Roberts v. Thrasher

Opinion

WESTERN DISTRICT OF WASHINGTON Plaintiff, CASE NO. 2:20-cv-00376-RSM-BAT v. ORDER DIRECTING CLERK TO MARK DOCKET #43 AS TIM THRASHER, et al., WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO Defendant. AMEND THE COMPLAINT AND DEFENDANTS’ MOTION FOR EXTENSION, AND DIRECTING SERVICE This matter comes before the Court on plaintiff’s motions to file an amended complaint and defendants’ motion for an extension of time to file an answer. Dkts. 43, 72, 74. On September 28, 2020, plaintiff moved to amend his complaint but failed to submit a full copy of his proposed amended complaint. Dkt. 43. The Court directed plaintiff to provide the missing pages of his proposed amended complaint and indicated it would rule on the motion to amend when plaintiff had done so. Dkt. 73. Instead, plaintiff filed a new motion to amend his complaint. Dkt. 74. It appears based upon plaintiff’s filings that he intends to withdraw his previously filed motion to amend, which the Court had not yet ruled upon, and for the Court to instead consider his newly filed motion to amend and proposed amended complaint. Accordingly, the Clerk is directed to mark plaintiff’s first motion to amend (Dkt. 43) as WITHDRAWN. DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO The Court will now turn to the merits of plaintiff’s newly filed motion to amend (Dkt. 74). Defendants do not oppose plaintiff’s motion to amend but ask that the Court screen the amended complaint noting that the Court had previously dismissed several claims which were duplicative of plaintiff’s claims in other pending actions. Dkt. 75. Because defendants have not

yet filed a responsive pleading plaintiff may amend his complaint as a matter of course. See Fed. R. Civ. P. 15(a). Accordingly, plaintiff’s newly filed motion to amend (Dkt. 74) is GRANTED except to the extent that it seeks to add any claims which were previously dismissed as duplicative of claims raised in other pending actions (see Dkts. 24, 28). The Clerk is directed to docket plaintiff’s proposed amended complaint (Dkt. 74-1) as the amended complaint in this action. In light of plaintiff’s motions to amend the complaint, defendants also moved for an extension of time to file their answers and request that the answers of the newly named defendants and the existing defendants be due on the same date. Dkts. 72, 75. Defendants’ motion (Dkt. 72) is GRANTED. Defendants’ answers will all be due on February 19, 2021, as

described below. The Court further orders: a. Service by Clerk Plaintiff is currently incarcerated at Monroe Correctional Complex-Reformatory (WSR) and is subject to Mandatory Electronic E-Filing pursuant to General Orders 02-15 and 06-16. The Clerk is directed to send the following to the newly named defendants listed below by e- mail: copies of plaintiff’s Amended Complaint (Dkt. 74-1), this Order, the notice of lawsuit and request for waiver of service of summons, and a waiver of service of summons: DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO Defendants Eric Burt grievance coordinator WSP H. Griffith grievance coordinator WSP James Rogers WSP classification counselor David Brower WSP lieutenant S. Sundberg DOC employee Paree Farr WSP nurse D. French custodial unit supervisor WCW - IMU Sherry MCC-SOU-ITU Pendergrass classification counselor Daniel W. superintendent WCC White Department of Corrections Lee Rome chief psychiatry DOC Lee Sowers chief psychologist DOC Adam WSP Sgt. in infirmary Kolowinski 3/20-5/20 Jonathan WSP Physician’s Reyes Hugo Assistant Paul McDole WSP Corrections Officer

Ronald WSP Corrections Benjamin Officer James WSP Corrections Nauschwander Officer Jill Ansorge WSP Corrections Officer Cody Havens WSP Corrections Officer Dakota Hayes WSP Corrections Officer Kevin Dahlby WSP Corrections Officer DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO Cynthia Mason Psychologist MCC

The Court declines to direct service against “John Doe” at this time as that individual has not been sufficiently identified. b. Previously Served/Existing Defendants and Terminated Defendants The Court notes that the following defendants were previously served and are named again in the amended complaint and thus remain as defendants in the action: Tim Thrasher DOC Housing Coordinator Director Karie Rainer Director Mental Health DOC Scott Russell Prisons Command Director Crystal WSP – supervisor Contreras Mental Health staff Donald WSP Superintendent Holbrook Arben Kullejka MCC – custody unit supervisor Todd Saunders MCC – classification counselor Allison WSP – legal liaison Windows Susan Hussey WSP - nurse Kathy Jackson WSP - nurse Lindsay MCC – psych McIntyre associate Vilma MCC – psych Khounphixay associate Valerie MCC – psych Herrington associate Hailee Jiminez MCC – psych associate Rachael MCC – psych Symons associate Nicolette WSP – psych associate Phillips DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO Lisa Robtoy WSP – psych associate Scott Buttice WSP custody unit supervisor Joshua Slater WSP psych associate The Clerk is directed to terminate the following defendants from the docket as they are no longer named as defendants in the amended complaint: Bruce Gage MCC – supervisor MH staff Jack Warner MCC – supervisor/supt Lisa Anderson MCC – assoc supt Chris Bowman WSP – assoc supt Katrina WSP – custody unit Suckow supervisor Patricia Zeisler MCC – psych ass Steven Jewitt MCC – psych Dan MCC - psych Sneweisser Jane Does 1-5 MCC - nurses John Does 1-4 MCC - nurses

c. Response Required The newly named (previously unserved) defendants listed above shall have thirty (30) days within which to return the enclosed waiver of service of summons. A defendant who fails to timely return the signed waiver will be personally served with a summons and complaint, and may be required to pay the full costs of such service, pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has been personally served shall file an answer or motion permitted under Rule 12 within twenty-one (21) days after service. DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO All defendants named in the amended complaint must serve their answers to the complaint or motions permitted under Rule 12 of the Federal Rules of Civil Procedure, on or before February 19, 2021. d. Filing and Service by Parties, Generally

All attorneys admitted to practice before this Court are required to file documents electronically via the Court’s CM/ECF system. Counsel are directed to the Court’s website, www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF. Plaintiff shall file all documents electronically. All filings must indicate in the upper right hand corner the name of the magistrate judge to whom the document is directed. Any document filed with the Court must be accompanied by proof that it has been served upon all parties that have entered a notice of appearance in the underlying matter. Plaintiffs shall indicate the date the document is submitted for e-filing as the date of service. e. Motions, Generally Any request for court action shall be set forth in a motion, properly filed and served.

Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a part of the motion itself and not in a separate document. The motion shall include in its caption (immediately below the title of the motion) a designation of the date the motion is to be noted for consideration upon the Court’s motion calendar. Stipulated and agreed motions, motions to file over-length motions or briefs, motions for reconsideration, joint submissions pursuant to the option procedure established in LCR 37(a)(2), motions for default, requests for the clerk to enter default judgment, and motions for the court to enter default judgment where the opposing party has not appeared shall be noted for DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO consideration on the day they are filed. See LCR 7(d)(1). All other non-dispositive motions shall be noted for consideration no earlier than the third Friday following filing and service of the motion. See LCR 7(d)(3). All dispositive motions shall be noted for consideration no earlier than the fourth Friday following filing and service of the motion. Id.

For electronic filers, all briefs and affidavits in opposition to either a dispositive or non- dispositive motion shall be filed and served not later than 11:59 p.m. on the Monday immediately preceding the date designated for consideration of the motion. The party making the motion may electronically file and serve not later than 11:59 p.m. on the date designated for consideration of the motion, a reply to the opposing party’s briefs and affidavits. f. Motions to Dismiss and Motions for Summary Judgment Parties filing motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure and motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure should acquaint themselves with those rules. As noted above, these motions shall be

noted for consideration no earlier than the fourth Friday following filing and service of the motion. Defendants filing motions to dismiss based on a failure to exhaust or motions for summary judge are advised that they MUST serve a Rand notice concurrently with motions to dismiss based on a failure to exhaust and motions for summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of what is required of them in order to oppose those motions. Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012). The Ninth Circuit has set forth model language for such notices: DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 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.

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. The Clerk is directed to send copies of this Order to the parties. DATED this 18th day of December, 2020. A BRIAN A. TSUCHIDA United States Magistrate Judge DOCKET #43 AS WITHDRAWN, GRANTING PLAINTIFF’S MOTION TO