Lewis v. Baird

4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA JUSTIN EDWARD LEWIS, Case No. C19-5653-TLF 7 Plaintiff, v. ORDER SETTING NEW BRIEFING 8 SCHEDULE AND DIRECTING CALEB BAIRD, DEFENDANT TO PROVIDE RAND 9 NOTICE Defendants.

11 This matter comes before the Court on defendant Caleb Baird’s motion to dismiss. Dkt. 24. Plaintiff is proceeding pro se and in forma pauperis, and has brought these claims against defendant under 42 U.S.C. § 1983. Plaintiff has not filed a response to defendant’s motion to dismiss.

15 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. 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 21 F.3d 952 (9th Cir. 1998) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003).

22 Although plaintiff was provided with Woods notice in the Court’s Order Directing Service (Dkt. 17), the United States Court of Appeals for 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.

2 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.

5 Accordingly, it is ORDERED: 6 (1) Defendant 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 May 11, 2020.

9 (2) Plaintiff may file a response opposing defendant’s motion to dismiss (Dkt.

10 24) no later than June 15, 2020.

11 (3) If plaintiff files a response, defendant may file a reply no later than June 19, 2020.

13 (4) The Clerk shall send a copy of this Order to plaintiff and counsel for defendant.

15 (5) The Clerk is directed to re-note defendant’s motion to dismiss (Dkt. 24) for consideration on June 19, 2020.

17 Dated this 22nd day of April, 2020.

A Theresa L. Fricke United States Magistrate Judge