Meador v. Aye et al

Filing 47

ORDER DENYING Plaintiff's 46 Motion for an Order Directing Defendants to File an Answer signed by Magistrate Judge Dennis L. Beck on 2/26/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GORDON D. MEADOR,

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Plaintiff,
v.
DR. K. AYE, et al.,

Case No. 1:14-cv-0006 DLB PC
ORDER DENYING PLAINTIFF’S MOTION
FOR AN ORDER DIRECTING
DEFENDANTS TO FILE AN ANSWER
[ECF No. 46]

Defendants.

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Plaintiff Gordon D. Meador (“Plaintiff”) is a state prisoner proceeding pro se in this civil
action pursuant to 42 U.S.C. § 1983.

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Plaintiff filed this action on January 2, 2014. On January 16, 2015, the Court screened the

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Complaint and determined that it failed to state a cognizable claim for relief. Plaintiff was granted

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leave to file an amended complaint. On February 11, 2015, counsel was appointed for Plaintiff for

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the limited purpose of drafting and filing a First Amended Complaint. On September 22, 2015,

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Plaintiff filed a First Amended Complaint. Counsel’s representation was thereafter discontinued and

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Plaintiff is now proceeding pro se. On December 9, 2015, the Court screened the First Amended

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Complaint. Plaintiff was directed to notify the Court whether he wished to proceed with the claims

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found cognizable by the Court or if he desired to file a Second Amended Complaint. On December

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17, 2015, Plaintiff notified the Court of his willingness to proceed with the cognizable claims. On
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December 23, 2015, the Court issued an order finding certain claims cognizable and dismissing
certain claims and defendants. The Court further issued an order directing the U.S. Marshals Service
to serve Defendants with the First Amended Complaint.
On February 25, 2016, Plaintiff filed the instant motion for a court order directing
Defendants to file an answer. Plaintiff complains that Defendants have not filed an answer within 21
days as required by court order. Plaintiff’s argument is not well-taken. The Court’s order of
December 23, 2015, directed the U.S. Marshals Service to serve Defendants within ten days by first
requesting a waiver of service. If a waiver of service is not returned by a defendant within sixty
days, then the Marshals Service is required to personally serve the defendants. Only after the
defendants have executed a waiver of service or are personally served are they required to file an
answer. In this case, a waiver of service has not been received by the Court and there is no
indication that any defendants have been personally served by the U.S. Marshals Service. Therefore,
no defendant is required to answer the complaint at this time.
Accordingly, Plaintiff’s motion for a court order directing Defendants to file an answer is
DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

February 26, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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