United States District Court, D. Montana, Helena Division
JEROMEY G. JONES, Plaintiff,
MONTANA STATE PRISON, JIM SALMONSEN, and TERRIE STEFALO,  Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston, United States Magistrate Judge.
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.)
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
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).
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
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.
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).
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.”).
on the foregoing, the Court issues the following:
Jones's Declaration for Entry of Default (Doc. 19) is
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).
Clerk of Court shall e-mail the following documents to Legal
Counsel for the ...