ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a civil detainee, proceeding pro se, in this civil rights action brought pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). This order addresses plaintiff's request for leave to amend the complaint and plaintiff's request for "sanctions and ruling." (ECF Nos. 12 & 14.)

Plaintiff's Request for Leave to Amend

Plaintiff filed his original complaint in this action on February 17, 2015. (ECF No. 1.) On August 21, 2015, the court found that service was appropriate for defendant Cornez. (ECF No. 8.) Plaintiff submitted the required service documents, and on September 8, 2015, the court directed the United States Marshal to serve process on defendant Cornez. (ECF No. 10.) On September 11, 2015, plaintiff filed a request for leave to file an amended complaint, along with a proposed amended complaint. (ECF Nos. 12 & 12-1.)

Under Rule 15(a), a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995). When plaintiff filed his first and only request for leave to amend the complaint, defendant Cornez had not yet been served with the complaint.1 Accordingly, plaintiff's timely request for leave to amend will be granted nunc pro tunc, and this action shall proceed on the First Amended Complaint (FAC), ECF No. 12-1. Because defendant Cornez has already filed a motion to dismiss the FAC, see ECF No. 19, there is no need for plaintiff to serve the FAC on defendant.2

Plaintiff's Request for Sanctions and Default Judgment Plaintiff also filed a "request for sanctions and ruling." (ECF No. 14.) In his motion, filed

January 14, 2016, plaintiff requests that the court impose sanctions on defendant Cornez for failure to respond to the complaint within thirty days of the "court's order."3 (Id. at 1.) Plaintiff asserts that because defendant did not respond to the complaint, the court should deem the matter submitted, address the merits of his complaint, and grant the requested injunctive relief. (See id.) In light of plaintiff's request, the court construes plaintiff's motion as a request for an entry of default and default judgment against defendant Cornez.

Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, "A defendant must serve an answer within 21 days after being served with the summons and complaint; or if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent." Fed. R. Civ. P. 12(a) (1)(A). Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or otherwise defend an action after being properly served with a summons and complaint, a default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.

In the instant case, the record reflects that defendant Cornez opted not to waive service under Rule 4(d). Thus, defendant was personally served by the United States Marshal on April 28, 2016. (See ECF No. 15.) On May 19, 2016, defendant filed a timely motion to dismiss the First Amended Complaint under Rule 12(b). (ECF No. 19.) Because defendant's motion to dismiss was timely filed before an answer was due, see Rule 12(a)(1), the court finds no evidence that defendant Cornez failed to plead or otherwise defend this action. Therefore, plaintiff is not entitled to an entry of default or default judgment against defendant Cornez. For the same reasons, sanctions based on defendant's alleged failure to respond to the complaint are unwarranted. Plaintiff's motion for "sanctions and ruling" will therefore be denied.

In accordance with the above, IT IS HEREBY ORDERED that: