Stakey v. Deputy Kyle O'Brien, et al., No. 1:2022cv00513 - Document 9 (D. Idaho 2023)
Court Description: INITIAL REVIEW ORDER BY SCREENING JUDGE - IT IS ORDERED:Plaintiffs request for appointment of counsel (contained in the Complaint)is DENIED. Plaintiff may proceed on his excessive force and state law claims against Defendant OBrien. All other claims against all other Defendants are DISMISSED. Defendant OBrien will be allowed to waive service of summons by executing, or having counsel execute, the Waiver of Service of Summons as provided by Fed. R. Civ. P. 4(d) and returning it to the Court wit hin 30 days. Accordingly, the Clerk of Court will forward a copy of the Complaint (Dkt. 3 ), a copy of this Order, and a Waiver of Service of Summons to Justin Oleson, Custer County Prosecuting Attorney, 521 E. Main Ave., Challis, Idaho, 83226-0630. Any amended pleadings must be submitted, along with a motion to amend, within 150 days after entry of this Order. Dispositive motions must be filed by the later of (a) 300 days after entry ofthis Order or (b) 300 days after entry of an order denying all or part of apreliminary Rule 12(b) or Rule 56 motion. Pursuant to General Order 324, this action is hereby RETURNED to the Clerk of Court for random civil case assignment to a presiding judge, on the proportionate basis previously determined by the District Judges, having given due consideration to the existing caseload.. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)
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Stakey v. Deputy Kyle O&#039;Brien, et al. Doc. 9 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO JOSEPH T. STAKEY, Case No. 1:22-cv-00513-DCN Plaintiff, INITIAL REVIEW ORDER BY SCREENING JUDGE v. DEPUTY KYLE O’BRIEN; SHERIFF STUART LUMPKIN; DEPUTY CHIEF LEVI; and CUSTER COUNTY SHERIFF’S DEPARTMENT, Defendants. The Clerk of Court conditionally filed Plaintiff Joseph T. Stakey’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it or any of the claims contained therein should be summarily dismissed under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order. 1. Pleading Standards and Screening Requirement A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under modern pleading standards, Rule 8 requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal/Twombly “facial plausibility” standard is met when a complaint contains “factual content that allows INITIAL REVIEW ORDER BY SCREENING JUDGE - 1 Dockets.Justia.com Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 2 of 16 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than ... unadorned, the-defendant-unlawfullyharmed-me accusation[s].” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted). Bare allegations that amount to a mere restatement of the elements of a cause of action, without adequate factual support, are not enough. The Prison Litigation Reform Act (“PLRA”)1 requires that the Court review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915 & 1915A. The Court must dismiss any claims that do not have adequate factual support or are frivolous or malicious. 28 U.S.C. §§ 1915(e)(2) & 1915A. The Court also must dismiss claims that fail to state a claim upon which relief may be granted or that seek monetary relief from a defendant who is immune from such relief. Id. These last two categories—together with claims that fall outside a federal court’s narrow grant of jurisdiction—encompass those claims that might, or might not, have factual support but nevertheless are barred by a well-established legal rule. 1 Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq. INITIAL REVIEW ORDER BY SCREENING JUDGE - 2 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 3 of 16 The Court liberally construes the pleadings to determine whether a case should be dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was expanded by the PLRA, giving courts power to dismiss deficient claims, sua sponte, before or after opportunity to amend). 2. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction. The events giving rise to Plaintiff’s claims occurred when Plaintiff was not yet incarcerated. Plaintiff is hearing impaired and has a speech impediment. He claims that Defendant O’Brien, a deputy with the Custer County Sheriff’s Department, used excessive force against him during the course of his arrest. Compl., Dkt. 3, at 4–9. Plaintiff asserts that Defendants Sheriff Lumpkin and Deputy Chief Levi, who are O’Brien’s supervisors, failed to ensure that their employees “avoid excessive use of force and discrimination against individuals with disabilities.” Id. at 3 (capitalization regularized). Plaintiff also alleges that the Custer County Sheriff’s Department does not provide adequate training to its deputies regarding use of force and dealing with people with disabilities. Id. at 4. 3. Discussion Plaintiff asserts (1) claims under 42 U.S.C. § 1983, the federal civil rights statute; INITIAL REVIEW ORDER BY SCREENING JUDGE - 3 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 4 of 16 (2) claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; and (3) Idaho state law claims. A. Section 1983 Claims Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Governmental officials generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 (“[E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct. Taylor, 880 F.2d at 1045. However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there exists ... a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A plaintiff can establish this causal connection by alleging that a defendant (1) set in motion a series of acts by others that violated the Constitution, or knowingly refused to terminate a series of such acts, which the supervisor “knew or reasonably should have known would cause others to inflict a constitutional injury”; (2) knowingly failed to act or acted improperly “in the training, INITIAL REVIEW ORDER BY SCREENING JUDGE - 4 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 5 of 16 supervision, or control of his subordinates”; (3) acquiesced in the constitutional deprivation; or (4) engaged in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205–09 (internal quotation marks omitted). To bring a § 1983 claim against a local governmental entity, such as the Custer County Sheriff’s Department, a plaintiff must allege that the execution of an official policy or unofficial custom inflicted the injury of which the plaintiff complains, as required by Monell v. Department of Social Services of New York, 436 U.S. 658, 694 (1978). Under Monell, the requisite elements of a § 1983 claim against such an entity are the following: (1) the plaintiff was deprived of a constitutional right; (2) the entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). An unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). A claim that a supervisor or training official failed to adequately train subordinates ordinarily requires that, “in light of the duties assigned to specific officers or employees[,] the need for more or different training [was] so obvious, and the inadequacy so likely to INITIAL REVIEW ORDER BY SCREENING JUDGE - 5 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 6 of 16 result in the violation of constitutional rights, that the [supervisor or training official] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). That is, to maintain a failure-to-train claim, a plaintiff must allege facts showing a “pattern of violations” that amounts to deliberate indifference. Connick v. Thompson, 563 U.S. 51, 72 (2011). Likewise, “a failure to supervise that is sufficiently inadequate may amount to deliberate indifference” that supports a § 1983 claim, but there generally must be a pattern of violations sufficient to render the need for further supervision obvious. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks omitted). That is, if a supervisory or training official had “knowledge of the unconstitutional conditions” through such a pattern of violations— including knowledge of the “culpable actions of his subordinates”—yet failed to act to remedy those conditions, that official can be said to have acquiesced “in the unconstitutional conduct of his subordinates” such that a causal connection between the supervisor and the constitutional violation is plausible. Starr, 652 F.3d at 1208. A plaintiff cannot simply restate these standards of law in a complaint. Instead, a plaintiff must provide specific facts supporting the elements of each claim and must allege facts showing a causal link between each defendant and Plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. Plaintiff claims that he was subjected to excessive force. When an arrestee “alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014). The Fourth Amendment requires that officers use only an amount of force that is INITIAL REVIEW ORDER BY SCREENING JUDGE - 6 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 7 of 16 “objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (internal quotation marks omitted).2 The reasonableness inquiry requires “balancing the nature and quality of the intrusion on a person’s liberty with the countervailing governmental interests at stake,” Davis v. City of Las Vegas, 478 F.3d 1048, 1053-54 (9th Cir. 2007) (internal quotation marks omitted). When analyzing excessive force claims, courts must consider several factors. First, the “quantum of force” used by the police must be assessed. Id. at 1054. Second, the governmental interests at stake must be balanced against the quantum of force used. The Court must analyze the governmental interests in light of the following factors: (1) the severity of the crime for which the plaintiff was arrested; (2) whether the plaintiff posed a threat to the safety of the officers or others; (3) whether the plaintiff was actively resisting arrest or attempting to flee; and (4) the availability of alternative methods of subduing the plaintiff. Davis v. City of Las Vegas, 478 F.3d at 1054. The Supreme Court has emphasized that courts must not rely on their own hindsight in determining whether an officer’s use of force was reasonable. Rather, the “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 2 Although the excessive force reasonableness standard is an objective test, it must not be confused with the standard for negligence claims under state law, as negligence is not actionable under § 1983. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015) (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”) (internal quotation marks omitted); Error! Main Document Only.Daniels v. Williams, 474 U.S. 327, 332 (1986). INITIAL REVIEW ORDER BY SCREENING JUDGE - 7 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 8 of 16 490 U.S. at 396–97. Plaintiff’s Complaint, liberally construed, appears to state colorable excessive force claims against Defendant O’Brien. However, the Complaint does not state a plausible excessive force claim against the other Defendants. Sheriff Lumpkin and Deputy Levi were not personally involved in Plaintiff’s arrest. Instead, these Defendants are being sued as supervisors of Defendant O’Brien. The Complaint contains only bare, conclusory statements that these Defendants failed to ensure that their employees used reasonable force and that there have been other incidents of excessive force by deputies. Such statements are not entitled to the presumption of truth. See Iqbal, 556 U.S. at 681 (“It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”). Plaintiff has not alleged a “pattern of violations” sufficient to state a plausible claim against Lumpkin or Levi for failure to train or failure to supervise. See Connick, 563 U.S. at 72; Dougherty, 654 F.3d at 900. Moreover, Plaintiff has not plausibly alleged that the Custer County Sheriff’s Department has a policy, custom, or practice of excessive force as required by Monell. Indeed, Plaintiff states that O’Brien was subjected to an investigation regarding his use of force against Plaintiff, see Compl. at 9, which suggests that he was not acting pursuant to a policy, custom, or practice of the department. For these reasons, Plaintiff may proceed on his § 1983 claims of excessive force against Defendant O’Brien only. INITIAL REVIEW ORDER BY SCREENING JUDGE - 8 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 9 of 16 B. ADA and RA Claims The Americans with Disabilities Act (“ADA”) generally prohibits discrimination on the basis of an individual’s disability. The ADA and the Rehabilitation Act are congruent statutes in purpose and application. See Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997). The evidence required for bringing a Rehabilitation Act claim is the same as that for an ADA claim, with the additional requirement that the disability discrimination be committed by an entity receiving federal financial assistance. See 29 U.S.C. § 794(a). Therefore, the standards of an ADA claim also apply to a Rehabilitation Act claim. In order to proceed with an ADA claim, a plaintiff must plausibly allege (1) that he has a disability; (2) that he is otherwise qualified to participate in or receive a public entity’s services, programs, or activities; (3) that he was denied the benefits of those services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) that such exclusion, denial of benefits, or discrimination was by reason of his disability. See Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). Plaintiff has not alleged any facts that would support a claim under the ADA or Rehabilitation Act. Plaintiff sufficiently asserts that he is disabled, but he points to no action on the part of any Defendant that constitutes discrimination on account of that disability. He does not allege that Defendants acted with a discriminatory motive. Rather, Plaintiff’s claims are based on the fact that, before O’Brien learned about Plaintiff’s disability, his speech impediment may have made O’Brien believe Plaintiff was intoxicated, and this mistaken belief is what precipitated the arrest. Therefore, Plaintiff’s INITIAL REVIEW ORDER BY SCREENING JUDGE - 9 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 10 of 16 ADA and Rehabilitation Act claims will be dismissed. C. State Law Claims Plaintiff also asserts claims under Idaho state law. See Compl. at 12. A district court may exercise supplemental jurisdiction over state claims when they are “so related” to the federal claims “that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367. In other words, the supplemental jurisdiction power extends to all state and federal claims which one would ordinarily expect to be tried in one judicial proceeding. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). The Court will exercise supplemental jurisdiction over Plaintiff’s state law claims. However, Plaintiff should be aware that these claims may be subject to dismissal at a later date if Plaintiff has not complied with the Idaho Tort Claims Act (“ITCA”), Idaho Code §§ 6-901 through 6-929. The ITCA provides, All claims against a political . . . [subdivision] arising under the provisions of this act and all claims against an employee of a political subdivision for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later. Id. § 6-906. A “claim” under the ITCA is “any written demand to recover money damages from a governmental entity or its employee which any person is legally entitled to recover under this act as compensation for the negligent or otherwise wrongful act or omission of INITIAL REVIEW ORDER BY SCREENING JUDGE - 10 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 11 of 16 a governmental entity or its employee.” Id. § 6-902(7). 4. Request for Appointment of Counsel Plaintiff also seeks appointment of counsel. See Compl. at 15. Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate the claims pro se considering the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id. Plaintiff’s Complaint, liberally construed, appears to state a claim upon which relief could be granted if the allegations are proven at trial. However, without more than the bare allegations of the Complaint, the Court does not have a sufficient basis upon which to assess the merits at this point in the proceeding. The Court also finds that Plaintiff has articulated the claims sufficiently, and that the legal issues in this matter are not complex. Based on the foregoing, the Court will deny Plaintiff’s request for appointment of counsel. If it seems appropriate later in this litigation, the Court will reconsider appointing counsel. A federal court has no authority to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(e)(1) or under the Court’s inherent authority. Mallard INITIAL REVIEW ORDER BY SCREENING JUDGE - 11 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 12 of 16 v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (holding that the appointment of counsel provision in § 1915, formerly found in subsection (d), does not “authorize[] a federal court to require an unwilling attorney to represent an indigent litigant in a civil case”); Veenstra v. Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D. Idaho May 4, 2017) (“[The Court] does not have inherent authority to compel an attorney to represent Plaintiffs pro bono.”). Rather, when a Court “appoints” an attorney, it can do so only if the attorney voluntarily accepts the assignment. Id. The Court has no funds to pay for attorneys’ fees in civil matters such as this one, and it is often difficult to find attorneys willing to work on a case without payment—especially in prisoner cases, where contact with the client is particularly difficult. For these reasons, Plaintiff should attempt to procure counsel on a contingency or other basis, if possible. 5. Conclusion Plaintiff may proceed as outlined above. This Order does not guarantee that any of Plaintiff’s claims will be successful. Rather, it merely finds that some are plausible— meaning that they will not be summarily dismissed at this time but will proceed to the next stage of litigation. This Order is not intended to be a final or a comprehensive analysis of Plaintiff’s claims. Defendants may still file a motion for dismissal or motion for summary judgment if the facts and law support such a motion.3 Because (1) prisoner filings must be afforded a 3 The standards for a motion to dismiss for failure to state a claim under Rule 12(b)(6) are the same standards that the Court has used to screen the Complaint under §§ 1915 and 1915A. Therefore, motions to dismiss for failure to state a claim are disfavored in cases subject to §§ 1915 and 1915A and may be filed only in extraordinary circumstances. INITIAL REVIEW ORDER BY SCREENING JUDGE - 12 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 13 of 16 liberal construction, (2) governmental officials often possess the evidence prisoners need to support their claims, and (3) many defenses are supported by governmental records, an early motion for summary judgment—rather than a motion to dismiss—is often a more appropriate vehicle for asserting procedural defenses such as non-exhaustion or qualified immunity. ORDER IT IS ORDERED: 1. Plaintiff’s request for appointment of counsel (contained in the Complaint) is DENIED. 2. Plaintiff may proceed on his excessive force and state law claims against Defendant O’Brien. All other claims against all other Defendants are DISMISSED, and Defendants Lumpkin, Levi, and the Custer County Sheriff’s Department are TERMINATED as parties to this action. If Plaintiff later discovers facts sufficient to support a claim that has been dismissed, Plaintiff may move to amend the complaint to assert such claims.4 3. Defendant O’Brien will be allowed to waive service of summons by 4 Any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon or incorporate by reference prior pleadings. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint). INITIAL REVIEW ORDER BY SCREENING JUDGE - 13 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 14 of 16 executing, or having counsel execute, the Waiver of Service of Summons as provided by Fed. R. Civ. P. 4(d) and returning it to the Court within 30 days. If Defendants choose to return the Waiver of Service of Summons, the answer or pre-answer motion will be due in accordance with Rule 12(a)(1)(A)(ii). Accordingly, the Clerk of Court will forward a copy of the Complaint (Dkt. 3), a copy of this Order, and a Waiver of Service of Summons to Justin Oleson, Custer County Prosecuting Attorney, 521 E. Main Ave., Challis, Idaho, 83226-0630. 4. Should any entity determine that the individuals for whom counsel for the entity was served with a waiver are not, in fact, its employees or former employees, or that its attorney will not be appearing for the entity or for particular former employees, it should file a notice within the CM/ECF system, with a copy mailed to Plaintiff, identifying the individuals for whom service will not be waived. 5. If Plaintiff receives a notice indicating that service will not be waived for an entity or for certain individuals, Plaintiff will have an additional 90 days from the date of such notice to file a notice of physical service addresses of the Defendant, or claims against the Defendant may be dismissed without prejudice without further notice. 6. Unless otherwise ordered, the parties must follow the deadlines and guidelines in the Standard Disclosure and Discovery Order for Pro Se Prisoner Civil Rights Cases, issued with this Order. INITIAL REVIEW ORDER BY SCREENING JUDGE - 14 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 15 of 16 7. Any amended pleadings must be submitted, along with a motion to amend, within 150 days after entry of this Order. 8. Dispositive motions must be filed by the later of (a) 300 days after entry of this Order or (b) 300 days after entry of an order denying all or part of a preliminary Rule 12(b) or Rule 56 motion. 9. Each party must ensure that all documents filed with the Court are simultaneously served upon the opposing party (through counsel if the party has counsel) by first-class mail or via the CM/ECF system, pursuant to Federal Rule of Civil Procedure 5. Each party must sign and attach a proper mailing certificate to each document filed with the court, showing the manner of service, date of service, address of service, and name of person upon whom service was made. 10. The Court will not consider ex parte requests unless a motion may be heard ex parte according to the rules and the motion is clearly identified as requesting an ex parte order, pursuant to Local Rule of Civil Practice before the United States District Court for the District of Idaho 7.2. (“Ex parte” means that a party has provided a document to the court, but that the party did not provide a copy of the document to the other party to the litigation.) 11. All Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a pleading or motion, with an appropriate caption designating the name of the pleading or motion, served on all parties to the litigation, pursuant to Federal Rule of Civil INITIAL REVIEW ORDER BY SCREENING JUDGE - 15 Case 1:22-cv-00513-DCN Document 9 Filed 05/03/23 Page 16 of 16 Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United States District Court for the District of Idaho 5.1 and 7.1. The Court will not consider requests made in the form of letters. 12. No party may have more than three pending motions before the Court at one time, and no party may file a motion on a particular subject matter if that party has another motion on the same subject matter currently pending before the Court. Motions submitted in violation of this Order may be stricken, summarily denied, or returned to the moving party unfiled. 13. Plaintiff must notify the Court immediately if Plaintiff’s address changes. Failure to do so may be cause for dismissal of this case without further notice. 14. Pursuant to General Order 324, this action is hereby RETURNED to the Clerk of Court for random civil case assignment to a presiding judge, on the proportionate basis previously determined by the District Judges, having given due consideration to the existing caseload. DATED: May 3, 2023 _________________________ David C. Nye Chief U.S. District Court Judge INITIAL REVIEW ORDER BY SCREENING JUDGE - 16
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