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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 SHANELL K. DUNCAN, CASE NO. 3:23-CV-5285-MJP-DWC 9 Plaintiff, ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT 10 v. 11 ALVIN R. ALLEN, et al., 12 Defendant. 13
14 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding 15 with this action pro se and in forma pauperis. Plaintiff is currently incarcerated at the Stafford 16 Creek Corrections Center and is subject to the Court’s Prisoner E-Filing Initiative pursuant to 17 General Order 06-16. The Court, having reviewed plaintiff’s complaint, hereby ORDERS as 18 follows: 19 (2) Service by Clerk 20 The Clerk is directed to send the following to Defendants Alvin R. Allen, Jason Finley, 21 Nouhoum Sidibe, Gaspar Alexander Tomas, Mark Ramos and Amber Tucker by first class mail: 22 a copy of plaintiff’s amended complaint (Dkt. 7), a copy of this Order, two copies of the notice 23 1 of lawsuit and request for waiver of service of summons, a waiver of service of summons, and a 2 return envelope, postage prepaid, addressed to the Clerk’s Office. 3 (3) Response Required 4 Defendant(s) shall have thirty (30) days within which to return the enclosed waiver of
5 service of summons. A defendant who timely returns the signed waiver shall have sixty (60) 6 days after the date designated on the notice of lawsuit to file and serve an answer to the 7 complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure. 8 A defendant who fails to timely return the signed waiver will be personally served with a 9 summons and complaint, and may be required to pay the full costs of such service, pursuant to 10 Rule 4(d)(2) of the Federal Rules of Civil Procedure. 11 (4) Filing and Service by Parties, Generally 12 All attorneys admitted to practice before this Court are required to file documents 13 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, 14 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF.
15 Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand 16 corner the name of the magistrate judge to whom the document is directed. 17 Any document filed with the Court must be accompanied by proof that it has been served 18 upon all parties that have entered a notice of appearance in the underlying matter. Plaintiffs 19 subject to the Court’s E-Filing Initiative shall indicate the date the document is submitted for e- 20 filing as the date of service. 21 (5) Non-State Defendants 22 As a registered user of the Court’s electronic filing system, you must accept electronic 23 service of all court filings (except original service of a complaint) by prisoner litigants housed at 1 facilities actively engaged in the Prisoner E-Filing Initiative. Prisoner litigants incarcerated at 2 facilities actively engaged in the Prisoner E-Filing Initiative are no longer required to serve their 3 court filings on the Court or defendants by mail. Service by mail of your court filings to prison 4 litigants housed in facilities actively engaged in the Prisoner E-Filing Initiative is also no longer
5 required. 6 (6) Motions, Generally 7 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 17 shall 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 19 than 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 1 The party making the motion may file and serve, not later than 11:59 p.m. on the date 2 designated for consideration of the motion, a reply to the opposing party’s briefs and affidavits. 3 (7) Motions to Dismiss and Motions for Summary Judgment 4 Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil
5 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 6 Procedure should acquaint themselves with those rules. As noted above, these motions shall be 7 noted for consideration no earlier than the fourth Friday following filing and service of the 8 motion. 9 Defendants filing motions to dismiss or motions for summary judge are advised that they 10 MUST serve Rand and Wyatt notices concurrently with motions to dismiss and motions for 11 summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of 12 what is required of them in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 941 13 (9th Cir. 2012). The Ninth Circuit has set forth model language for such notices: 14 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 15 Rule 56 tells you what you must do in order to oppose a motion for summary 16 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 17 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 18 end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn 19 testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 20 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 21 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 22 judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no 23 trial. 1 Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added); see Wyatt v.
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 SHANELL K. DUNCAN, CASE NO. 3:23-CV-5285-MJP-DWC 9 Plaintiff, ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT 10 v. 11 ALVIN R. ALLEN, et al., 12 Defendant. 13
14 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding 15 with this action pro se and in forma pauperis. Plaintiff is currently incarcerated at the Stafford 16 Creek Corrections Center and is subject to the Court’s Prisoner E-Filing Initiative pursuant to 17 General Order 06-16. The Court, having reviewed plaintiff’s complaint, hereby ORDERS as 18 follows: 19 (2) Service by Clerk 20 The Clerk is directed to send the following to Defendants Alvin R. Allen, Jason Finley, 21 Nouhoum Sidibe, Gaspar Alexander Tomas, Mark Ramos and Amber Tucker by first class mail: 22 a copy of plaintiff’s amended complaint (Dkt. 7), a copy of this Order, two copies of the notice 23 1 of lawsuit and request for waiver of service of summons, a waiver of service of summons, and a 2 return envelope, postage prepaid, addressed to the Clerk’s Office. 3 (3) Response Required 4 Defendant(s) shall have thirty (30) days within which to return the enclosed waiver of
5 service of summons. A defendant who timely returns the signed waiver shall have sixty (60) 6 days after the date designated on the notice of lawsuit to file and serve an answer to the 7 complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure. 8 A defendant who fails to timely return the signed waiver will be personally served with a 9 summons and complaint, and may be required to pay the full costs of such service, pursuant to 10 Rule 4(d)(2) of the Federal Rules of Civil Procedure. 11 (4) Filing and Service by Parties, Generally 12 All attorneys admitted to practice before this Court are required to file documents 13 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, 14 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF.
15 Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand 16 corner the name of the magistrate judge to whom the document is directed. 17 Any document filed with the Court must be accompanied by proof that it has been served 18 upon all parties that have entered a notice of appearance in the underlying matter. Plaintiffs 19 subject to the Court’s E-Filing Initiative shall indicate the date the document is submitted for e- 20 filing as the date of service. 21 (5) Non-State Defendants 22 As a registered user of the Court’s electronic filing system, you must accept electronic 23 service of all court filings (except original service of a complaint) by prisoner litigants housed at 1 facilities actively engaged in the Prisoner E-Filing Initiative. Prisoner litigants incarcerated at 2 facilities actively engaged in the Prisoner E-Filing Initiative are no longer required to serve their 3 court filings on the Court or defendants by mail. Service by mail of your court filings to prison 4 litigants housed in facilities actively engaged in the Prisoner E-Filing Initiative is also no longer
5 required. 6 (6) Motions, Generally 7 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 17 shall 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 19 than 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 1 The party making the motion may file and serve, not later than 11:59 p.m. on the date 2 designated for consideration of the motion, a reply to the opposing party’s briefs and affidavits. 3 (7) Motions to Dismiss and Motions for Summary Judgment 4 Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil
5 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 6 Procedure should acquaint themselves with those rules. As noted above, these motions shall be 7 noted for consideration no earlier than the fourth Friday following filing and service of the 8 motion. 9 Defendants filing motions to dismiss or motions for summary judge are advised that they 10 MUST serve Rand and Wyatt notices concurrently with motions to dismiss and motions for 11 summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of 12 what is required of them in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 941 13 (9th Cir. 2012). The Ninth Circuit has set forth model language for such notices: 14 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 15 Rule 56 tells you what you must do in order to oppose a motion for summary 16 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 17 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 18 end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn 19 testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 20 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 21 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 22 judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no 23 trial. 1 Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added); see Wyatt v. Terhune, 315 2 F.3d 1108, 1120 n.14 (9th Cir. 2003) (extending the fair notice requirement to motions to dismiss 3 for failure to exhaust administrative remedies). 4 Defendants who fail to file and serve the required Rand and Wyatt notices on plaintiff
5 may have their motion stricken from the Court’s calendar with leave to re-file. 6 (8) Direct Communications with District Judge or Magistrate Judge 7 No direct communication is to take place with the District Judge or Magistrate Judge with 8 regard to this case. All relevant information and papers are to be directed to the Clerk. 9 (9) The Clerk is directed to send copies of this Order, and the Court’s pro se 10 instruction sheet to plaintiff. The Clerk is further directed send a copy of this Order and a 11 courtesy copy of plaintiff’s amended complaint to the Pierce County Prosecutor’s Office, by 12 first-class mail. 13 Dated this 17th day of May, 2023. 14 A 15 David W. Christel 16 Chief United States Magistrate Judge 17 18 19 20 21 22 23