(PS) Petersen v. Sims

Opinion

KYLE PETERSEN, No. 1:19-cv-00138-DAD-EPG

Plaintiff, ORDER DENYING REQUESTS FOR ENTRY OF DEFAULT v. (ECF Nos. 37, 48, 51) ANTHONY SIMS, JR. and NICHOLAS TORRES, Defendants. Plaintiff, Kyle Petersen, is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Before the Court are three requests by Plaintiff for entry of default. (ECF Nos. 37, 48, 51.) The requests will be denied. The Court screened Plaintiff’s third amended complaint (“TAC”) and supplement to the TAC and found that Plaintiff could proceed on his claims against Defendants Anthony Sims and Nicholas Torres for violation of Plaintiff’s Fourth Amendment right against unreasonable search. (ECF No. 14.) Service of the TAC was completed on Defendant Anthony Sims, Jr., on December 20, 2019, and on Defendant Nicholas Torres on December 23, 2019. (ECF No. 39.) Thus, the deadline for Defendant Sims to file his answer was February 18, 2020, and the deadline for Defendant Torres to file his answer was February 21, 2020. See Fed. R. Civ. P. 12(a)(3) (providing that an employee of the United States sued in their individual capacity must serve an answer to a complaint within 60 days after service). 4:£0 UV EITM AE SMMC VO POC eee yh Ove

On January 23, 2020, prior to the date on which Defendants’ answers were due, Plaintiff filed his first request for entry of default. (ECF No. 37.) Plaintiff was not entitled to entry of default at the time he filed the request. See Fed. R. Civ. P. 55a). On February 11, 2020, prior to the date on which their answers were due, Defendants filed a motion for extension of time to respond to the TAC. (ECF No. 43.) The Court granted the motion, extending the deadline for Defendants to file their response to the TAC to April 19, 2020. (ECF No. 44.) On April 17, 2020, Defendants filed a motion to dismiss. (ECF No. 46.) The filing of this motion postponed the deadline for filing an answer. If the motion to dismiss is denied, Defendants will need to file their answer within fourteen days after Defendants are served with the the order denying the motion. See Fed. R. Civ. P. 12(a)(4)(A). On April 27, 2020, Plaintiff filed his second request for entry of default (ECF No. 48), and on May 1, 2020, Plaintiff filed his third request for entry of default (ECF No. 51). Because the deadline for Defendants to file their answer has not run, Plaintiff is not entitled to entry of default. See Fed. R. Civ. P. ] 55(a). IT IS ORDERED that Plaintiffs requests for entry of default (ECF Nos. 37, 48, 51) are denied. IT IS SO ORDERED. 18] Dated: _May 21, 2020 [Jee ey UNITED STATES MAGISTRATE JUDGE