Free Order (Service Packet) - District Court of Arizona - Arizona

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TCK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Timothy Lee Ward, Plaintiff, vs. Sgt. Karr, et al.,

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Defendants.
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No. CV 03-2159-PHX-ROS (JRI) ORDER

This case is before the Court on remand from the Ninth Court of Appeals. In light of the Ninth Circuit's decision dated November 1, 2006, the Court will order a response to Counts I and II of the Amended Complaint from Defendants Karr and Stewart. I. Background Plaintiff Timothy Lee Ward filed a pro se Amended Complaint pursuant to 42 U.S.C. §1983 on December 23, 2003 (Doc. #8). By order of the Court filed on April 15, 2004 (Doc. #10), the Court directed Defendant Bennett to answer the Amended Complaint. The remaining Defendants were dismissed by the Court in that order. On March 24, 2005, Defendant Bennett filed a Motion For Summary Judgment (Doc. #39). On November 15, 2005, the Court granted Defendant's motion for summary judgment (Doc. #45). Plaintiff appealed to the Ninth Circuit from the District Court's granting of Defendant's Motion For

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Summary Judgment in favor of Defendant Bennett as well as its earlier order dismissing claims under the screening provisions of the Prison Litigation Reform Act (Doc. #46). On November 28, 2006, the Court received a mandate from the Ninth Circuit, filed and entered on November 1, 2006 (Doc. #57), wherein the Ninth Circuit affirmed in part, vacated in part and remanded this case to the District Court. The Ninth Circuit affirmed the District Court's grant of Defendant's Motion for Summary judgment on the ground that the evidence failed to establish a genuine issue of material fact as to whether the alleged acts of the named Defendant caused an actual injury. Regarding the Court's screening order dated April 15, 2004 (Doc. #10), the Ninth Circuit found that the District Court properly dismissed Plaintiff's claim that his property was improperly removed from his cell on the ground that Plaintiff had an adequate post-deprivation remedy available to him under Arizona law. The Court determined that it was unclear from the record whether Plaintiff's alleged confinement in administrative segregation constituted an "atypical and significant hardship" that triggered due process protections. Therefore, the Court remanded this case to the District Court for further consideration. The Ninth Circuit advised that on remand, the District Court should also consider whether Plaintiff's first amended complaint alleges facts sufficient to state a claim for retaliation as discussed in the intervening case of Austin v. Terhune, 367 F. 3d 1167, 1170-71 (9th Cir. 2004). Accordingly, IT IS HEREBY ORDERED: That, no later than the time provisions provided by Rule12(a) of the Federal Rules of Civil Procedure, Defendants Karr and Stewart will be directed to answer, or otherwise respond by appropriate motion, to Plaintiff's Due Process and Retaliation claims, as set forth in Counts I and II of the Amended Complaint (Doc. # 8). IT IS FURTHER ORDERED: (1) The Clerk of Court must send Plaintiff a service packet including the Amended Complaint (Doc. #8), this Order, and both summons and request for waiver forms for Defendants Karr and Stewart;

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(2) Plaintiff must complete and return the service packet to the Clerk of Court within 20 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (3) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Amended Complaint on a Defendant within 120 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). (4) The United States Marshal must retain the Summons, a copy of the Amended Complaint, and a copy of this Order for future use. (5) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The Marshal must immediately file requests for waivers that were returned as undeliverable and waivers of service of the summons. If a waiver of service of summons is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies of the Summons, Amended Complaint, and this

Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against

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the personally served Defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (6) A Defendant who agrees to waive service of the Summons and Amended

Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff. (7) Defendants must answer the Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (8) Any answer or response must state the specific Defendant by name on whose

behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed. (9) This matter is referred to Magistrate Judge Jay R. Irwin pursuant to Rules 72.1

and 72.2 of the Local Rules of Civil Procedure for further proceedings. DATED this 2nd day of February, 2007.

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