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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SHANELL K. DUNCAN, CASE NO. 3:23-CV-5285-MJP-DWC 11 Plaintiff, v. ORDER DIRECTING SERVICE OF 12 CIVIL RIGHTS COMPLAINT ON ALVIN R. ALLEN, et al., DEFENDANTS MARTIN AND 13 RAIDER Defendants. 14
15 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding 16 with this action pro se and in forma pauperis. On September 19, 2023, the Court granted 17 Plaintiff leave to file an amended complaint. Dkt. 29. On September 26, 2023, Plaintiff filed the 18 Amended Complaint. Dkt. 30. In the Amended Complaint, Plaintiff names Maria Martin and 19 Maria Raider as defendants. Id. Defendants Martin and Raider were not served with the 20 Amended Complaint and counsel has not entered an appearance on their behalf. See Docket; also 21 Dkt. 35-1 (defendants did not file the motion to dismiss on behalf of Defendants Martin or 22 Raider). Plaintiff has now filed a Motion requesting the Court serve Defendants Martin and 23 Raider. Dkt. 43. 24 1 The record reflects Defendants Martin and Raider, through inadvertence, were not served. 2 As Defendants have proceeded on the Amended Complaint, the Court finds it appropriate to 3 serve Defendants Martin and Raider. Accordingly, Plaintiff’s Motion (Dkt. 43) is GRANTED 4 and the Court ORDERS as follows:
5 (1) Service by Clerk 6 The Clerk is directed to send the following to Defendants Maria Martin and Maria Raider 7 by first class mail: a copy of plaintiff’s amended complaint (Dkt. 30), a copy of this Order, two 8 copies of the notice of lawsuit and request for waiver of service of summons, a waiver of service 9 of summons, and a return envelope, postage prepaid, addressed to the Clerk’s Office. 10 (2) 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. 18 (3) Filing and Service by Parties, Generally 19 All attorneys admitted to practice before this Court are required to file documents 20 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, 21 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF. 22 Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand 23 corner the name of the magistrate judge to whom the document is directed.
24 1 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 Initiative shall indicate the date the document is submitted for e- 4 filing as the date of service.
5 (4) Non-State Defendants 6 As a registered user of the Court’s electronic filing system, you must accept electronic 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 incarcerated 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. 13 (5) Motions, Generally 14 Any request for court action shall be set forth in a motion, properly filed and served.
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. 19 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
24 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. 4 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. 7 The party making the motion may file and serve, not later than 11:59 p.m. on the date 8 designated for consideration of the motion, a reply to the opposing party’s briefs and affidavits. 9 (6) Motions to Dismiss and Motions for Summary Judgment 10 Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil 11 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 12 Procedure should acquaint themselves with those rules. As noted above, these motions shall be 13 noted for consideration no earlier than the fourth Friday following filing and service of the 14 motion.
15 Defendants filing motions to dismiss or motions for summary judge are advised that they 16 MUST serve Rand and Wyatt notices concurrently with motions to dismiss and motions for 17 summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of 18 what is required of them in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 941 19 (9th Cir. 2012). The Ninth Circuit has set forth model language for such notices: 20 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 21 Rule 56 tells you what you must do in order to oppose a motion for summary 22 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 23 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 24 1 suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your 2 complaint says.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SHANELL K. DUNCAN, CASE NO. 3:23-CV-5285-MJP-DWC 11 Plaintiff, v. ORDER DIRECTING SERVICE OF 12 CIVIL RIGHTS COMPLAINT ON ALVIN R. ALLEN, et al., DEFENDANTS MARTIN AND 13 RAIDER Defendants. 14
15 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding 16 with this action pro se and in forma pauperis. On September 19, 2023, the Court granted 17 Plaintiff leave to file an amended complaint. Dkt. 29. On September 26, 2023, Plaintiff filed the 18 Amended Complaint. Dkt. 30. In the Amended Complaint, Plaintiff names Maria Martin and 19 Maria Raider as defendants. Id. Defendants Martin and Raider were not served with the 20 Amended Complaint and counsel has not entered an appearance on their behalf. See Docket; also 21 Dkt. 35-1 (defendants did not file the motion to dismiss on behalf of Defendants Martin or 22 Raider). Plaintiff has now filed a Motion requesting the Court serve Defendants Martin and 23 Raider. Dkt. 43. 24 1 The record reflects Defendants Martin and Raider, through inadvertence, were not served. 2 As Defendants have proceeded on the Amended Complaint, the Court finds it appropriate to 3 serve Defendants Martin and Raider. Accordingly, Plaintiff’s Motion (Dkt. 43) is GRANTED 4 and the Court ORDERS as follows:
5 (1) Service by Clerk 6 The Clerk is directed to send the following to Defendants Maria Martin and Maria Raider 7 by first class mail: a copy of plaintiff’s amended complaint (Dkt. 30), a copy of this Order, two 8 copies of the notice of lawsuit and request for waiver of service of summons, a waiver of service 9 of summons, and a return envelope, postage prepaid, addressed to the Clerk’s Office. 10 (2) 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. 18 (3) Filing and Service by Parties, Generally 19 All attorneys admitted to practice before this Court are required to file documents 20 electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, 21 www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF. 22 Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand 23 corner the name of the magistrate judge to whom the document is directed.
24 1 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 Initiative shall indicate the date the document is submitted for e- 4 filing as the date of service.
5 (4) Non-State Defendants 6 As a registered user of the Court’s electronic filing system, you must accept electronic 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 incarcerated 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. 13 (5) Motions, Generally 14 Any request for court action shall be set forth in a motion, properly filed and served.
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. 19 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
24 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. 4 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. 7 The party making the motion may file and serve, not later than 11:59 p.m. on the date 8 designated for consideration of the motion, a reply to the opposing party’s briefs and affidavits. 9 (6) Motions to Dismiss and Motions for Summary Judgment 10 Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil 11 Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 12 Procedure should acquaint themselves with those rules. As noted above, these motions shall be 13 noted for consideration no earlier than the fourth Friday following filing and service of the 14 motion.
15 Defendants filing motions to dismiss or motions for summary judge are advised that they 16 MUST serve Rand and Wyatt notices concurrently with motions to dismiss and motions for 17 summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of 18 what is required of them in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 941 19 (9th Cir. 2012). The Ninth Circuit has set forth model language for such notices: 20 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 21 Rule 56 tells you what you must do in order to oppose a motion for summary 22 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 23 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 24 1 suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your 2 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as 3 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 4 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 5 is granted, your case will be dismissed and there will be no trial.
6 Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (emphasis added); see Wyatt v. Terhune, 7 315 F.3d 1108, 1120 n.14 (9th Cir. 2003) (extending the fair notice requirement to motions to 8 dismiss for failure to exhaust administrative remedies). 9 Defendants who fail to file and serve the required Rand and Wyatt notices on plaintiff 10 may have their motion stricken from the Court’s calendar with leave to re-file. 11 (7) Direct Communications with District Judge or Magistrate Judge 12 No direct communication is to take place with the District Judge or Magistrate Judge with 13 regard to this case. All relevant information and papers are to be directed to the Clerk. 14 (8) The Clerk is directed to send copies of this Order to plaintiff. The Clerk is further 15 directed send a copy of this Order and a courtesy copy of plaintiff’s amended complaint (Dkt. 16 30) to the Pierce County Prosecutor’s Office, by first-class mail. 17 Dated this 29th day of February, 2024. 18 A 19 David W. Christel Chief United States Magistrate Judge 20 21 22 23 24