Robinson v. Cate

Full title: ANDRE JAMAL ROBINSON, Plaintiff, v. MATTHEW CATE, et al., Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: May 22, 2013

2:11-cv-2555 MCE AC P (E.D. Cal. May. 22, 2013)

Opinion

ANDRE JAMAL ROBINSON, Plaintiff, v. MATTHEW CATE, et al., Defendants. No. 2:11-cv-2555 MCE AC P United States District Court, E.D. California. May 22, 2013

          ORDER

          ALLISON CLAIRE, Magistrate Judge.

         Plaintiff is a prisoner proceeding pro se in this civil action brought pursuant to 42 U.S.C. § 1983. Defendants waived service of the complaint, and filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Waivers of Service Returned Executed, Feb. 15, 2012 and March 7, 2012, ECF Nos. 15, 16, 17; Motion to Dismiss, Mar. 20, 2012, ECF No. 18.

         On February 26, 2013, the court granted defendants' motion to dismiss, dismissing the complaint as moot against defendant McDonald, and dismissing the complaint with leave to amend against defendants Cate and Guirbino. See Order, Feb. 26, 2012, ECF No. 35. On March 27, 2013, plaintiff filed an amended complaint against defendants Cate and Guirbino; however, to date, defendants Cate and Guirbino have not responded to the amended complaint.

         By order filed May 8, 2013, the court directed defendants to show cause why default should not be entered against them for failure to respond to the amended complaint. See Fed. R. Civ. Proc. 12(a)(4). Defendants have now responded, and advise the court that they have not responded to the amended complaint because the court has not screened it, as the defendants argue the Court is required to do under 28 U.S.C. § 1915A(b).

         In light of defendants' response, the undersigned will not recommend that default be entered against defendants; however, the undersigned will direct that defendants' response to the amended complaint shall be due within 21 days of the filing date of this order. Defendants have waived service, and are represented by counsel. If defendants believe that the amended complaint fails to state a claim, or is subject to dismissal for any other reason, the court will entertain a noticed motion for dismissal, or for whatever other relief defendants believe appropriate.

         Accordingly, IT IS HEREBY ORDERED that

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

         2. Defendants shall file their response to the amended complaint within 21 days of the filing date of this order. Defendants' failure to file a response shall result in a recommendation that the court enter default against the defendants.