Craft v. Washington State Department of Corrections et al

Filing 12

ORDER DIRECTING SERVICE by E-Service on 1/31/17 to Defendants & AG signed by Judge David W. Christel. (MET) cc: plaintiff w/pro se sheet

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 7 LOEWEN CRAFT, Plaintiff, 8 9 CASE NO. 2:16-CV-01550-RJB-DWC ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT v. 10 WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., 11 Defendants. 12 13 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff Loewen Craft 14 is proceeding with this action pro se and in forma pauperis. See Dkt. 4, 5. On October 13, 2016, 15 the Court reviewed and screened Plaintiff’s Complaint under 28 U.S.C. § 1915A. Dkt. 6. The 16 Court declined to serve the Complaint because several of the claims appeared barred by the statute 17 of limitations. Id. The Court directed Plaintiff to file an amended complaint and show equitable 18 tolling is warranted for any claim which occurred on or before October 3, 2013. 1 19 20 21 22 23 1 The Court previously instructed Plaintiff to show equitable tolling for any claim occurring on or before September 29, 2013. See Dkt. 6. This date was incorrectly calculated based on the date Plaintiff signed the Complaint, not the date she initiated this action. See Dkt. 6. As Plaintiff was not in custody when she initiated this lawsuit, her Complaint is deemed filed the date it was received by the Court, not the date it was signed. See e.g. Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th Cir. 2009) (a prisoner’s § 1983 complaint is deemed filed at the time he delivers it to a prison official for forwarding to the court clerk). There are no claims alleged between September 29, 2013 and October 3, 2013, and therefore Plaintiff was not prejudiced by this miscalculation. See Dkt. 5. Proceeding forward, Plaintiff must show equitable tolling for any claim which occurred on or before October 3, 2013. ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT - 1 1 Plaintiff filed a “Response to Show Cause – Tolling Statute” on January 12, 2017, asserting 2 she is entitled to equitable tolling because she is disabled and did not know how to proceed with 3 this legal action. Dkt. 11. 2 The Court finds sua sponte dismissing claims in the Complaint as barred 4 by the statute of limitations is not appropriate at this time. However, the Court does not make a 5 finding that equitable tolling is warranted in this case. Rather, Defendants may assert a statute of 6 limitations defense, and any other defense, in a properly filed responsive pleading. 7 Accordingly, the Court, having reviewed Plaintiff’s Complaint, hereby ORDERS as 8 follows: 9 10 (1) Service by Clerk The Clerk is directed to send the following to the named defendants by e- mail: a copy of 11 the complaint (Dkt. 5), a copy of this Order, two copies of the notice of lawsuit and request for 12 waiver of service of summons, and a waiver of service of summons. 13 (2) 14 Defendant(s) shall have thirty (30) days within which to return the enclosed waiver of Response Required 15 service of summons. A defendant who timely returns the signed waiver shall have sixty (60) 16 days after the date designated on the notice of lawsuit to file and serve an answer to the 17 complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure. 18 A defendant who fails to timely return the signed waiver will be personally served with a 19 summons and complaint, and may be required to pay the full costs of such service, pursuant to 20 Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has been personally 21 22 23 2 Plaintiff did not file an amended complaint. The Court notes there are deficiencies in the Complaint. See Dkt. 6. However, the Court finds service of the Complaint is appropriate at this time and notes Defendants may raise any defenses to the Complaint they deem proper. ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT - 2 1 served shall file an answer or motion permitted under Rule 12 within thirty (30) days after 2 service. 3 (3) 4 All attorneys admitted to practice before this Court are required to file documents Filing and Service by Parties, Generally 5 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, 6, for a detailed description of the requirements for filing via CM/ECF. 7 All non-attorneys, such as pro se parties and/or prisoners, may continue to file a paper original 8 with the Clerk. All filings, whether filed electronically or in traditional paper format, must 9 indicate in the upper right hand corner the name of the magistrate judge to whom the document 10 is directed. 11 For any party filing electronically, when the total of all pages of a filing exceeds fifty 12 (50) pages in length, a paper copy of the document (with tabs or other organizing aids as 13 necessary) shall be delivered to the Clerk’s Office for chambers. The chambers copy must be 14 clearly marked with the words “Courtesy Copy of Electronic Filing for Chambers.” 15 Any document filed with the Court must be accompanied by proof that it has been served 16 upon all parties that have entered a notice of appearance in the underlying matter. 17 (4) 18 Any request for court action shall be set forth in a motion, properly filed and served. Motions, Generally 19 Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a 20 part of the motion itself and not in a separate document. The motion shall include in its caption 21 (immediately below the title of the motion) a designation of the date the motion is to be noted for 22 consideration upon the Court’s motion calendar. 23 ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT - 3 1 Stipulated and agreed motions, motions to file over-length motions or briefs, motions for 2 reconsideration, joint submissions pursuant to the option procedure established in LCR 37(a)(2), 3 motions for default, requests for the clerk to enter default judgment, and motions for the court to 4 enter default judgment where the opposing party has not appeared shall be noted for 5 consideration on the day they are filed. See LCR 7(d)(1). All other non-dispositive motions 6 shall be noted for consideration no earlier than the third Friday following filing and service of the 7 motion. See LCR 7(d)(3). All dispositive motions shall be noted for consideration no earlier 8 than the fourth Friday following filing and service of the motion. Id. 9 For electronic filers, all briefs and affidavits in opposition to either a dispositive or non- 10 dispositive motion shall be filed and served not later than 11:59 p.m. on the Monday 11 immediately preceding the date designated for consideration of the motion. If a party (i.e. a pro 12 se litigant and/or prisoner) files a paper original, that opposition must be received in the Clerk’s 13 office by 4:30 p.m. on the Monday preceding the date of consideration. 14 The party making the motion may file and serve, not later than 11:59 p.m. (if filing 15 electronically) or 4:30 p.m. (if filing a paper original with the Clerk’s office) on the date 16 designated for consideration of the motion, a reply to the opposing party’s briefs and affidavits. 17 (5) 18 Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil Motions to Dismiss and Motions for Summary Judgment 19 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 20 Procedure should acquaint themselves with those rules. As noted above, these motions shall be 21 noted for consideration no earlier than the fourth Friday following filing and service of the 22 motion. 23 ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT - 4 1 Defendants filing motions to dismiss or motions for summary judge are advised that they 2 MUST serve Rand and Wyatt notices concurrently with motions to dismiss and motions for 3 summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of 4 what is required of them in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 941 5 (9th Cir. 2012). The Ninth Circuit has set forth model language for such notices: 6 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 7 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact – that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. 8 9 10 11 12 13 14 15 16 Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added); see Wyatt v. Terhune, 17 315 F.3d 1108, 1120 n.14 (9th Cir. 2003) (extending the fair notice requirement to motions to 18 dismiss for failure to exhaust administrative remedies). 19 Defendants who fail to file and serve the required Rand and Wyatt notices on plaintiff 20 may have their motion stricken from the Court’s calendar with leave to re-file. 21 (6) 22 No direct communication is to take place with the District Judge or Magistrate Judge with Direct Communications with District Judge or Magistrate Judge 23 regard to this case. All relevant information and papers are to be directed to the Clerk. ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT - 5 1 (7) The Clerk is directed to send copies of this Order and of the Court’s pro se 2 instruction sheet to plaintiff. The Clerk is further directed to send a copy of this Order and a 3 courtesy copy of the complaint to the Washington State Attorney General’s Office by e-mail. 4 Dated this 31st day of January, 2017. 6 A 7 David W. Christel United States Magistrate Judge 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT - 6

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