Wiggin v. Rollins et al

Filing 76

ORDER DIRECTING SERVICE by 1st Class Mail; mailed on 8/1/13 to the 19 new defendants to this case. Signed by Magistrae Judge Karen L Strombom. (CMG; cc to Plaintiff w/Gen'l Order)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JAMES O’NEIL WIGGIN,
Plaintiff,

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v.

CASE NO. 13-5057 BHS/KLS

WILLIAM ROLLINS, RICHARD
ENDERS, MARK BEITER, MARY
KEPPLER, ROBERTA KANIVE, TIM
PANEK, SHERYL ALBERT, FRANK
LONGANO, KELLY REMY, MARTHA
NEWLON, FRED NAVARRO, J.
DAVID KENNEDY, STEVE
HAMMOND, CHRIS LOFGREN, C.
PHILLIPS, LONIE FIGUEROA, JOHN
DOMINOSKI, RANDALL PIERCE,
SARAH SMITH, DEAN KAO, FLO
FADELE, DALE FETROE, EDWARD
HOPFNER, INDA HERTZ, JOHN
HURLEY, SANDRA CONNER,
BENJAMIN RODRIGUEZ, CAROL
THAMERT, JONATHAN NEALL,
RAMON RELYEA, JACKIE SHUEY,
EVELYNE DRYER, SCOTT LIGHT,
MARY COLTER, LISA ANDERSONLONGANO, PHU NGO, MICHAEL
FURST, DALE KRAMP,
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS,

ORDER FOR SERVICE OF
AMENDED COMPLAINT

Defendants.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has been

23 granted leave to proceed with this action in forma pauperis. Plaintiff has filed a First Amended
24 Complaint naming 19 new defendants. Accordingly, it is ORDERED:
ORDER FOR SERVICE OF AMENDED
COMPLAINT- 1

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(l)

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The Clerk is directed to send the following to the newly named defendants by first class

Service by Clerk

3 mail: a copy of Plaintiff’s Amended Complaint, a copy of this Order, two copies of the Notice of
4 Lawsuit and Request for Waiver of Service of Summons, a Waiver of Service of Summons, and
5 a return envelope, postage prepaid, addressed to the Clerk’s Office.
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(2)

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Defendants shall have thirty (30) days within which to return the enclosed waiver of

Response Required

8 service of summons. A defendant who timely returns a signed waiver shall have sixty (60) days
9 after the date designated on the notice of lawsuit to file and serve an answer to the complaint or a
10 motion permitted under Rule 12 of the Federal Rules of Civil Procedure.
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A defendant who fails to timely return a signed waiver will be personally served with a

12 summons and complaint, and may be required to pay the full costs of such service, pursuant to
13 Rule 4(d)(2). A defendant who has been personally served shall file an answer or motion
14 permitted under Rule 12 within thirty (30) days after service.
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(3)

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All attorneys admitted to practice before this Court are required to file documents

Filing and Service by Parties, Generally

17 electronically via the Court’s CM/ECF system. Counsel are directed to the court’s website,
18 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF.
19 All non-attorneys, such as pro se parties and/or prisoners, may continue to file a paper original
20 with the Clerk. All filings, whether filed electronically or in traditional paper format, must
21 indicate in the upper right hand corner the name of the Magistrate Judge to whom the document
22 is directed.
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For any party filing electronically, when the total of all pages of a filing exceeds fifty

24 (50) pages in length, a paper copy of the document (with tabs or other organizing aids as
ORDER FOR SERVICE OF AMENDED
COMPLAINT- 2

1 necessary) shall be delivered to the Clerk’s Office for chambers. The chambers copy must be
2 clearly marked with the works “Courtesy Copy of Electronic Filing for Chambers.”
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Any document filed with the Court must be accompanied by proof that it has been served

4 upon all parties that have entered a notice of appearance in the underlying matter.
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(4)

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

Motions

7 Pursuant to amended Local Rule CR 7(b), any argument being offered in support of a motion
8 shall be submitted as a part of the motion itself and not in a separate document. The motion shall
9 include in its caption (immediately below the title of the motion) a designation of the date the
10 motion is to be noted for consideration upon the court’s motion calendar.
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Stipulated and agreed motions, motions to file overlength motions or briefs, motions for

12 reconsideration, joint submissions pursuant to the option procedure established in Local Rule
13 CR 37(a)(1)(B), motions for default, requests for the clerk to enter default judgment, and
14 motions for the court to enter default judgment where the opposing party has not appeared shall
15 be noted for consideration on the day they are filed. See Local Rule CR 7(d)(1). All other non16 dispositive motions shall be noted for consideration no earlier than the third Friday following
17 filing and service of the motion. See Local Rule CR 7(d)(3).
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All dispositive motions shall be noted for consideration no earlier than the fourth Friday

19 following filing and service of the motion. See also infra § 4 (concerning filing and service in
20 general).
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For electronic filers, all briefs and affidavits in opposition to either a dispositive or non-

22 dispositive motion shall be filed and served not later than 11:59 p.m. on the Monday
23 immediately preceding the date designated for consideration of the motion. If a party files a
24 paper original (i.e., a pro se litigant and/or prisoner), that opposition must be received in the
ORDER FOR SERVICE OF AMENDED
COMPLAINT- 3

1 Clerk’s office by 4:30 p.m. on the Monday preceding the date of consideration. If a party fails to
2 file and serve timely opposition to a motion, the court may deem any opposition to be without
3 merit.
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The party making the motion may file and serve, not later than 11:59 p.m. (if filing

5 electronically) or 4:30 p.m. (if filing a paper original with the Clerk’s office) on the date
6 designated for consideration of the motion, a response to the opposing party’s briefs and
7 affidavits.
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(5)

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Parties filing motions to dismiss pursuant to Fed. R. Civ. P. 12 and motions for summary

Motions to Dismiss and Motions for Summary Judgment

10 judgment pursuant to Fed. R. Civ. P. 56 should acquaint themselves with those rules. As noted
11 above, these motions shall be noted for consideration no earlier than the fourth Friday following
12 filing and service of the motion.
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Defendants filing motions to dismiss (for failure to exhaust administrative remedies) or

14 motions for summary judgment MUST serve Rand and Wyatt notices concurrently with their
15 motions so that pro se prisoner plaintiff will have fair, timely and adequate notice of what is
16 required in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 934 (9th Cir.
17 2012). The Ninth Circuit set forth 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
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
ORDER FOR SERVICE OF AMENDED
COMPLAINT- 4

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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.

4 Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added); see Wyatt v. Terhune,
5 315 F.3d 1108, 1120 n.14 (9th Cir. 2003) (extending the fair notice requirement to motions to
6 dismiss for failure to exhaust administrative remedies). Notices may also note that “Local Rule
7 CR 7(b)(2) states that a party’s failure to file necessary documents in opposition to a motion for
8 summary judgment may be deemed by the court to be an admission that the opposition is without
9 merit.” If Defendants fail to file and serve the Rand and Wyatt notice on the Plaintiff, in a
10 separate document concurrent with their motion, the motion may be stricken from the
11 Court’s docket with leave to re-file once Defendants have complied with the notice
12 requirement.
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(6)

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

Direct Communications with District Judge or Magistrate Judge

15 regard to this case. All relevant information and papers are to be directed to the Clerk.
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(7)

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The Clerk is directed to send copies of this Order and of the General Order issued by the

Clerk’s Action

18 Magistrate Judges to Plaintiffs. The Clerk is further directed to send copies of this Order and a
19 courtesy copy of Plaintiffs’ Complaint to the Washington State Attorney General’s Office.
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DATED this

1st day of August, 2013.

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Karen L. Strombom
United States Magistrate Judge

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ORDER FOR SERVICE OF AMENDED
COMPLAINT- 5