(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
29 | P a g e
D.Mont L.R. 12.1 Responding to Prisoner-Plaintiffs Waiver of Reply
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.
