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Jones v. Montana State Prison

United States District Court, D. Montana, Helena Division

May 31, 2019

JEROMEY G. JONES, Plaintiff,
v.
MONTANA STATE PRISON, JIM SALMONSEN, and TERRIE STEFALO, [1] Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston, United States Magistrate Judge.

         Plaintiff Jeromey Jones, a state prisoner proceeding without counsel, filed a Amended Complaint on April 5, 2019 alleging Defendants violated his freedom of religion in violation of the First Amendment to the United States Constitution. (Doc. 18.) On May 28, 2019 he filed a document entitled “Declaration for Entry of Default” which has been construed as a motion for entry of default. (Doc. 19.)

         Mr. Jones declares that Defendants were served with a copy of the summons and the Complaint, more than 20 days have elapsed since Defendants were served, and Defendants failed to answer or otherwise defend. (Doc. 19.) Rule 55(a) of the Federal Rules of Civil Procedure provides, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.”

         Here, entry of default is not proper because Mr. Jones has not shown that defendants were properly served. See Joe Hand Promotions, Inc. v. Talayarathe, 2012 WL 1815622, *2-*3 (N.D. Cal. May 17, 2012) (“[S]ufficient service of process is a prerequisite to entry of default.”) (quoting Fisher v. Lynch, 531 F.Supp.2d 1253, 1269 n.12 (D. Kan. 2008)); Bonita Packing Co. V. O'Sullivan, 165 F.R.D. 610, 614 (C.D. Cal. 1995)(denying request for entry of default where plaintiffs had not properly served defendant).

         Rule 4(h) of the Federal Rules of Civil Procedure requires that “[u]nless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.” While Mr. Jones filed a declaration signed under penalty of perjury stating that Defendants were served, Mr. Jones as a party to this case cannot complete service and his declaration is insufficient proof of service. See Fed.R.Civ.P. 4(c)(1)(“Any person who is at least 18 years old and not a party may serve a summons and complaint.”)

         There being no indication that Defendants waived service of summons and there being no proper proof of service, the motion for entry of default will be denied.

         Pursuant to the federal statutes governing proceedings in forma pauperis and cases filed by prisoners, federal courts must engage in a preliminary screening of a case to assess the merits of the claims. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a). The Court has considered whether Mr. Jones's Amended Complaint is frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Mr. Jones has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. The Court finds that Mr. Jones's allegations “are sufficient to warrant ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012). Defendants Salmonsen and Stefalo must respond to the Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983, ” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a “reasonable opportunity to prevail on the merits, ” Defendant is required to respond).

         As set forth in the Court's March 8, 2019 Order, Montana State Prison and the Montana State Prison Custodian are not a proper defendants and should be dismissed. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)(absent waiver, neither a State nor an agency of the State acting under its control may “be subject to suit in federal court.”).

         Based on the foregoing, the Court issues the following:

         ORDER

         1. Mr. Jones's Declaration for Entry of Default (Doc. 19) is DENIED.

         2. Pursuant to Fed.R.Civ.P. 4(d), the Court requests Defendants Salmonsen and Stefalo to waive service of summons of the Amended Complaint by executing, or having counsel execute, the Waiver of Service of Summons. The Waiver must be returned to the Court within 30 days of the entry date of this Order as reflected on the Notice of Electronic Filing. If these Defendants choose to return the Waiver of Service of Summons, their answer or appropriate motion will be due within 60 days of the entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

         3. The Clerk of Court shall e-mail the following documents to Legal Counsel for the ...


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