Hendon v. Baroya et al

Filing 80

ORDER for Defendant Hoppe to File Response to 18 Complaint within Twenty Days signed by Magistrate Judge Gary S. Austin on 7/26/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS HENDON,

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Plaintiff,
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vs.
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BAROYA, et al.,
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Defendants.
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____________________________________)

1:05-cv-01247-AWI-GSA-PC
ORDER FOR DEFENDANT HOPPE
TO FILE RESPONSE TO COMPLAINT
WITHIN TWENTY DAYS
(Doc. 18.)

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Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 30,

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2005. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on June 26, 2008,

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against defendants Baroya, Nguyet, Pham, Hoppe, Griffin, and Reidman (“Defendants”), for subjecting

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Plaintiff to cruel and unusual punishment in violation of the Eighth Amendment.1 (Doc. 18.) On

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September 19, 2009, defendants Baroya, Riedman, Nguyet, Griffin and Pham filed an Answer. (Doc.

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35.) Defendant Hoppe has not filed an answer to the complaint.

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Rule 12 of the Federal Rules of Civil Procedure provides that "[a] defendant must serve an

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answer within 21 days after being served with the summons and complaint; or if it has timely waived

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service under Rule 4(d), within 60 days after the request for a waiver was sent." Fed. R. Civ. P.

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12(a)(1)(A). If a motion is served under this rule and the court denies the motion, "the responsive

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pleading must be served within 14 days after notice of the court's action." Fed. R. Civ. P. 12(a)(4)(A).

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On December 13, 2010, defendant Hamilton was dismissed from this action based on Plaintiff’s failure to provide
sufficient information to effect service. (Doc. 67.)

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Defendant Hoppe waived service in this action on November 29, 2010. (Doc. 60.) Pursuant to

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the Waiver, defendant Hoppe was required to file "an answer or motion under Rule 12 . . . within 60

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days after 10/5/10." Id. On December 2, 2010, defendant Hoppe joined defendants’ motion to declare

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Plaintiff a vexatious litigant, to require Plaintiff to pay security, and to issue a pre-filing order against

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Plaintiff.2 (Docs. 54, 63.) On July 8, 2011, the Court granted the motion in part and denied the motion

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in part. (Doc. 70.) The Court granted the motion to declare Plaintiff a vexatious litigant but denied the

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motion to require Plaintiff to pay security and the motion to issue a pre-filing order against Plaintiff.

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(Id.) More than fourteen days have passed, and Defendant Hoppe has not filed a responsive pleading.

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Therefore, at this juncture, Defendant Hoppe shall be required to file a responsive pleading.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that within twenty (20) days from the date

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of service of this order, Defendant Hoppe shall file an answer or motion under Rule 12 in response to

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the Second Amended Complaint.

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IT IS SO ORDERED.

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Dated:
6i0kij

July 26, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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The motion was filed by defendants Baroya, Nguyet, Pham, Griffin, and Reidman on October 12, 2010. (Doc. 54.)

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