Brown v. Morgan et al

Filing 40

ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE re 38 Objections to Report and Recommendation filed by Gregory Tyree Brown by Judge Ronald B. Leighton. **8 PAGE(S), PRINT ALL**(Gregory Brown, Prisoner ID: 281829)(DK)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 GREGORY TYREE BROWN, Case No. C16-5975 RBL-TLF 7 8 9 Plaintiff, v. RICHARD MORGAN, et al., Defendants. 10 11 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE This matter is before the Court on Magistrate Judge Fricke’s Report and 12 Recommendation, which recommends dismissal of certain defendants and service of the Second 13 Amended Complaint upon the remaining defendants. The court, having reviewed the Report and 14 Recommendation and the remaining record, does hereby find and ORDER: 15 (1) The Court adopts the Report and Recommendation. 16 (2) Plaintiff’s claims against the following defendants are dismissed with prejudice: 17 18 19 20 21 22 23 24 25 Ron Andering Corrections Officer Bennett Corrections Officer Boule Dave Bustonaby Sgt Cannon Sgt Card Christopher Cluever Gary Edwards Aaron Flack Gary Ford Sgt Fredrickson Gale Gleason Archie Grant Sgt Hartford Corrections Officer Hepler ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 1 1 Corrections Officer Jarrell Ron Knight Sgt Knox John Lambert Mike Leahy Harold Lee Les Marts J Massaro Sgt McIntyre Lewis Menke Gale Munden Cliff Owens Sgt Patton Cliff Pease Sgt Penrose Sgt Richardson Corrections Officer Rodriguez Carla Schettler Lt Schneider Mark Shodahl Steven Sowers Sgt Sukert Debra Sutton Larry Uribe Al Walter Corrections Officer Winn Tana Wood Bill Woodley 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (3) 16 Clara Curl Paul Duenich Harold Kupers Joseph Lehman Maggie Miller-Stout Corrections Officer Reed Sergeant Reno Corrections Officer Smith Sergeant Strang 17 18 19 20 21 22 23 24 25 Plaintiff’s claims against the following defendants are dismissed without prejudice: (4) The portions of plaintiff’s claims set forth in paragraphs 173-181of the Second Amended Complaint that rely upon conduct alleged in the previously dismissed paragraphs (44-111) are dismissed with prejudice. Any defendants named in paragraphs 173-181 who were no longer in their positions with DOC or its prisons as of November 21, 2013 are also subject to dismissal; however, the Second ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 2 1 Amended Complaint does not contain sufficient information to identify such defendants. 2 (5) 3 The following are the defendants remaining in the case. The Clerk of the Court shall conform the docket accordingly: Terry Anderson Dale Caldwell J. Campbell Sandra Diimmel Sgt Dreyer Donald Duncan Ian Erickson Scott Frakes Roy Gonzales Barbara Gronseth Kurt Grubb Ron Haynes Dan Heaward Robert Herzog Mike Holthe Margo Jensen Larry Kincheloe Mary Klepps Corrections Officer Kvam Robert Moore Richard Morgan Fay Nicholas Mike Obenland Amos Reed Chase Riveland Terry Schneider-Cornish Bob Shaw Steve Sinclair James Spalding Yvette Stubbs Eldon Vail Bernard Warner Robert (Bob) Wright 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (5) The remaining claims are re-referred to Magistrate Judge Fricke. 22 (6) Plaintiff’s motions for orders directing service, Dkts. 27, 28 and 29, are granted, to the extent consistent with the terms in this Order. The Court further orders the following: 23 24 25 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 3 1 2 (a) Service by Clerk Plaintiff is currently incarcerated at Clallam Bay Correctional Center (CBCC) and is 3 subject to Mandatory Electronic E-Filing pursuant to General Orders 02-15 and 06-16. The Clerk 4 is directed to send the following to the defendants listed below by e-mail: copies of plaintiff’s 5 Second Amended Complaint (Dkt. 14), this Order, the Court’s Order Dismissing Deficient 6 Claims (Dkt. 26), the Court’s Order Granting Motion to Substitute Parties (Dkt. 35), the notice of 7 lawsuit and request for waiver of service of summons, and a waiver of service of summons: 8 9 10 11 12 13 14 Dale Caldwell, Department of Corrections (DOC) Grievance Program Manager Sandra Diimmel, CBCC Sergeant Dreyer, CBCC Correctional Sergeant Donald Duncan, CBCC Chaplain Ian Erickson, CBCC Law Librarian Assistant Roy Gonzales, DOC Correctional Program Manager Kurt Grubb Dan Heaward, CBCC Hearings Officer Robert Herzog, DOC Deputy Secretary Mike Holthe, CBCC Grievance Coordinator Fay Nicholas, CBCC Correctional Guard Terry Schneider-Cornish, CBCC Mailroom Supervisor Steve Sinclair, DOC Secretary Yvette Stubbs, CBCC Law Librarian 15 The defendants shall be notified that they need not respond to paragraphs 44 through 111 16 of the Second Amended Complaint, nor to the portions of paragraphs 173-181 that refer to those 17 allegations, because the Court has dismissed those claims with prejudice. 18 (b) Statement by the Office of the Attorney General 19 The Office of the Attorney General of the State of Washington is directed to state 20 whether it is authorized to accept service on behalf of the following defendants alleged to be 21 former DOC employees and, if it is not so authorized, to file under seal their last known 22 addresses within thirty (30) days of the date of this order: 23 Terry Anderson, CBCC Unit Supervisor 24 25 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 4 1 J. Campbell, CBCC Mailroom Scott Frakes, DOC Deputy Secretary Barbara Gronseth, CBCC Law Librarian Assistant Ron Haynes, CBCC Margo Jensen, DOC Deputy Secretary Larry Kincheloe, DOC Secretary; WSP Superintendent Mary Klepps, CBCC Corrections Officer Kvam, CBCC Correctional Guard Robert Moore, CBCC Superintendent Richard Morgan, DOC Secretary; CBCC Superintendent; WSP Superintendent Mike Obenland, CBCC Superintendent Amos Reed, DOC Secretary Chase Riveland, DOC Secretary James Spalding, DOC Secretary; Bob Shaw, CBCC Superintendent; Eldon Vail, DOC Secretary Bernard Warner, DOC Secretary Robert (Bob) Wright, CBCC Superintendent 2 3 4 5 6 7 8 9 10 (c) Response Required 11 Defendant(s) shall have thirty (30) days within which to return the enclosed waiver of 12 service of summons. A defendant who timely returns the signed waiver shall have sixty (60) 13 days after the date designated on the notice of lawsuit to file and serve an answer to the 14 complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure. 15 A defendant who fails to timely return the signed waiver will be personally served with a 16 summons and complaint, and may be required to pay the full costs of such service, pursuant to 17 Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has been personally 18 served shall file an answer or motion permitted under Rule 12 within thirty (30) days after 19 service. 20 (d) Filing and Service by Parties, Generally 21 All attorneys admitted to practice before this Court are required to file documents 22 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, 23 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF. 24 25 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 5 1 Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand 2 corner the name of the magistrate judge to whom the document is directed. 3 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. Plaintiffs shall 5 indicate the date the document is submitted for e-filing as the date of service. 6 7 (e) Motions, Generally Any request for court action shall be set forth in a motion, properly filed and served. 8 Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a 9 part of the motion itself and not in a separate document. The motion shall include in its caption 10 (immediately below the title of the motion) a designation of the date the motion is to be noted for 11 consideration upon the Court’s motion calendar. 12 Stipulated and agreed motions, motions to file over-length motions or briefs, motions for 13 reconsideration, joint submissions pursuant to the option procedure established in LCR 37(a)(2), 14 motions for default, requests for the clerk to enter default judgment, and motions for the court to 15 enter default judgment where the opposing party has not appeared shall be noted for 16 consideration on the day they are filed. See LCR 7(d)(1). All other non-dispositive motions shall 17 be noted for consideration no earlier than the third Friday following filing and service of the 18 motion. See LCR 7(d)(3). All dispositive motions shall be noted for consideration no earlier than 19 the fourth Friday following filing and service of the motion. Id. 20 For electronic filers, all briefs and affidavits in opposition to either a dispositive or non- 21 dispositive motion shall be filed and served not later than 11:59 p.m. on the Monday 22 immediately preceding the date designated for consideration of the motion. 23 24 25 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 6 1 The party making the motion may electronically file and serve not later than 11:59 p.m. 2 on the date designated for consideration of the motion, a reply to the opposing party’s briefs and 3 affidavits. 4 (f) Motions to Dismiss and Motions for Summary Judgment 5 Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil 6 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 7 Procedure should acquaint themselves with those rules. As noted above, these motions shall be 8 noted for consideration no earlier than the fourth Friday following filing and service of the 9 motion. 10 Defendants filing motions to dismiss based on a failure to exhaust or motions for 11 summary judge are advised that they MUST serve a Rand notice concurrently with motions to 12 dismiss based on a failure to exhaust and motions for summary judgment so that pro se prisoner 13 plaintiffs will have fair, timely and adequate notice of what is required of them in order to 14 oppose those motions. Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012). The Ninth Circuit has 15 set forth model language for such notices: 16 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 17 18 19 20 21 22 23 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 24 25 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 7 1 2 3 4 5 6 7 8 9 10 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. (g) Direct Communications with District Judge or Magistrate Judge No direct communication is to take place with the District Judge or Magistrate Judge with regard to this case. All relevant information and papers are to be directed to the Clerk. (h) The Clerk is directed to send copies of this Order to plaintiff. Dated this 18th day of October, 2018. 11 12 A 13 Ronald B. Leighton United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 ORDER DISMISSING CERTAIN DEFENDANTS, DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT, AND REFERRING TO MAGISTRATE JUDGE - 8

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