Hayes v. State of Washington, Department of Corrections et al

Filing 41

ORDER DIRECTING SERVICE OF SECOND AMENDED CIVIL RIGHTS COMPLAINT, by 1st Class Mail, upon the following defendants: Scott Frakes, Dan Pacholke, Jeffery Uttecht, Bernard Warner, and Tuan Duong; signed by Magistrate Judge David W. Christel. (mailed 7/12/2016)**5 PAGES, PRINT ALL**(Donald Hayes, Prisoner ID: 766385)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DONALD C HAYES,

CASE NO. 3:16-CV-05095-BHS-DWC

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Plaintiff,
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ORDER DIRECTING SERVICE OF
CIVIL RIGHTS COMPLAINT

v.
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STATE OF WASHINGTON,
13 DEPARTMENT OF CORRECTIONS,
DAN PACHOLKE, JANE DOES, JOHN
14 DOES, ELIZABETH SUITER, JEFFERY
UTTECHT, SARA SMITH, DAVIS,
15 REYES, EDWARDS, RICHARD
MORGAN, BERNARD WARNER, SCOTT
16 FRAKES, HAMMOND, TAUN DOUNG,
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Defendants.

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This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding
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with this action pro se and in forma pauperis. Plaintiff is currently incarcerated at the Stafford
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Creek Corrections Center and is subject to the Court’s Prisoner E-Filing Initiatve pursuant to
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General Order 06-16. The Court, having reviewed plaintiff’s second amended complaint, hereby
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ORDERS as follows:
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ORDER DIRECTING SERVICE OF CIVIL
RIGHTS COMPLAINT - 1

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(1)

Service by Clerk

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The Clerk is directed to send the following to Defendants Frakes, Pacholke, Uttecht,

3 Warner, and Duong by first class mail: a copy of plaintiff’s second amended complaint, a copy
4 of this Order, two copies of the notice of lawsuit and request for waiver of service of summons, a
5 waiver of service of summons, and a return envelope, postage prepaid, addressed to the Clerk’s
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(2)

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

Response Required

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

13 summons and second amended complaint, and may be required to pay the full costs of such
14 service, pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has
15 been personally served shall file an answer or motion permitted under Rule 12 within thirty (30)
16 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

19 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website,
20 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF.
21 Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand
22 corner the name of the magistrate judge to whom the document is directed.
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ORDER DIRECTING SERVICE OF CIVIL
RIGHTS COMPLAINT - 2

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

2 upon all parties that have entered a notice of appearance in the underlying matter. Plaintiffs
3 subject to the Court’s E-Filing Initaitive shall indicate the date the document is submitted for e4 filing as the date of service.
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(4)

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

Non-State Defendants

7 service of all court filings (except original service of a complaint) by prisoner litigants housed at
8 facilities actively engaged in the Prisoner E-Filing Initiative. Prisoner litigants inacarcerated at
9 facilities actively engaged in the Prisoner E-Filing Initiative are no longer required to serve their
10 court filings on the Court or defendants by mail. Service by mail of your court filings to prison
11 litigants housed in facilities actively engaged in the Prisoner E-Filing Initiative is also no longer
12 required.
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(5)

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

Motions, Generally

15 Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a
16 part of the motion itself and not in a separate document. The motion shall include in its caption
17 (immediately below the title of the motion) a designation of the date the motion is to be noted for
18 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

20 reconsideration, joint submissions pursuant to the option procedure established in LCR 37(a)(2),
21 motions for default, requests for the clerk to enter default judgment, and motions for the court to
22 enter default judgment where the opposing party has not appeared shall be noted for
23 consideration on the day they are filed. See LCR 7(d)(1). All other non-dispositive motions

ORDER DIRECTING SERVICE OF CIVIL
RIGHTS COMPLAINT - 3

1 shall be noted for consideration no earlier than the third Friday following filing and service of the
2 motion. See LCR 7(d)(3). All dispositive motions shall be noted for consideration no earlier
3 than 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-

5 dispositive motion shall be filed and served not later than 11:59 p.m. on the Monday
6 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.

8 on the date designated for consideration of the motion, a reply to the opposing party’s briefs and
9 affidavits.
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(6)

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

Motions to Dismiss and Motions for Summary Judgment

12 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
13 Procedure should acquaint themselves with those rules. As noted above, these motions shall be
14 noted for consideration no earlier than the fourth Friday following filing and service of the
15 motion.
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Defendants filing motions to dismiss based on a failure to exhaust or motions for

17 summary judge are advised that they MUST serve a Rand notice concurrently with motions to
18 dismiss based on a failure to exhaust and motions for summary judgment so that pro se prisoner
19 plaintiffs will have fair, timely and adequate notice of what is required of them in order to
20 oppose those motions. Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012). The Ninth Circuit
21 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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ORDER DIRECTING SERVICE OF CIVIL
RIGHTS COMPLAINT - 4

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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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Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added).
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Defendants who fail to file and serve the required Rand notice on plaintiff may have their
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motion stricken from the Court’s calendar with leave to re-file.
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(7)

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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Dated this 12th day of July, 2016.
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David W. Christel
United States Magistrate Judge

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ORDER DIRECTING SERVICE OF CIVIL
RIGHTS COMPLAINT - 5