Opinion
No. CIV S-07-1479 MCE JFM P.
January 17, 2008
ORDER
Plaintiff is a state prisoner proceeding in propria persona and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On November 28, 2007, plaintiff filed a request for summary judgment based on defendants' failure to "dispute . . . any material facts set forth in the complaint." (Id. at 2.) Plaintiff notes that despite this court's August 28, 2007 order directing the United States Marshal to serve process on defendants, defendants have failed to file an answer.
Plaintiff is advised that a motion for summary judgment is premature. Plaintiff's motion is more properly construed as a motion for entry of default based on defendants' failure to timely answer. Plaintiff is correct that the United States Marshal was directed to serve defendants. However, the United States Marshal has not yet returned the summons to indicate service of process has been accomplished. Because the court record does not reflect that service of process has yet been accomplished, plaintiff's motion is premature. Accordingly, this court cannot enter a clerk's default for defendants' alleged failure to answer or enter summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff's motion will be denied without prejudice.
During the pendency of plaintiff's motion, all defendants filed an answer. Thus, the court need not order the U.S. Marshal to apprise the court of the status of service.
Accordingly, IT IS HEREBY ORDERED that plaintiff's November 28, 2007 motion for summary judgment, construed as a motion for entry of default, is denied without prejudice.