Roberts v. Thrasher et al

Filing 76

ORDER DIRECTING SERVICE. The Clerk is directed to mark plaintiff's first motion to amend (Dkt. 43 ) as WITHDRAWN. Plaintiff's newly filed motion to amend (Dkt. 74 ) is GRANTED except to the extent that it seeks to add any claims which w ere previously dismissed as duplicative of claims raised in other pending actions. Defendants' Motion for Extension of Time to File Answer and Motion for Order Directing Service (Dkt. 72 ) is GRANTED. Documents served electronically to Eric Bu rt, H. Griffith, James Rogers, Lt. David Brower, S. Sundberg, Paree Farr, D. French, Sherry Pendergrass, Daniel W. White, Department of Corrections, Lee Rome, Lee Sowers, Sgt. Adam Kolowinski, Jonathan Reyes Hugo, Officer Paul McDole, Officer R onald Benjamin, Officer James Nauschwander, Officer Jill Ansorge, Officer Cody Havens, Officer Dakota Hayes, Officer Kevin Dahlby and Cynthia Mason.The Clerk is directed to terminate the following defendants from the docket as they are no longer n amed as defendants in the amended complaint: Bruce Gage, Jack Warner, Lisa Anderson, Chris Bowman, Katrina Suckow, Patricia Zeisler, Steven Jewitt, Dan Sneweisser, Jane Does 1-5, John Does 1-4. The newly named (previously unserved) defendants shall have thirty (30) days within which to return the waiver of service of summons. A defendant who has been personally served shall file an answer or motion permitted under Rule 12 within twenty-one (21) days after service. All defendan ts named in the amended complaint must serve their answers to the complaint or motions permitted under Rule 12 of the Federal Rules of Civil Procedure, on or before February 19, 2021. Signed by Hon. Brian A Tsuchida. **8 PAGE(S), PRINT ALL**(Joe Roberts, Prisoner ID: 394089)(PM)

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 1 of 8

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOE JW ROBERTS, JR,

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Plaintiff,
v.
TIM THRASHER, et al.,

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Defendant.

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CASE NO. 2:20-cv-00376-RSM-BAT
ORDER DIRECTING CLERK TO
MARK DOCKET #43 AS
WITHDRAWN, GRANTING
PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR
EXTENSION, AND DIRECTING
SERVICE

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This matter comes before the Court on plaintiff’s motions to file an amended complaint
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and defendants’ motion for an extension of time to file an answer. Dkts. 43, 72, 74. On
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September 28, 2020, plaintiff moved to amend his complaint but failed to submit a full copy of
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his proposed amended complaint. Dkt. 43. The Court directed plaintiff to provide the missing
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pages of his proposed amended complaint and indicated it would rule on the motion to amend
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when plaintiff had done so. Dkt. 73. Instead, plaintiff filed a new motion to amend his
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complaint. Dkt. 74. It appears based upon plaintiff’s filings that he intends to withdraw his
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previously filed motion to amend, which the Court had not yet ruled upon, and for the Court to
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instead consider his newly filed motion to amend and proposed amended complaint.
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Accordingly, the Clerk is directed to mark plaintiff’s first motion to amend (Dkt. 43) as
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WITHDRAWN.
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ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 1

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 2 of 8

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The Court will now turn to the merits of plaintiff’s newly filed motion to amend (Dkt.

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74). Defendants do not oppose plaintiff’s motion to amend but ask that the Court screen the

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amended complaint noting that the Court had previously dismissed several claims which were

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duplicative of plaintiff’s claims in other pending actions. Dkt. 75. Because defendants have not

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yet filed a responsive pleading plaintiff may amend his complaint as a matter of course. See

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Fed. R. Civ. P. 15(a). Accordingly, plaintiff’s newly filed motion to amend (Dkt. 74) is

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GRANTED except to the extent that it seeks to add any claims which were previously dismissed

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as duplicative of claims raised in other pending actions (see Dkts. 24, 28). The Clerk is directed

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to docket plaintiff’s proposed amended complaint (Dkt. 74-1) as the amended complaint in this

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action.
In light of plaintiff’s motions to amend the complaint, defendants also moved for an

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extension of time to file their answers and request that the answers of the newly named

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defendants and the existing defendants be due on the same date. Dkts. 72, 75. Defendants’

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motion (Dkt. 72) is GRANTED. Defendants’ answers will all be due on February 19, 2021, as

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described below.

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The Court further orders:
a. Service by Clerk
Plaintiff is currently incarcerated at Monroe Correctional Complex-Reformatory (WSR)

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and is subject to Mandatory Electronic E-Filing pursuant to General Orders 02-15 and 06-16.

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The Clerk is directed to send the following to the newly named defendants listed below by e-

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mail: copies of plaintiff’s Amended Complaint (Dkt. 74-1), this Order, the notice of lawsuit and

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request for waiver of service of summons, and a waiver of service of summons:

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ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 2

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 3 of 8

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Defendants
Eric Burt

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H. Griffith
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James Rogers
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David Brower
S. Sundberg
Paree Farr
D. French

Sherry
Pendergrass
Daniel W.
White
Department of
Corrections
Lee Rome
Lee Sowers
Adam
Kolowinski
Jonathan
Reyes Hugo
Paul McDole

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Ronald
Benjamin
James
Nauschwander
Jill Ansorge

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Cody Havens

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Dakota Hayes

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Kevin Dahlby

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grievance coordinator
WSP
grievance coordinator
WSP
WSP classification
counselor
WSP lieutenant
DOC employee
WSP nurse
custodial unit
supervisor WCW IMU
MCC-SOU-ITU
classification
counselor
superintendent WCC

chief psychiatry DOC
chief psychologist
DOC
WSP Sgt. in infirmary
3/20-5/20
WSP Physician’s
Assistant
WSP Corrections
Officer
WSP Corrections
Officer
WSP Corrections
Officer
WSP Corrections
Officer
WSP Corrections
Officer
WSP Corrections
Officer
WSP Corrections
Officer

ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 3

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 4 of 8

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Cynthia Mason Psychologist MCC

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The Court declines to direct service against “John Doe” at this time as that individual has
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not been sufficiently identified.
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b. Previously Served/Existing Defendants and Terminated Defendants
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The Court notes that the following defendants were previously served and are named
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again in the amended complaint and thus remain as defendants in the action:
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Tim Thrasher
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Karie Rainer
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Scott Russell
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DOC Housing
Coordinator Director
Director Mental
Health DOC
Prisons Command
Director
WSP – supervisor
Mental Health staff
WSP Superintendent

Crystal
Contreras
Donald
Holbrook
Arben Kullejka MCC – custody unit
supervisor
Todd Saunders MCC – classification
counselor
Allison
WSP – legal liaison
Windows
Susan Hussey
WSP - nurse
Kathy Jackson WSP - nurse
Lindsay
MCC – psych
McIntyre
associate
Vilma
MCC – psych
Khounphixay
associate
Valerie
MCC – psych
Herrington
associate
Hailee Jiminez MCC – psych
associate
Rachael
MCC – psych
Symons
associate
Nicolette
WSP – psych associate
Phillips
ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 4

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 5 of 8

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Lisa Robtoy
Scott Buttice

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Joshua Slater

WSP – psych associate
WSP custody unit
supervisor
WSP psych associate

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The Clerk is directed to terminate the following defendants from the docket as they are
no longer named as defendants in the amended complaint:

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Bruce Gage

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Jack Warner

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Lisa Anderson
Chris Bowman
Katrina
Suckow
Patricia Zeisler
Steven Jewitt
Dan
Sneweisser
Jane Does 1-5
John Does 1-4

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MCC – supervisor MH
staff
MCC –
supervisor/supt
MCC – assoc supt
WSP – assoc supt
WSP – custody unit
supervisor
MCC – psych ass
MCC – psych
MCC - psych
MCC - nurses
MCC - nurses

c. Response Required
The newly named (previously unserved) defendants listed above shall have thirty (30)
days within which to return the enclosed waiver of service of summons.
A defendant who fails to timely return the signed waiver will be personally served with a
summons and complaint, and may be required to pay the full costs of such service, pursuant to
Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has been personally
served shall file an answer or motion permitted under Rule 12 within twenty-one (21) days after
service.

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ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 5

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 6 of 8

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All defendants named in the amended complaint must serve their answers to the

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complaint or motions permitted under Rule 12 of the Federal Rules of Civil Procedure, on or

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before February 19, 2021.

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d. Filing and Service by Parties, Generally
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. Counsel are directed to the Court’s website,

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www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF.

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Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand

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corner the name of the magistrate judge to whom the document is directed.

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Any document filed with the Court must be accompanied by proof that it has been served

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upon all parties that have entered a notice of appearance in the underlying matter. Plaintiffs shall

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indicate the date the document is submitted for e-filing as the date of service.

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

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Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a

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part of the motion itself and not in a separate document. The motion shall include in its caption

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(immediately below the title of the motion) a designation of the date the motion is to be noted for

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consideration upon the Court’s motion calendar.

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Stipulated and agreed motions, motions to file over-length motions or briefs, motions for

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reconsideration, joint submissions pursuant to the option procedure established in LCR 37(a)(2),

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motions for default, requests for the clerk to enter default judgment, and motions for the court to

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enter default judgment where the opposing party has not appeared shall be noted for

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ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 6

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 7 of 8

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consideration on the day they are filed. See LCR 7(d)(1). All other non-dispositive motions shall

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be noted for consideration no earlier than the third Friday following filing and service of the

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motion. See LCR 7(d)(3). All dispositive motions shall be noted for consideration no earlier than

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the fourth Friday following filing and service of the motion. Id.

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For electronic filers, all briefs and affidavits in opposition to either a dispositive or non-

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dispositive motion shall be filed and served not later than 11:59 p.m. on the Monday

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immediately preceding the date designated for consideration of the motion.

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The party making the motion may electronically file and serve not later than 11:59 p.m.
on the date designated for consideration of the motion, a reply to the opposing party’s briefs and
affidavits.

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f. Motions to Dismiss and Motions for Summary Judgment

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Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil

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Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

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Procedure should acquaint themselves with those rules. As noted above, these motions shall be

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noted for consideration no earlier than the fourth Friday following filing and service of the

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motion.

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Defendants filing motions to dismiss based on a failure to exhaust or motions for

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summary judge are advised that they MUST serve a Rand notice concurrently with motions to

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

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

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oppose those motions. Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012). The Ninth Circuit has

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set forth model language for such notices:

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ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 7

Case 2:20-cv-00376-RSM-BAT Document 76 Filed 12/18/20 Page 8 of 8

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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.
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.
Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added).
Defendants who fail to file and serve the required Rand notice on plaintiff may have their
motion stricken from the Court’s calendar with leave to re-file.

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g. Direct Communications with District Judge or Magistrate Judge

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

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

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The Clerk is directed to send copies of this Order to the parties.

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DATED this 18th day of December, 2020.

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A

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BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER DIRECTING CLERK TO MARK
DOCKET #43 AS WITHDRAWN,
GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND
DEFENDANTS’ MOTION FOR EXTENSION,
AND DIRECTING SERVICE - 8