CROWLEY v. DEP'T OF CORRECTIONS

JOHN L. WEINBERG, United States Magistrate Judge

Plaintiff is proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 action He raises various claims regarding the process used by state officials to find that he violated a term of his probation, and regarding his subsequent detention under the jurisdiction of the Washington State Department of Corrections It is unclear which of plaintiff's claims, if any, are barred by Heck v Humphrey, 512 U S 477, 486-87 (1994) Service is therefore ORDERED

(1) Service by Clerk

The Clerk is directed to send the following to defendant(s) by first class mail a copy of the Complaint with attachments and of 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.

Defendant(s) shall have thirty (30) days within which to return the enclosed Waiver of Service of Summons. If a defendant timely returns the signed Waiver, he/she 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 If a defendant fails to timely return the signed Waiver, he/she 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 is personally served must file an answer or motion permitted under Rule 12 within thirty (30) days after service

(2) Filing and Service by Parties. Generally

All original documents and papers submitted for consideration by the Court in this case, and a duplicate of all such papers, are to be filed with the Clerk of this Court The originals and copies of all such papers shall indicate in the upper right-hand corner the name of the Magistrate Judge to whom the copies are to be delivered The papers shall be accompanied by proof that such documents have been served upon counsel for the opposing party (or upon any party acting pro se). The proof shall show the day and manner of service and may be written acknowledgment of service, by certificate of a member of the bar of this Court, or by affidavit of the person who served the papers.

(3) Motions

Any request for Court action shall be set forth in a motion, properly filed and served Pursuant to amended Local Rule CR 7(b) (2002), 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 overlength motions or briefs, motions for reconsideration, joint submissions pursuant to the option procedure established in CR 37(a)(2)(B), 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 Local Rule CR 7(d)(1)(2002) All other non-dispositive motions shall be noted for consideration no earlier than the third Friday following filing and service of the motion. See Local Rule CR 7(d)(3)(2002) All dispositive motions shall be noted for consideration no earlier than the fourth Friday following filing and service of the motion. Id.

All briefs and affidavits in opposition to any non-dispositive motion not specifically identified in the opening sentence of the preceding paragraph and to any dispositive motion shall be filed and served not later than 4.30 p.m. on the Monday immediately preceding the date designated for consideration of the motion. If a party fails to file and serve timely opposition to a motion, the court may deem any opposition to be without merit. The party making the motion may file and serve, not later than 4:30 p.m on the judicial day immediately preceding the date designated for consideration of the motion, a response to the opposing party's briefs and affidavits.

(4) Motions for Summary Judgment

If one of the parties files a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, the opposing party should acquaint him/herself with Rule 56 Rule 56 requires a nonmoving party to submit affidavits or other evidence in opposition to a motion for summary judgment if the moving party has shown the absence of issues of material fact and an entitlement to judgment as a matter of law. A nonmoving party may not rest upon the mere allegations or denials of prior pleadings. Rather, successful opposition to a motion for summary judgment requires the nonmoving party to set forth, through affidavits or other evidence, specific facts showing a genuine issue for trial. Failure by the nonmoving party to oppose a summary judgment motion or to present counter evidence could result in the Court accepting the moving party's evidence as the truth, and entering final judgment in favor of the moving party without a full trial. Rand v Rowland, 154 F.3d 952 (9th Cir 1998)

(5) 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

(6) The Clerk shall send a copy of this order and the General Order regarding pro se litigation to plaintiff, and a copy of this order to the Hon Thomas S Zilly

IN RE: SUMMARY OF PROCEDURAL RULES (for distribution in cases where plaintiff/petitioner is proceeding pro se)

The following paragraphs summarize certain local rules of the Court and other procedural matters. It is intended for the benefit of plaintiff/petitioners proceeding pro se

It is hereby ORDERED that:

(1) The summons and complaint must be served on each defendant/respondent within four months after the filing of the complaint. If service has not been made in that time, and good cause is not shown for that failure, the action can be dismissed without prejudice.

(2) All pleadings submitted for consideration by the court must be filed on short paper (8½ by 11 inches) Pleadings submitted on longer paper will be returned, and will not be filed.

(3) All original documents and papers submitted for consideration by the Court in this case, and a duplicate of all such papers, are to be filed with the Clerk of this Court. The originals and copies of all such papers shall indicate in the upper right-hand corner the name of the District Judge or Magistrate Judge to whom the copies are to be delivered. The papers shall be accompanied by proof that such documents have been served upon counsel for the opposing party (or upon any party acting pro se Service is accomplished by mailing a true and correct copy of the document to each defendant/respondent's counsel. The proof of service shall show the day and manner of service and may be written acknowledgment of service, by certificate of a member of the bar of this Court, or by affidavit of the person who served the papers. If a party fails to comply with this Order, the Court will disregard the submitted document.

(4) Any request for court action shall be set forth in a motion, not in a letter or other document. A party must file and serve with the motion a supporting memorandum. The motion shall include in its caption (immediately below the title of the motion) a designation of the Friday upon which the motion is to be noted upon the court's calendar. That date shall be the third Friday following filing of the motion (fourth Friday for motions for preliminary injunction, to dismiss, for summary judgment, and other dispositive motions). All briefs and affidavits in opposition to any motion shall be filed and served not later than 4:30 p.m. on the Monday immediately preceding the Friday appointed for consideration of the motion. If service is by mail, the brief and any supporting materials shall be mailed not later than the Friday preceding the Friday on which the motion is noted. If a party fails to file and serve timely opposition to a motion, the Court may deem any opposition to be without merit. The party making the motion may file, not later than 4:30 p.m. on the Thursday immediately preceding the Friday designated for consideration of the motion, a response to the opposing party's briefs and affidavits. The motion and supporting memorandum, as well as any opposition or response, must be served and filed according to paragraph (3) above.

(5) If defendant/respondent files a motion for summary judgment, plaintiff/petitioner is advised, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), cert. denied, 119 S.Ct. 2392 (1999), and Federal Rule of Civil Procedure 56, that he or she has a right to file counter-affidavits or other responsive evidentiary materials in opposition to defendant/respondent's motion for summary judgment and that his or her failure to file such materials may result in the entry of summary judgment against him or her. If the motion for summary judgment is granted, the plaintiff/petitioner is advised that his/her case will be over. Thus, if plaintiff/petitioner fails to tile opposing counter-affidavits or other evidence, defendant/respondent's evidence might be taken as truth, and final judgment may be entered against plaintiff/petitioner without a trial. See Local Rule CR 7(b)(4).

(6) You are not to communicate directly with the District Judge or the Magistrate Judge with regard to this case. All relevant information and papers are to be directed to the Clerk, with copies sent to opposing counsel.

(7) If you are proceeding pro se (without an attorney), you must notify the Clerk and opposing parties promptly if you change your address. If you fail to do so, your case may be dismissed.

(8) All cases that have been pending in this Court for more than one year without any proceeding of record having been taken may be dismissed by the Court on its own motion for lack of prosecution.