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Leshowitz v. Collins

United States District Court, W.D. Washington, Seattle

March 20, 2017

SCOTT P LESHOWITZ, Plaintiff,
v.
SUE COLLINS, et al., Defendants.

          ORDER DIRECTING SERVICE BY FIRST-CLASS MAIL AND PROCEDURES

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         The Court, having reviewed plaintiff's amended complaint (Dkt. 21), the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge, and the remaining record, does hereby find and ORDER:

(1) The Court adopts the Report and Recommendation.
(2) Plaintiff's claims against Sue Collins, Mark Bergquist, Sergeant Wilmoth, and any other named or unnamed defendants in this matter are DISMISSED without prejudice for failure to state a claim on which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). With the exception of the excessive force claim discussed in the Report and Recommendation, plaintiff's claims against Michael Bisson are also DISMISSED without prejudice for failure to state a claim on which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii).
(3) Plaintiff is directed to submit a concise statement explaining to the Court and to defendant the specific request for relief plaintiff he seeks no later than fourteen (14) days from the date of entry of this Order.
(4) Service by Clerk

         The Clerk is directed to send the following to defendant Michael Bisson (“defendant”) by first class mail: a copy of plaintiff's amended complaint and attachments, the Report and Recommendation and this Order, two copies of the Notice of Lawsuit and Request for Waiver of Service of Summons, a Waiver of Service of Summons, and a return envelope, postage prepaid, addressed to the Clerk's office.

         The Clerk shall also send a courtesy copy of this Order to the Washington State Attorney General's Office, by first-class mail.

         (5) Response Required

         Defendant shall have 30 days within which to return the enclosed waiver of service of summons. If defendant timely returns the signed waiver, defendant shall have 60 days after the date designated on the notice of lawsuit to file and serve an answer to the complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure.

         If defendant fails to timely return the signed waiver, defendant 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). A defendant who has been personally served shall file an answer or motion permitted under Rule 12 within 30 days after service.

         Defendant MUST serve a Rand notice concurrently with any 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 (9th Cir. 2012). The Ninth Circuit set forth model language for such notices:

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 ...

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