Opinion
No. CIV S-05-2025 LKK EFB P.
October 16, 2008
ORDER
Plaintiff is a state prisoner without counsel suing under 42 U.S.C. § 1983. He filed a second amended complaint on March 19, 2007, and the court found service appropriate as to defendants Lara, Palmer, Winnings and Gama in an order filed November 20, 2007. Service was ordered on defendants Lara, Palmer and Winnings on February 1, 2008 and on defendant Gama on June 25, 2008. Plaintiff has filed several motions for the clerk's entry of default, claiming that more than 20 days had elapsed since the date on which defendants were served and that they had failed to answer. For the reasons explained below, plaintiff's motions are denied.
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). The United States Marshall sent a request for waiver to defendant Lara on February 8, 2008, and defendant Lara served an answer on April 8, 2008. The United States Marshall sent a request for waiver to defendant Gama on June 26, 2008, and defendant Gama served an answer on August 26, 2008.
On April 23, 2008, defendant Palmer requested an extension of time in which to file a response to the amended complaint. That request was granted on April 29, 2008 and his answer was deemed timely filed.
Finally, defendant Winnings has not yet been served.
Defendants are not in default, and, accordingly, it is ORDERED that plaintiff's April 7 and 11, 2008, and August 7, 2008 motions for clerk's entry of default (Dckt. Nos. 41, 43, 56.) are denied.