Filed: May 26, 2016
Latest Update: May 26, 2016
Summary: ORDER G.R. SMITH , Magistrate Judge . On September 2, 2015, after preliminarily reviewing his Complaint pursuant to 28 U.S.C. 1915A, 2 the Court greenlit pro se plaintiff Dantonius Owens' 42 U.S.C. 1983 "lawsuit on the following claims: (1) a right to privacy claim against [Barbara] Prince, [Glendora] Birddell, and [Lawrence] Manker; (2) an excessive force claim against Manker; and (3) a retaliation claim against Birddell and [Jack] Koon. Doc. 16 at 13. It then directed the U.S. Mar
Summary: ORDER G.R. SMITH , Magistrate Judge . On September 2, 2015, after preliminarily reviewing his Complaint pursuant to 28 U.S.C. 1915A, 2 the Court greenlit pro se plaintiff Dantonius Owens' 42 U.S.C. 1983 "lawsuit on the following claims: (1) a right to privacy claim against [Barbara] Prince, [Glendora] Birddell, and [Lawrence] Manker; (2) an excessive force claim against Manker; and (3) a retaliation claim against Birddell and [Jack] Koon. Doc. 16 at 13. It then directed the U.S. Mars..
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ORDER
G.R. SMITH, Magistrate Judge.
On September 2, 2015, after preliminarily reviewing his Complaint pursuant to 28 U.S.C. § 1915A,2 the Court greenlit pro se plaintiff Dantonius Owens' 42 U.S.C. § 1983 "lawsuit on the following claims: (1) a right to privacy claim against [Barbara] Prince, [Glendora] Birddell, and [Lawrence] Manker; (2) an excessive force claim against Manker; and (3) a retaliation claim against Birddell and [Jack] Koon. Doc. 16 at 13. It then directed the U.S. Marshal to serve defendants, and instructed them that (1) they had a duty to avoid unnecessary service costs, and (2) defendants who fulfill that duty by timely waiving service receive an extended period "to answer the complaint." Id. at 13-14 (emphasis added). Service finally occurred over eight months later,3 and defendants returned waivers on May 17, 2016. See, e.g., doc. 21.
Because the Marshal mailed those service waivers on March 24, 2016, defendants had until May 24, 2016 to file their answers or dispositive motions. See Fed. R. Civ. P. 4(d)(3) (defendants have "60 days after the [waiver] request was sent" within which to "serve an answer"). Instead of answering — an action the Court's "greenlight" Order (doc. 16) implicitly required by outlining the deadline discount in rule 4(d)(3) — they have filed a "Waiver of Reply," in which they state that "[d]efendants will file a dispositive motion or an answer to the Complaint,4 pursuant to 42 U.S.C. § 1997e(g)(2),5 in the event that the court finds that the Plaintiff has a reasonably opportunity to prevail on the merits." Doc. 22 at 1 (filed May 24, 2016).
The court already so found when it greenlit several of Owens' claims. See doc. 16 at 13. Again, that Order (1) expressly allowed claims to proceed against all defendants; (2) directed service of the Complaint; and (3) implicitly required defendants to answer. Id. at 13-14. Put differently, "[d]efendants were ordered by this Court to respond to the amended complaint, doc. [15] . . . but failed to do so." Halpin v. David, 2008 WL 5663943 at * 2 (N.D. Fla. Dec. 8, 2008); id. ("While § 1997e(g) allows a Defendant to wait to respond until directed to do so, `without being deemed to have admitted the complaint's allegations,'" it is not accepted that § 1997e(g) permits a Defendant to ignore a court order directing a response.").
Nevertheless, the Court will not penalize defendants for their oversight since no prejudice will accrue from a further brief delay in their replies. All defendants, however, must file answers or dispositive motions no later than 14 days from the date this Order is served, or otherwise they will be in default.
SO ORDERED.
