Edward v McDonald et al

Filing 36

ORDER signed by Magistrate Judge Craig M. Kellison on 12/8/2011 ORDERING that defendant Medina's 30 "Notice of Waiver" is DISREGARDED; defendant Medina shall file a response to the complaint within 30 days; and defendant Medina shall SHOW CAUSE in writing, within 30 days, why the USM's 34 request should not be granted.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MEL TYRONE EDWARD,
Plaintiff,

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No. CIV S-10-0979-JAM-CMK-P

vs.

ORDER

D. SWINGLE, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) defendant Medina’s “Notice of Waiver of

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Answer” pursuant to 42 U.S.C. § 1997e(g) (Doc. 30); and (2) the United States Marshal’s request

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for reimbursement of service costs (Doc. 34).

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42 U.S.C. § 1997e(g)(1) provides that a defendant in a prisoner civil rights action

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may waive the right to reply to the complaint. Section 1997e(g)(2), however, allows the court to

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require a response to the complaint where it has found that the plaintiff has a reasonable

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opportunity to prevail on the merits. Such is the case here. As outlined in the court’s May 17,

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2011, order, plaintiff has a reasonable opportunity to prevail against defendant Medina. On June

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16, 2011, the court directed the United States Marshal to serve the complaint and ordered
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defendants to file a response to the complaint pursuant to Federal Rule of Civil Procedure 12(a).

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In light of this procedural history, the court will disregard defendant Medina’s notice of waiver of

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answer because the court has already directed defendant Medina to respond to the complaint.

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The United States Marshal has requested reimbursement of the costs of service on

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defendant Medina. Defendant Medina will be directed to show cause in writing why this request

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should not be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendant Medina’s “Notice of Waiver of Answer” (Doc. 30) is

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Defendant Medina shall file a response to the complaint within 30 days of

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disregarded;

the date of this order; and
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Defendant Medina shall show cause in writing, within 30 days of the date

of this order, why the United States Marshal’s request (Doc. 34) should not be granted.

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DATED: December 8, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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