Robinson v. Kate et al

Filing 39

ORDER signed by Magistrate Judge Allison Claire on 5/21/2013 DISCHARGING the 5/8/2013 order to show cause; and defendants shall file their response to the amended complaint within 21 days.(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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ANDRE JAMAL ROBINSON,
Plaintiff,

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vs.
MATTHEW CATE, et al.
Defendants.

ORDER
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No. 2:11-cv-2555 MCE AC P

Plaintiff is a prisoner proceeding pro se in this civil action brought pursuant to 42

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U.S.C. § 1983. Defendants waived service of the complaint, and filed a motion to dismiss

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pursuant to Federal Rule of Civil Procedure 12(b)(6). See Waivers of Service Returned

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Executed, Feb. 15, 2012 and March 7, 2012, ECF Nos. 15, 16, 17; Motion to Dismiss, Mar. 20,

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2012, ECF No. 18.

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On February 26, 2013, the court granted defendants’ motion to dismiss,

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dismissing the complaint as moot against defendant McDonald, and dismissing the complaint

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with leave to amend against defendants Cate and Guirbino. See Order, Feb. 26, 2012, ECF No.

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35. On March 27, 2013, plaintiff filed an amended complaint against defendants Cate and
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Guirbino; however, to date, defendants Cate and Guirbino have not responded to the amended

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complaint.

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By order filed May 8, 2013, the court directed defendants to show cause why

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default should not be entered against them for failure to respond to the amended complaint. See

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Fed. R. Civ. Proc. 12(a)(4). Defendants have now responded, and advise the court that they have

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not responded to the amended complaint because the court has not screened it, as the defendants

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argue the Court is required to do under 28 U.S.C. § 1915A(b).

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In light of defendants’ response, the undersigned will not recommend that default

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be entered against defendants; however, the undersigned will direct that defendants’ response to

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the amended complaint shall be due within 21 days of the filing date of this order. Defendants

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have waived service, and are represented by counsel. If defendants believe that the amended

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complaint fails to state a claim, or is subject to dismissal for any other reason, the court will

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entertain a noticed motion for dismissal, or for whatever other relief defendants believe

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appropriate.

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Accordingly, IT IS HEREBY ORDERED that

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1. The court’s May 8, 2013 order to show cause is discharged; and

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2. Defendants shall file their response to the amended complaint within 21 days

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of the filing date of this order. Defendants’ failure to file a response shall result in a

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recommendation that the court enter default against the defendants.

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DATED: May 21, 2013

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:rb

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robi2555.osc(2)

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