ORDER REGARDING UNSERVED DEFENDANT; DENYING PLAINTIFF'S MOTION FOR ORDER DIRECTING DEFENDANTS TO FILE RESPONSIVE PLEADING

Re: Dkt. No. 28

HAYWOOD S. GILLIAM, JR., District Judge.

INTRODUCTION

Plaintiff, an inmate at California State Prison-Sacramento, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against officials and staff at Salinas Valley State Prison ("SVSP"), where he was previously incarcerated. On July 9, 2018, the Court screened plaintiff's amended complaint and found that it stated a cognizable Eighth Amendment claim of deliberate indifference to serious medical needs. Service was ordered on five defendants. On July 13, 2018, the summons for defendant Nurse Rodriqez was returned unexecuted with the following remark by the United States Marshal: "CDCR is unable to identify an employee with given last name." Docket No. 22. The other four defendants, L. Gamboa, K. Kumar, J. Lewis, and C. Watson, have been served and have filed a waiver of reply.

On July 19, 2018, the Court ordered plaintiff to either effect service on defendant Rodriqez or provide the Court with his current location such that the Marshal could affect service. Now before the Court is plaintiff's response to the Court's directions regarding defendant Rodriqez. Plaintiff has also filed a motion requesting a court order directing the defendants to file a responsive pleading to the amended complaint.

DISCUSSION

A. Unserved Defendant

Plaintiff has filed a notice providing the Court with the following additional information for the unserved defendant: (1) defendant's name is J. Rodriquez; (2) defendant is a licensed vocational nurse ("LVN"); and (3) defendant was employed at the SVSP C-Facility from June 2016 to January 2017. The Court will re-issue service pursuant to the instructions below.

B. Motion for Responsive Pleading

Plaintiff's motion for an order directing defendants L. Gamboa, K. Kumar, J. Lewis, and C. Watson to file an answer to his amended complaint is DENIED. Defendants "may waive the right to reply to any action brought by a prisoner . . . under section 1983 of this title or any other Federal law." 42 U.S.C. § 1997e(g)(1). Defendants L. Gamboa, K. Kumar, J. Lewis, and C. Watson have filed waivers of the right to reply, which was a permissible response under § 1997 e(g)(1) to plaintiff's amended complaint. Although "the 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," 42 U.S.C. § 1997e(g)(2), the Court declines to do so at this time. If the case gets beyond the summary judgment stage and moves closer to trial, if there will be a trial, the Court will on its own motion consider ordering defendants to file an answer to the amended complaint.

CONCLUSION

For the foregoing reasons, the Court orders as follows:

1. Plaintiff's motion for an order directing defendants to file a responsive pleading is DENIED.

2. The Clerk shall re-issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the first amended complaint in this matter (dkt. no. 16), all attachments thereto, a copy of the Court's July 9, 2018 screening order (dkt. no. 18), and a copy of this order on defendant LVN J. Rodriquez at Salinas Valley State Prison.

The Clerk is further directed to correct the spelling of defendant Rodriquez's name on the court docket by substituting "LVN J. Rodriquez" for "Rodriqez."

3. The Clerk shall send a copy of this order to the Litigation Coordinator at Salinas Valley State Prison, who is requested to file notice with the Court as to whether defendant LVN J. Rodriquez can been identified with the additional information provided by plaintiff as stated above within twenty-eight (28) days from the date this order is filed. If there is no such person, the Litigation Coordinator is requested to file notice whether a person with the last name "Rodriguez" matches the identifying information provided by plaintiff. If the defendant can be identified but is no longer at SVSP, the Litigation Coordinator is requested to provide to the Court any forwarding address information and last known address that is available within twenty-eight (28) days from the date of this order. A non-CDCR address should be provided under seal.

This order terminates Dkt. No. 28.

IT IS SO ORDERED.