Lewis v. Baird

W.D. Washington

Lewis v. Baird

DecidedApril 22, 2020

Docket3:19-cv-05653

StatusUnknown

This text of Lewis v. Baird (Lewis v. Baird) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lewis v. Baird, (W.D. Wash. 2020).

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JUSTIN EDWARD LEWIS, Case No. C19-5653-TLF 7 Plaintiff, v. ORDER SETTING NEW BRIEFING 8 SCHEDULE AND DIRECTING CALEB BAIRD, DEFENDANT TO PROVIDE RAND 9 NOTICE Defendants. 10

11 This matter comes before the Court on defendant Caleb Baird’s motion to 12 dismiss. Dkt. 24. Plaintiff is proceeding pro se and in forma pauperis, and has brought 13 these claims against defendant under 42 U.S.C. § 1983. Plaintiff has not filed a 14 response to defendant’s motion to dismiss. 15 The Ninth Circuit Court of Appeals requires pro se prisoner-plaintiffs to be 16 provided notice of what is required to oppose a motion to dismiss or motion for 17 summary judgment. Woods v. Carey, 684 F.3d 934, 935, 940-41 (9th Cir. 2012). This 18 notice “must be served concurrently with motions to dismiss and motions for summary 19 judgment.” Id. at 935. Defendant Clark County did not serve plaintiff with notice 20 consistent with Woods and in accordance with the holdings in Rand v. Rowland, 154 21 F.3d 952 (9th Cir. 1998) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). 22 Although plaintiff was provided with Woods notice in the Court’s Order Directing 23 Service (Dkt. 17), the United States Court of Appeals for the Ninth Circuit has mandated 24 1 that notice must be given at the time of filing of the motion. Woods, 684 F.3d at 940-41. 2 Out of an abundance of caution, therefore, the Court finds that a new briefing schedule, 3 to give plaintiff proper notice and allow for responsive briefing, in accordance with 4 Woods is appropriate.

5 Accordingly, it is ORDERED: 6 (1) Defendant is directed to serve plaintiff with proper notice of what is 7 required to oppose a motion to dismiss or motion for summary judgment pursuant to 8 Woods and Rand by no later than May 11, 2020. 9 (2) Plaintiff may file a response opposing defendant’s motion to dismiss (Dkt. 10 24) no later than June 15, 2020. 11 (3) If plaintiff files a response, defendant may file a reply no later than June 12 19, 2020. 13 (4) The Clerk shall send a copy of this Order to plaintiff and counsel for 14 defendant.

15 (5) The Clerk is directed to re-note defendant’s motion to dismiss (Dkt. 24) for 16 consideration on June 19, 2020. 17 Dated this 22nd day of April, 2020. 18 19 A 20 Theresa L. Fricke United States Magistrate Judge 21 22 23 24

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JUSTIN EDWARD LEWIS, Case No. C19-5653-TLF 7 Plaintiff, v. ORDER SETTING NEW BRIEFING 8 SCHEDULE AND DIRECTING CALEB BAIRD, DEFENDANT TO PROVIDE RAND 9 NOTICE Defendants. 10

11 This matter comes before the Court on defendant Caleb Baird’s motion to 12 dismiss. Dkt. 24. Plaintiff is proceeding pro se and in forma pauperis, and has brought 13 these claims against defendant under 42 U.S.C. § 1983. Plaintiff has not filed a 14 response to defendant’s motion to dismiss. 15 The Ninth Circuit Court of Appeals requires pro se prisoner-plaintiffs to be 16 provided notice of what is required to oppose a motion to dismiss or motion for 17 summary judgment. Woods v. Carey, 684 F.3d 934, 935, 940-41 (9th Cir. 2012). This 18 notice “must be served concurrently with motions to dismiss and motions for summary 19 judgment.” Id. at 935. Defendant Clark County did not serve plaintiff with notice 20 consistent with Woods and in accordance with the holdings in Rand v. Rowland, 154 21 F.3d 952 (9th Cir. 1998) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). 22 Although plaintiff was provided with Woods notice in the Court’s Order Directing 23 Service (Dkt. 17), the United States Court of Appeals for the Ninth Circuit has mandated 24 1 that notice must be given at the time of filing of the motion. Woods, 684 F.3d at 940-41. 2 Out of an abundance of caution, therefore, the Court finds that a new briefing schedule, 3 to give plaintiff proper notice and allow for responsive briefing, in accordance with 4 Woods is appropriate.

5 Accordingly, it is ORDERED: 6 (1) Defendant is directed to serve plaintiff with proper notice of what is 7 required to oppose a motion to dismiss or motion for summary judgment pursuant to 8 Woods and Rand by no later than May 11, 2020. 9 (2) Plaintiff may file a response opposing defendant’s motion to dismiss (Dkt. 10 24) no later than June 15, 2020. 11 (3) If plaintiff files a response, defendant may file a reply no later than June 12 19, 2020. 13 (4) The Clerk shall send a copy of this Order to plaintiff and counsel for 14 defendant.

15 (5) The Clerk is directed to re-note defendant’s motion to dismiss (Dkt. 24) for 16 consideration on June 19, 2020. 17 Dated this 22nd day of April, 2020. 18 19 A 20 Theresa L. Fricke United States Magistrate Judge 21 22 23 24

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