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Mel Tyrone Edward v. D. Swingle

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 8, 2011

MEL TYRONE EDWARD,
PLAINTIFF,
v.
D. SWINGLE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendant Medina's "Notice of Waiver of Answer" pursuant to 42 U.S.C. § 1997e(g) (Doc. 30); and (2) the United States Marshal's request for reimbursement of service costs (Doc. 34).

42 U.S.C. § 1997e(g)(1) provides that a defendant in a prisoner civil rights action may waive the right to reply to the complaint. Section 1997e(g)(2), however, allows the court to require a response to the complaint where it has found that the plaintiff has a reasonable opportunity to prevail on the merits. Such is the case here. As outlined in the court's May 17, 2011, order, plaintiff has a reasonable opportunity to prevail against defendant Medina. On June 16, 2011, the court directed the United States Marshal to serve the complaint and ordered defendants to file a response to the complaint pursuant to Federal Rule of Civil Procedure 12(a). In light of this procedural history, the court will disregard defendant Medina's notice of waiver of answer because the court has already directed defendant Medina to respond to the complaint.

The United States Marshal has requested reimbursement of the costs of service on defendant Medina. Defendant Medina will be directed to show cause in writing why this request should not be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendant Medina's "Notice of Waiver of Answer" (Doc. 30) is disregarded;

2. Defendant Medina shall file a response to the complaint within 30 days of the date of this order; and

3. 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.

20111208

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