McGary v. Cunningham et al

Filing 95

ORDER granting 91 Motion to Lift Stay; denying 93 Motion to file Third Amended Complaint; and granting 94 Motion for Extension of Discovery Deadline: Discovery completed by 6/20/2014, Dispositive motions due by 9/5/2014, and the parties are advised that a due date for filing a Joint Pretrial Statement may be established at a later date pending the outcome of any dispositive motions. Signed by Magistrate Judge J Richard Creatura.(CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DARNELL O McGARY,
Plaintiff,

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v.
KELLY CUNNINGHAM, DON GAUNTZ,
Dr. HOLLY CORYELL, ED YOUNG, Dr.
BRUCE DUTHIE, JEFF CUTSHAW,
REGINALD WOODS, and MARK
LINDQUIST.

ORDER LIFTING STAY, DENYING
PLAINTIFF’S MOTION TO FILE A
THIRD AMENDED COMPLAINT
AND ISSUING A NEW
SCHEDULING ORDER

Defendants.

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CASE NO. C13-5130 RBL-JRC

This 42 U.S.C. §1983 civil rights matter has been referred to the undersigned Magistrate

16 Judge pursuant to 28 U.S.C. §§ 636 (b) (1) (A) and (B) and Local Magistrate Judge Rules MJR
17 1, MJR 3, and MJR 4.
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The Court stayed this matter at the request of the parties on December 6, 2013. The

19 Court entered the stay because of criminal charges filed against plaintiff (Dkt. 86). On March
20 28, 2014 plaintiff filed a motion asking that the Court lift the stay (Dkt. 91). The Clerk’s Office
21 noted plaintiff’s motion for April 18, 2014. Defendants represented by the Attorney General’s
22 Office have responded to the motion and do not oppose lifting the stay (Dkt. 91). Defendant
23 Lindquist did not respond to the motion.
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ORDER LIFTING STAY, DENYING PLAINTIFF’S
MOTION TO FILE A THIRD AMENDED
COMPLAINT AND ISSUING A NEW
SCHEDULING ORDER - 1

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The Court orders that the stay entered in December of 2013 is lifted.

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Before the noting date for the motion to lift the stay, plaintiff filed two additional

3 motions. Plaintiff filed a motion to submit a third “supplemental” complaint, (Dkt. 93), and an
4 “unopposed motion to extend the discovery schedule.” (Dkt. 94). Plaintiff’s unopposed motion
5 is not signed by either the Attorney General’s Office or Defendant Lindquist’s office, although
6 plaintiff states that the matter has been discussed with all parties (Dkt. 94, p. 2).
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1.

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The Court denies plaintiff’s motion to file a supplemental complaint for a number of

Amendment of the action.

9 reasons. When the Court stays an action the parties may not continue to engage in motion
10 practice. Thus, plaintiff’s motion was not properly filed because the stay had not been lifted. In
11 addition, the Western District Local Rules require a plaintiff to submit a proposed amended
12 complaint and not simply a motion. The Rule states:
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A party who moves for leave to amend a pleading, or who seeks to amend a
pleading by stipulation and order, must attach a copy of the proposed amended
pleading as an exhibit to the motion or stipulation. The party must indicate on the
proposed amended pleading how it differs from the pleading that it amends by
bracketing or striking through the text to be deleted and underlining or
highlighting the text to be added. The proposed amended pleading must not
incorporate by reference any part of the preceding pleading, including exhibits. If
a motion or stipulation for leave to amend is granted, the party whose pleading
was amended must file and serve the amended pleading on all parties within
fourteen (14) days of the filing of the order granting leave to amend, unless the
court orders otherwise.

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Local Civil Rule 15. Plaintiff’s motion does not conform to the Local Rules. The Court must

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20 have the proposed complaint to consider. Further, under the Local Rule, supplemental
21 complaints are not normally allowed.
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A final consideration for this Court is the length of time this action has been pending.
Plaintiff commenced this action in February of 2013 and the action is now over one year old.
ORDER LIFTING STAY, DENYING PLAINTIFF’S
MOTION TO FILE A THIRD AMENDED
COMPLAINT AND ISSUING A NEW
SCHEDULING ORDER - 2

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The Court will not allow the action to become a continuum of events that includes events that

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occurred after the filing of the original action. The Court denies plaintiff’s motion to amend

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this action. The operative complaint in this action will remain the amended complaint filed July

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24, 2013 (Dkt. 42).

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2.

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At the time the Court stayed this action discovery should have been nearly completed.

Scheduling order

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The scheduling order that was in effect at the time of the stay included a January 3, 2014 cutoff

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date (Dkt. 55). Because the Court has denied amendment of the complaint the Court does not

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believe a lengthy continuation of discovery is needed. The Court amends the scheduling order

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as follows:

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(1)

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All discovery shall be completed by June 20, 2014. Service of responses to

Discovery

13 interrogatories and to requests to produce, and the taking of depositions, shall be completed by
14 this date. Federal Rule of Civil Procedure 33(a) requires answers or objections to be served
15 within thirty (30) days after service of the interrogatories. The serving party, therefore, must
16 serve his/her interrogatories at least thirty (30) days before the deadline in order to allow the
17 other party time to answer.
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(2)

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Any dispositive motion shall be filed and served on or before September 5, 2014.

Dispositive Motions

20 Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a
21 part of the motion itself and not in a separate document. The motion shall include in its caption
22 (immediately below the title of the motion) a designation of the date the motion is to be noted for
23 consideration upon the Court’s motion calendar. Dispositive motions shall be noted for
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ORDER LIFTING STAY, DENYING PLAINTIFF’S
MOTION TO FILE A THIRD AMENDED
COMPLAINT AND ISSUING A NEW
SCHEDULING ORDER - 3

1 consideration on a date no earlier than the fourth Friday following filing and service of the
2 motion. LCR 7(d)(3).
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All briefs and affidavits in opposition to any motion shall be filed and served pursuant to

4 the requirements of Rule 7 of the Federal Rules of Civil Procedure and LCR 7. The party
5 making a motion may file and serve a reply to the opposing party’s briefs and affidavits. Any
6 reply brief shall also be filed and served pursuant to the requirements of Rule 7 of the Federal
7 Rules of Civil Procedure and LCR 7.
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Defendants are reminded that they MUST serve Rand notices, in a separate document,

9 concurrently with motions to dismiss and motions for summary judgment so that pro se prisoner
10 plaintiffs will have fair, timely and adequate notice of what is required of them in order to
11 oppose those motions. Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012). The Ninth Circuit
12 has 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 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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ORDER LIFTING STAY, DENYING PLAINTIFF’S
MOTION TO FILE A THIRD AMENDED
COMPLAINT AND ISSUING A NEW
SCHEDULING ORDER - 4

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

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The parties are advised that a due date for filing a Joint Pretrial Statement may be

Joint Pretrial Statement

6 established at a later date pending the outcome of any dispositive motions.
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(4)

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All motions, pretrial statements and other filings shall be accompanied by proof that such

Proof of Service and Sanctions

9 documents have been served upon counsel for the opposing party or upon any party acting pro
10 se. The proof of service shall show the day and manner of service and may be by written
11 acknowledgment of service, by certificate of a member of the bar of this Court, by affidavit of
12 the person who served the papers, or by any other proof satisfactory to the Court. Failure to
13 comply with the provisions of the Order can result in dismissal/default judgment or other
14 appropriate sanctions.
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(5)

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

16 counsel for defendants.
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Dated this 18th day of April, 2014.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER LIFTING STAY, DENYING PLAINTIFF’S
MOTION TO FILE A THIRD AMENDED
COMPLAINT AND ISSUING A NEW
SCHEDULING ORDER - 5