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Montanez v. Keller

United States District Court, Middle District of Pennsylvania

April 9, 2014

DOMINGO COLON MONTANEZ, Plaintiff
v.
RICHARD KELLER, et al., Defendant

CAPUTO, J.

REPORT AND RECOMMENDATION

KAROLINE MEHALCHICK United States Magistrate Judge

Plaintiff Domingo Colon Montanez, proceeding pro se, is an inmate currently incarcerated at the State Correctional Institution at Smithfield located in Huntingdon, Pennsylvania. On October 15, 2013, Montanez filed this civil rights action pursuant to 42 U.S.C. § 1983, (Doc. 1), and a motion for leave to proceed in forma pauperis. (Doc. 2). On December 5, 2013, this Court granted the motion to proceed in forma pauperis and directed the United States Marshal to serve Plaintiff’s complaint on Defendants in accordance with Federal Rules of Civil Procedure 4. (Doc. 12). On March 24, 2014, a waiver of the service of summons was returned by Defendants. (Doc. 21). The request to waive service of summons was sent on February 12, 2014, and Defendants have sixty (60) days from that date to either file and serve an answer or a motion under Rule 12. (See Doc. 21). As such, Defendants have until April 14, 2014, to submit a response to Plaintiff’s complaint. On February 18, 2014, Plaintiff filed a motion for entry of default judgment against all Defendants, pursuant to Federal Rule of Civil Procedure 55. (Doc. 17). For the following reasons, it is recommended that Plaintiff’s motion for default judgment be denied as premature.

Defendants are afforded the opportunity to respond to the complaint within the statutory time period. A default judgment may be entered where a party fails to plead or otherwise defend. See Fed.R.Civ.P. 55. In this case, Defendants have sixty (60) days from February 12, 2014, the date when the request to waive service of summons was sent, to respond to Plaintiff’s complaint. Defendants are still within the statutory time period to respond to the complaint, as a response is not due until April 14, 2014. As such, it is recommended that Plaintiff’s motion for default judgment against all Defendants (Doc. 17) be DENIED as premature.

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 9, 2014.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

de novo

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