Tyler v. Alameida, et al

Filing 168

ORDER VACATING 123 the Entry of Default; ORDER RECALLING the 163 Order Directing Service on Defendant Smith; ORDER ADDRESSING Plaintiff's 167 Motion of Objection and DENYING Plaintiff's 166 Motion Requesting USM-285 Forms and Summonses; ORDER DIRECTING Defendant Smith to File a Responsive Pleading within Twenty Days signed by Magistrate Judge Barbara A. McAuliffe on 1/12/2012. (Sant Agata, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

ELONZA JESSE TYLER,

10
11
12
13
14
15

Plaintiff,

CASE NO. 1:-04-cv–06638-LJO-BAM PC
ORDER VACATING THE
DEFAULT (ECF No. 123)

ENTRY

OF

v.
O R D E R R ECALLING T H E O R D E R
DIRECTING SERVICE ON DEFENDANT
SMITH (ECF No. 163)

ALAMEIDA, et al.,
Defendants.

ORDER ADDRESSING PLAINTIFF’S
MOTION OF OBJECTION AND DENYING
PLAINTIFF’S MOTION REQUESTING USM285 FORMS AND SUMMONSES (ECF Nos.
166, 167)

16
17

ORDER DIRECTING DEFENDANT SMITH
TO FILE A RESPONSIVE PLEADING
/ WITHIN TWENTY DAYS

18
19

Plaintiff Elonza Jesse Tyler is a state prisoner proceeding pro se and in forma pauperis in

20

this civil rights action pursuant to 42 U.S.C. § 1983. Following remand by the Ninth Circuit of

21

Appeal, this action is proceeding on the second amended complaint, filed August 19, 2010, against

22

Defendant Smith for deliberate indifference in violation of the Eighth Amendment.

23

On December 20, 2011, an order issued denying Plaintiff’s motion for a scheduling order and

24

directing the parties to file motions pursuant to Federal Rule of Civil Procedure 55. On that same

25

date Defendant Smith filed an objection stating that the second amended complaint was never

26

approved for service and therefore Defendant Smith is not in default. Following a review of the

27

record, the Court determined that the second amended complaint had not yet been served on

28

Defendant Smith. On December 29, 2011, an order issued directing the United States Marshall to
1

1

serve the second amended complaint on Defendant Smith.

2

On January 9, 2012, Plaintiff filed a motion requesting two USM-285 forms and two

3

summons and a motion of objection to the order directing service of the complaint. Plaintiff argues

4

that he is being denied an opportunity to respond to motions filed by Defendant, however Defendant

5

has not filed any motions in this action since the remand by the Ninth Circuit. The Ninth Circuit

6

remanded only as to Defendant Smith and he is the only defendant remaining in this action.

7

While Plaintiff claims that Defendant Smith is still in default, the filing of an amended

8

complaint supercedes the original complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th

9

Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Upon the filing of the second

10

amended complaint the first amended complaint no longer serves any function in the case.

11

Additionally, in deciding Plaintiff’s motion for entry of default judgment, the Court found that

12

Plaintiff’s complaint failed to state a cognizable claim against Defendant Smith and the first

13

amended complaint was dismissed. (Findings and Recommendations 2-4, ECF No. 135; Order

14

Adopting, ECF No 143). Therefore, the entry of default, entered February 9, 2010, is vacated. See

15

Alan Neuman Productions, Inc. V. Albright, 862 F.2d 1388, 1393 (9th Cir. 1988) (reversing entry

16

of default judgment when the complaint fails to meet the pleading standard); Chilko v. Lorren, No.

17

1:07-cv-01316-OWW-GSA, 2008 WL 4468995, *2 (E.D. Cal. Sept. 30, 2008).

18

The Court is required to screen complaints brought by prisoners seeking relief against a

19

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

20

Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

21

“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

22

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

23

Until such time as the court finds that the complaint has stated a cognizable claim and orders a

24

responsive pleading Defendant is under no obligation to respond to the complaint. In this instance,

25

Plaintiff’s second amended complaint was dismissed for failure to state a cognizable claim and the

26

Ninth Circuit remanded the action as to Defendant Smith.

27

Upon reviewing the docket and the arguments of the parties, the Court finds that service of

28

the second amended complaint is unnecessary as Defendant Smith was previously served and has
2

1

been making appearances in this action as stated by Plaintiff in his motion. Accordingly, the order

2

directing service issued December 29, 2011, is vacated, and Defendant Smith is ordered to file a

3

responsive pleading within twenty days.

4

Based on the foregoing, it is HEREBY ORDERED that:

5

1.

The entry of default, entered February 9, 2010, is VACATED;

6

2.

Plaintiff’s motion requesting USM 285 forms and summonses is DENIED as moot;

7

3.

Defendant is ordered to file a responsive pleading within twenty days from the date

8
9

of service of this order;
4.

10
11

December 29, 2011, is RECALLED; and
5.

12
13
14

The order directing the United States Marshal to serve Defendant Smith, issued

The Clerk’s Office is directed to serve a copy of this order on the United States
Marshals Service in Sacramento.

IT IS SO ORDERED.
Dated:
10c20k

January 12, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3