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Richardson v. Ortiz

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 23, 2009

PATRICK RICHARDSON, PLAINTIFF,
v.
D. ORTIZ, DEFENDANT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING DEFENDANT ORTIZ TO FILE REPLY TO SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS

(Doc. 85.)

Patrick Richardson ("Plaintiff") is a prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on the second amended complaint, filed July 3, 2007, against defendant D. Ortiz ("Defendant") for denial of access to the courts. (Doc. 85.) On February 6, 2009, Defendant filed a Waiver of Reply pursuant to 42 U.S.C. § 1997e(g), waiving his right to file a reply to plaintiff's complaint. (Doc. 104.)

Pursuant to 42 U.S.C. § 1997e(g)(1), "any defendant may waive the right to reply to any action brought by a prisoner ... under section 1983." However, 42 U.S.C. § 1997e(g)(2) provides that "[t]he court may require any defendant to reply to a complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits."

Under the Prison Litigation Reform Act ("PLRA") the court has a statutory duty to screen complaints in cases such as this and dismiss any claims that fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A. In this case, the screening function was performed by the court and an order finding that Plaintiff stated a cognizable claim for denial of access to the courts against Defendant issued on December 19, 2007. (Doc. 90.) As such, the court determined that Plaintiff has a reasonable opportunity to prevail on the merits. Therefore, Defendant shall be required at this time to file a reply to the second amended complaint.

Accordingly, within thirty (30) days of the date of service of this order, Defendant Ortiz must file a reply to the second amended complaint, which was filed by Plaintiff in this action on July 3, 2007.

IT IS SO ORDERED.

20090223

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