Petillo v. Galliger et al

Filing 24

ORDER denying Plaintiff's 23 Motion for court to direct Defendants to file answer signed by Magistrate Judge Gary S. Austin on 4/22/2019. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISAIAH J. PETILLO,

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Plaintiff,

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vs.
GALLIGER, et al.,

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1:18-cv-00217-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION FOR COURT TO DIRECT
DEFENDANTS TO FILE ANSWER
(ECF No. 23.)

Defendants.

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I.

BACKGROUND

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Isaiah J. Petillo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On February 12, 2018, Plaintiff filed

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the Complaint commencing this action. (ECF No. 1.) The court screened the Complaint and

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issued an order on October 31, 2018, dismissing the Complaint for violation of Rule 18, with

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leave to amend. (ECF No. 16.) On November 19, 2018, Plaintiff filed the First Amended

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Complaint. (ECF No. 17.)

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On April 17, 2019, Plaintiff filed a motion for the court to direct defendants to file an

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answer to the First Amended Complaint. (ECF No. 23.)

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II.

SCREENING AND SERVICE OF PROCESS

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It is not time for defendants to answer the First Amended Complaint in this case. First,

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the court is required by law to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity, such as the instant action

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brought pursuant to 42 U.S.C. ' 1983. 28 U.S.C. ' 1915A(a). The court must dismiss a

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complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or

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malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief.

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Plaintiff’s First Amended Complaint awaits the court’s requisite screening.

28 U.S.C. ' 1915A(b)(1),(2).

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Second, the defendants have not been served with the First Amended Complaint. With

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respect to service, the court will, sua sponte, direct the U.S. Marshal to serve the complaint

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only after the court has screened the complaint and determined that it contains cognizable

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claims for relief against the named defendants. After defendants have been served with a

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summons and complaint, it is defendants’ own obligation to respond to the complaint pursuant

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to federal rules, without direction from the court.
Based on these facts, Plaintiff’s motion for the court to direct defendants to file an

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answer to the First Amended Complaint shall be denied.

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III.

CONCLUSION

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In light of the foregoing, it is HEREBY ORDERED that Plaintiff’s motion for the

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court to direct defendants to file an answer to the First Amended Complaint, filed on April 17,

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2019, is DENIED.

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IT IS SO ORDERED.
Dated:

April 22, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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