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Davis v. Hayes

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

June 13, 2017

KEITH ADAIR DAVIS, Plaintiff,
v.
WILLIAM HAYES, et al., Defendants.

          ORDER DIRECTING SERVICE OF AMENDED COMPLAINT

          BRIAN A. TSUCHIDA United States Magistrate Judge

         On April 14, 2017, the Court dismissed all of plaintiff's claims except his claim that Defendants Gorman, McKindry, Bliss, and Elerick used excessive force against him in August and September 2014 and August 2016. Dkt. 30. The Court's Order was sent to these defendants, but it is not clear whether they were properly served with the Amended Complaint.

         Accordingly, it is ORDERED that the Amended Complaint (Dkt. 20) shall be served on defendants Gorman, McKindry, Bliss, and Elerick only and these defendants shall be required to file an answer only as to the excessive force claims:

         (1) Service by Clerk

         The Clerk is directed to send the following to defendants Gorman, McKindry, Bliss, and Elerick by first class mail: copies of plaintiff's amended complaint (Dkt. 20) and the Court's Order (Dkt. 30), 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 the above-named documents and of this Order to the King County Prosecutor's Office, by first-class mail.

         (2) Response Required

         Defendants shall have 30 days within which to return the enclosed waiver of service of summons. Any defendant who timely returns the signed waiver 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.

         Any 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). A defendant who has been personally served shall file an answer or motion permitted under Rule 12 within 30 days after service.

         Defendants 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 (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 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, 962-63 (9th Cir. 1998) (emphasis added).

         Defendants who do not file and serve, in a separate document, the required Rand notice will face (a) immediate denial of their motions with leave to refile and (b) possible monetary sanctions.

         (3) Filing and Service ...


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