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Nichols v. Nicholson

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


June 8, 2006

FRANKIE NICHOLS, PLAINTIFF,
v.
R. JAMES NICHOLSON, DEFENDANT.

The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge

ORDER

This matter is before the Court on the Motion for Entry of Default filed by the Plaintiff, Frankie Nichols, on May 15, 2006 (Doc. 9). For the reasons set forth below, the motion is DENIED.

BACKGROUND

The plaintiff filed a complaint on November 3, 2005. He also sought to proceed in forma pauperis and was granted that status on December 8, 2005. Pursuant to the December 8, 2005 Order, the United States Marshals Service was directed to serve a copy of the complaint and summons on the named defendant, R. James Nicholson, the Secretary of the Department of Veteran's Affairs. A process receipt and return subsequently was filed by the Clerk on February 15, 2006.

On April 27, 2006, the Clerk issue a notice of impending dismissal as the defendant had failed to answer and the plaintiff had failed to seek an entry of default. The plaintiff now seeks an entry of default.

DISCUSSION

The plaintiff is suing her employer for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. While the named defendant, R. James Nicholson, is the Secretary of the Department of Veterans Affairs, it appears that the plaintiff's employer is the department itself. Federal Rule of Civil Procedure 4(i) provide for service on the United States, its agencies and employees. Not only must summons and a copy of the complaint be served on the employee/agency itself (which appears to be accomplished), but also on the United States Attorney and the Attorney General of the United States. There is no indication in the docket sheet that either the United States Attorney or the Attorney General have been served as required by the Rules. As there is a defect in service, an entry of default should not be made.

As the plaintiff is proceeding in forma pauperis, the following is hereby ORDERED:

1. The Clerk isdirected to prepare summons for service on the United States Attorney for the Southern District of Illinois (9 Executive Drive, Suite 300 Fairview Heights, IL 62208), and the Attorney General of the United States (950 Pennsylvania Ave. NW, Room 4400, Washington D. C. 20530).

2. The Clerk shall forward the summons, this Order, and sufficient copies of the complaint to the United States Marshal for service.

3. The United States Marshal is directed to serve the summons and complaint on the United States Attorney for the Southern District of Illinois and the Attorney General of the United States in the manner specified by Rule 4(i)(1) of the Federal Rules of Civil Procedure.

4. The United States Marshal shall submit for filing the process receipt and return as soon as is practicable.

CONCLUSION

For the reasons set forth above, the Motion for Entry of Default filed by the Plaintiff, Frankie Nichols, on May 15, 2006 is DENIED (Doc. 9). Additional service shall be effected as outlined above.

20060608

© 1992-2006 VersusLaw Inc.



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