Davis et al v. Hayes et al

Filing 36

ORDER DIRECTING SERVICE OF AMENDED COMPLAINT by Hon. Brian A Tsuchida. Served by 1st Class Mail on 6/14/2017 to Gorman; McKindry; Bliss; Elerick. (cc: King County Prosecutor's Office)**5 PAGE(S), PRINT ALL**(Keith Davis, Prisoner ID: 216001169)(ST)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KEITH ADAIR DAVIS,

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Plaintiff,

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ORDER DIRECTING SERVICE OF
AMENDED COMPLAINT

v.
WILLIAM HAYES, et al.,

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CASE NO. C16-1709-RSM-BAT

Defendants.
On April 14, 2017, the Court dismissed all of plaintiff’s claims except his claim that
Defendants Gorman, McKindry, Bliss, and Elerick used excessive force against him in August
and September 2014 and August 2016. Dkt. 30. The Court’s Order was sent to these
defendants, but it is not clear whether they were properly served with the Amended Complaint.
Accordingly, it is ORDERED that the Amended Complaint (Dkt. 20) shall be served on
defendants Gorman, McKindry, Bliss, and Elerick only and these defendants shall be required to
file an answer only as to the excessive force claims:
(1)

Service by Clerk

The Clerk is directed to send the following to defendants Gorman, McKindry, Bliss, and
Elerick by first class mail: copies of plaintiff’s amended complaint (Dkt. 20) and the Court’s

ORDER DIRECTING SERVICE OF
AMENDED COMPLAINT - 1

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Order (Dkt. 30), two copies of the Notice of Lawsuit and Request for Waiver of Service of

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Summons, a Waiver of Service of Summons, and a return envelope, postage prepaid, addressed

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to the Clerk’s office. The Clerk shall also send a courtesy copy of the above-named documents

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and of this Order to the King County Prosecutor’s Office, by first-class mail.

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(2)

Response Required

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Defendants shall have 30 days within which to return the enclosed waiver of service of

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summons. Any defendant who timely returns the signed waiver shall have 60 days after the date

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designated on the notice of lawsuit to file and serve an answer to the complaint or a motion

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permitted under Rule 12 of the Federal Rules of Civil Procedure.

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Any defendant who fails to timely return the signed waiver will be personally served with

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a summons and complaint, and may be required to pay the full costs of such service, pursuant to

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Rule 4(d)(2). A defendant who has been personally served shall file an answer or motion

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permitted under Rule 12 within 30 days after service.

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Defendants MUST serve a Rand notice concurrently with motions to dismiss based

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on a failure to exhaust and motions for summary judgment so that pro se prisoner plaintiffs

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will have fair, timely and adequate notice of what is required of them in order to oppose

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those motions. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). The Ninth Circuit set forth

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model language for such notices:

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A motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure will, if granted, end your case.

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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
ORDER DIRECTING SERVICE OF
AMENDED COMPLAINT - 2

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.

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Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (emphasis added).
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Defendants who do not file and serve, in a separate document, the required Rand
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notice will face (a) immediate denial of their motions with leave to refile and (b) possible
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monetary sanctions.
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(3)

Filing and Service by Parties Generally

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All attorneys admitted to practice before this Court are required to file documents
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electronically via the Court’s CM/ECF system. All non-attorneys, such as pro se parties and/or
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prisoners, may continue to file a paper original with the Clerk. All filings, whether filed
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electronically or in traditional paper format, must indicate in the upper right hand corner the
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name of the Magistrate Judge to whom the document is directed.
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When an electronic filing exceeds 50 pages in length, a paper copy of the document (with
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tabs or other organizing aids as necessary) shall be delivered to the Clerk’s Office for chambers.
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The chambers copy must be clearly marked with the words “Courtesy Copy of Electronic Filing
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for Chambers.” A party filing a paper original does not need to file a chambers copy.
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Additionally, any document filed with the Court must be accompanied by proof that it
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has been served upon all parties that have entered a notice of appearance in this case.
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//
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//
ORDER DIRECTING SERVICE OF
AMENDED COMPLAINT - 3

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(4)

Non-State Defendants

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As a registered user of the Court’s electronic filing system, you must accept electronic

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service of all court filings (except original service of a complaint) by prisoner litigants housed at

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the Washington Corrections Center (WCC) who are subject to Mandatory Electronic E-Filing.

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WCC prisoner litigants are no longer required to serve their court filings on the Court or

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defendants by mail. Service by mail of your court filings to WCC prisoner litigants is also no

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longer required.

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(5)

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Regarding the filing of motions before the Court, the parties are directed to review Local

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Motions

Rule CR 7 in its entirety. A few important points are highlighted below:

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Any request for court action shall be set forth in a motion, properly filed and served.

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Pursuant to Local Rule CR 7(b), any argument being offered in support of a motion shall be

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submitted as a part of the motion itself and not in a separate document. The motion shall

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include in its caption (immediately below the title of the motion) a designation of the date

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the motion is to be noted for consideration upon the court’s motion calendar.

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In all instances where one of the parties to a lawsuit is incarcerated, all categories of

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non-dispositive motions not listed in Local Rule CR 7(d)(1) must be noted for the third

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Friday after the date of filing and service. See Local Rule CR 7(d)(2).

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All dispositive motions shall be noted for consideration no earlier than the fourth Friday
following filing and service of the motion.

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(6)

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No direct communication is to take place with the District Judge or Magistrate Judge with

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Direct Communications with District Judge or Magistrate Judge

regard to this case. All relevant information and papers are to be directed to the Clerk.

ORDER DIRECTING SERVICE OF
AMENDED COMPLAINT - 4

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(7)

The Clerk is directed to send a copy of this Order to plaintiff and a copy of this

Order to the Hon. Ricardo S. Martinez.
DATED this 13th day of June, 2017.

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A

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BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER DIRECTING SERVICE OF
AMENDED COMPLAINT - 5