment. (ECF No. 13.) On June 15, 2012, an order issued directing the United States Marshal to initiate service of process of the first amended complaint on Defendant Onyeje. (ECF No. 14.) On October 22, 2012, Plaintiff filed a motion for sanctions against Defendant for failure to respond to the complaint. (ECF No. 17.) On October 23, 2012, an order issued denying Plaintiff's motion for sanctions. (ECF No. 18.) On November 1, 2012, Plaintiff filed objections to the motion for sanctions and a waiver of service was returned executed by Defendant Onyeje.
Plaintiff objects to the order denying his motion for sanctions because he received a letter from defense counsel stating that all correspondence should be directed to him which shows that the defendant has been served. As explained to Plaintiff in the October 23, 2012 order, since Defendant waived service in this action, he has sixty days in which to file an answer to the complaint. Fed. R. Civ. P. 12(a). Defendants' answer to the complaint is not due until December 3, 2012.
Further, should Plaintiff fail to file an answer or other responsive pleading, the correct response by Plaintiff is a motion for default. Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P. 55(a). Defendant is not in default and Plaintiff's motion for sanctions was appropriately denied.
IT IS SO ORDERED.
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