Local Rule 12.1: Responding to Prisoner-Plaintiffs B Waiver of Reply

12.1 Responding to Prisoner-Plaintiffs B Waiver of Reply

(a) Definition of "Prisoner-Plaintiff." Regardless of whether the person is represented by counsel or appears pro se, any plaintiff who is incarcerated or detained in any facility, and who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program, is a "prisoner-plaintiff" within the meaning of this rule, provided the person is so incarcerated or detained on the date of service of the complaint.

(b) Waiver of Reply Not Appropriate. As to all plaintiffs not described by the terms of subsection (a), this rule does not apply and the defendant must timely file an answer or other appropriate motion, pursuant to Fed. R. Civ. P. 8 and 12.

(c) Timely Filing of Waiver of Reply; Defenses Preserved. When a prisoner-plaintiff serves the complaint before the court has ordered either service or a response to the complaint, any defendant may file a waiver of reply, pursuant to 42 U.S.C. § 1997e(g), within the time set forth in Fed. R. Civ. P. 12(a) or 81(c)(2), in lieu of an answer or other appropriate motion. Timely filing of a waiver of reply preserves the defendant's ability to raise all defenses set forth in Fed. R. Civ. P. 12 in a subsequent answer or motion, pursuant to the terms of that rule.

(d) Entry of Default and Default Judgment. Failure to timely file a waiver of reply, an answer, or other appropriate motion in response to a complaint by a prisoner-plaintiff may result in entry of default and default judgment pursuant to Fed. R. Civ. P. 55. Pursuant to Fed. R. Civ. P. 55(b)(2), default judgment may be granted against a defendant who has filed a waiver of reply but fails to file an answer or other appropriate motion when ordered to do so.

(e) Findings Implicit in Court's Order for Service or Response. Regardless of whether the order so states, the court's ordering of service or of a response to the complaint is deemed a finding that the plaintiff has a reasonable opportunity to prevail on the merits, within the meaning of 42 U.S.C. § 1997e(g)(2), and that the complaint is not, on its face, frivolous or malicious, and that it does not seek solely monetary relief against a defendant who is immune from such relief, all within the meaning of 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). If the court has ordered service, or if the court has ordered a response to the complaint, filing of a waiver of reply in lieu of an answer or other appropriate motion is not permitted and may result in the entry of default and/or default judgment.