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Evans v. Daly

United States District Court, D. Montana, Butte Division

June 22, 2018

ANTHONY L. EVANS, Plaintiff,
v.
SEAN DALY and ERIN DIEHL, Defendants.

          ORDER

          Jeremiah C. Lynch United States Magistrate Judge.

         Order Plaintiff Anthony Evans filed a response to the Court's May 10, 2018 Order clarifying his claims against the named Defendants. (Doc. 8.) The Court has considered whether Evans's Complaint (Doc. 2) is frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Evans has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. Defendants must respond to the Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983, ” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a “reasonable opportunity to prevail on the merits, ” Defendant is required to respond).

         Based on the foregoing, the Court issues the following:

         ORDER

         1. Pursuant to Fed.R.Civ.P. 4(d), the Court will request Defendants to waive service of summons of the Complaint by executing, or having counsel execute, the Waiver of Service of Summons. The Waiver must be returned to the Court within 30 days of the entry date of this Order as reflected on the Notice of Electronic Filing. If Defendants choose to return the Waiver of Service of Summons, their answer or appropriate motion will be due within 60 days of the entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

         2. The Clerk of Court shall mail the following documents to:

Sean Daly Erin Diehl Bozeman Adult Probation and Parole 2273 Boot Hill Ct #130 Bozeman, MT 59715
* Complaint (Doc. 1);
* Order dated May 10, 2018 (Doc. 6);
* May 21, 2018 Response to Order (Doc. 8);
* this Order;
* a Notice of Lawsuit & Request to Waive Service of Summons; and
* a Waiver of Service of Summons.

         Counsel for Defendants must file a “Notice of Appearance” as a separate document at the time an Answer or Rule 12 ...


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