Rhodes v. Sinclair

4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA JOSEPH RHODES, Case No. C19-5440 RBL-TLF 7 Plaintiff, v. ORDER SETTING NEW BRIEFING 8 SCHEDULE CLARK COUNTY, Defendants.

11 This matter comes before the Court on Defendant Clark County’s motion to dismiss. Dkt.

12 26. This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec’y of H.E.W.

13 v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). Plaintiff is proceeding pro se and in forma pauperis, and has brought these claims against several defendants under 42 U.S.C. § 1983. Plaintiff has not filed a response to defendant Clark County’s motion to dismiss.

17 The Ninth Circuit Court of Appeals requires pro se prisoner-plaintiffs to be provided notice of what is required to oppose a motion to dismiss or motion for summary judgment.

19 Woods v. Carey, 684 F.3d 934, 935, 940-41 (9th Cir. 2012). This notice “must be served concurrently with motions to dismiss and motions for summary judgment.” Id. at 935. Defendant Clark County did not serve plaintiff with notice consistent with Woods and in accordance with the holdings in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) and Wyatt v. Terhune, 315 F.3d 23 1108 (9th Cir. 2003).

1 Although plaintiff was provided with Woods notice in the Court’s Order Directing Service (Dkt. 7) as well as motions previously filed by the other defendants in this matter (Dkts.

3 9, 21), the Ninth Circuit has mandated that notice must be given at the time of filing of the motion. Woods, 684 F.3d at 940-41. Out of an abundance of caution, therefore, the Court finds that a new briefing schedule, to give plaintiff proper notice and allow for responsive briefing, in accordance with Woods is appropriate.

7 Accordingly, it is ORDERED: 8 (1) Defendant Clark County is directed to serve plaintiff with proper notice of what is required to oppose a motion to dismiss or motion for summary judgment pursuant to Woods and Rand by no later than November 15, 2019.

11 (2) Plaintiff may file a response opposing Defendant Clark County’s motion to dismiss (Dkt. 26) no later than November 29, 2019.

13 (3) If plaintiff files a response, Defendant Clark County may file a reply no later than December 13, 2019.

15 (4) The Clerk shall send a copy of this Order to plaintiff and counsel for Defendant Clark County.

17 (5) The Clerk is directed to re-note all pending motions (Dkts. 8, 20, 26) for consideration on December 13, 2019.

19 Dated this 1st day of November, 2019.

A Theresa L. Fricke 23 United States Magistrate Judge