Opinion
3:22-cv-05394-RAJ-GJL
06-13-2023
JACOB ANDREW JOHNSTON, Plaintiff, v. CRYSTAL JENNINGS, et al., Defendants.
ORDER DIRECTING SERVICE OF AMENDED COMPLAINT
Grady J. Leupold United States Magistrate Judge.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding with this action pro se and in forma pauperis. Plaintiff is currently incarcerated at the Washington State Penitentiary and is subject to the Court's Prisoner E-Filing Initiative pursuant to General Order 06-16. Plaintiff has filed an Amended Complaint (Dkt. 57-1) and, in a separate Order, this Court has granted Plaintiff leave to amend and directed that the Amended Complaint be docketed as the operative complaint in this matter. The Amended Complaint adds several Defendants who have not previously been served in this matter. The Court therefore ORDERS as follows:
(1) Service by Clerk
The Clerk is directed to send the following to newly added Defendants CUS French, Peterson, Miller, Sgt. Barcelona, Sgt. Fick, MHP Buckingham and R.N. Rose (the “Newly Added Defendants”) by e- mail: a copy of the Amended Complaint (Dkt. 57-1), a copy of this Order, a copy of the notice of lawsuit and request for waiver of service of summons, and a waiver of service of summons.
(2) Response Required
The Newly Added Defendant(s) shall have thirty (30) days within which to return the enclosed waiver of service of summons. A defendant who timely returns the signed waiver shall have sixty (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.
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.
(3) John Doe and Jane Doe Defendants
Plaintiff has also named two “John Does” as defendants. Dkt. 57-1 at 5. Plaintiff is cautioned that the use of “John Doe” to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Although a plaintiff may be given an opportunity after filing a lawsuit to discover the identity of unknown defendants through discovery, the use of Doe defendants is problematic because those persons cannot be served with process until they are identified by their real names. If plaintiff does not provide the names of the defendants identified as Jane/John Doe so that they can be served within 90 days of this order, they may be subject to dismissal. Fed.R.Civ.P. 4(m).
(4) Correction of Docket
The docket lists a Defendant “Dean Mason,” who is not listed as a Defendant in the Amended Complaint and who has not entered a waiver of service or notice of appearance. Because the Amended Complaint serves as a complete substitute for the original complaint, the Clerk is directed to terminate Dean Mason as a Defendant.
Moreover, some existing Defendants who have filed waivers of service have corrected the spelling of their names. The Clerk is directed to make corresponding changes to the docket as follows:
• Change Defendant “Jessica Hurrara” to “Jessica Herrera;”
• Change Defendant “Sgt. Michpherson” to “Sgt. Patrick McPherson.”
(5) 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 subject to the Court's E-Filing Initiative shall indicate the date the document is submitted for efiling as the date of service.
(6) Non-State Defendants
As a registered user of the Court's electronic filing system, you must accept electronic service of all court filings (except original service of a complaint) by prisoner litigants housed at facilities actively engaged in the Prisoner E-Filing Initiative. Prisoner litigants incarcerated at facilities actively engaged in the Prisoner E-Filing Initiative are no longer required to serve their court filings on the Court or defendants by mail. Service by mail of your court filings to prison litigants housed in facilities actively engaged in the Prisoner E-Filing Initiative is also no longer required.
(7) 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 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.
(8) 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:
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.
(9) 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.
(10) The Clerk is directed to send copies of this Order, and of the Court's pro se instruction sheet to plaintiff. The Clerk is further directed to send a copy of this Order and a courtesy copy of the complaint to the Washington State Attorney General's Office by e-mail.
Instructions to a Prisoner Pro Se Plaintiff/Petitioner - Mandatory E-Filer
Your suit was filed and has been assigned case number 3:22-cv-5394-RAJ-GJL. These instructions do not include everything you need to know to pursue your case, but following them may help you avoid common mistakes.
Filing and Serving Generally - After a defendant/respondent has been served with your complaint/petition, all documents and motions you file with the Court will be electronically served on defendant/respondent's attorney (or on defendant/respondent if the defendant/respondent is pro se). All documents and motions you file must contain a Certificate of Service reflecting that you served the defendant/respondent. This is an example of language you may use:
I hereby certify that on [insert date], I submitted a copy of the foregoing document to the law librarian of [insert name of institution] for electronic filing.
[Signature]
You must type or legibly handwrite (with dark ink if possible) your documents on one side of sequentially numbered pages. Any exhibit or discovery material attached to the filing must be referred to in the filing. Any exhibit or discovery material not referred to in your filing or not attached to your filing may be returned to you.
You must place your case number on all documents you file. If you have more than one case and are filing the same document in each case, you must prepare separate documents to file in each case.
You must remove certain personal identifying information in all papers filed with the Court, including: dates of birth, names of minor children, and social security, financial account, passport, and driver license numbers.
Filing Motions - If you want the Court to take an action, you must file a written motion stating what you want the Court to do and provide your reasons for the action. Place the title of your motion in the caption along with a noting date for the Court to review your motion:
• Note these motions for the day they are filed: (1) stipulated, agreed, and joint submissions; (2) request for over-length pleading; (3) reconsideration; (4) default;
• Note these motions three Fridays after filing: (1) other non-dispositive motions; (2) relief from deadline; (3) protective order; (4) seal; (5) default (where opposing party has appeared); (6) to compel discovery; (7) quash.
• Note these motions four Fridays after filing: (1) dispositive motions (dismissal and summary judgment); (2) preliminary injunctions.
Change of Address - You must inform the Court and opposing parties promptly if you change your address. If you fail to do so, your case may be dismissed.
Discovery Materials - Do not file discovery materials (i.e., interrogatories, requests for production and/or admissions). If you file a motion to compel discovery, you may attach only the portions of discovery that are relevant to your motion.
Questions About Your Case - Do not write letters to the District Judge or Magistrate Judge asking questions about your case - all communication with the Court should be through motions. Do not write letters to the Clerk asking for instructions on how to handle your case as the Clerk is prohibited from giving legal advice.
Lack of Action - It is important that you take action after you start your lawsuit. If more than one year passes without any activity, the Court may dismiss your case for lack of prosecution.