Opinion
No. CIV S-07-2400 FCD EFB P.
May 8, 2008
ORDER
Plaintiff is a prisoner without counsel suing for alleged civil rights violations. On April 2, 2008, the court reviewed plaintiff's initial complaint and, finding that it fails to state a claim for relief against the defendant, dismissed the complaint with leave to amend. See 28 U.S.C. § 1915A. Currently pending before the court is plaintiff's April 23, 2008, request that the Clerk of the Court to enter the default of defendant Arnold Schwarzenegger.
Federal Rule of Civil Procedure 55 states:
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
A party who waives service of process has 60 days from the date the request for waiver was sent to serve an answer. Fed.R.Civ.P. 4(d)(3). As noted above, the court dismissed plaintiff's initial complaint with leave to amend. The defendant has not been served. Thus, there is no basis for finding the defendant is in default.
Accordingly, plaintiff's April 23, 2008, request for entry of default is denied and the Clerk of the Court shall not enter the default of defendant Schwarzenegger.
So ordered.