Free Bivens packet - West Virginia


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Date: January 29, 2009
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State: West Virginia
Category: Court Forms - Federal
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF WEST VIRGINIA
INSTRUCTIONS FOR FILING A CIVIL ACTION FOR VIOLATION OF CIVIL RIGHTS (BIVENS ACTION) Pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), a plaintiff may bring a civil rights suit against federal officials in their individual capacity for damages caused by constitutional torts under color of their authority. Do NOT use this form to apply for a writ of habeas corpus or to challenge the sentence you received in federal court. Separate forms are available for these actions. The Clerk of Court can send you a copy upon request, or one should be available in the law library of your institution. THE RIGHT COURT AND THE RIGHT DEFENDANTS You may file your complaint in the United States District Court for the Northern District of West Virginia only if one or more of the defendants is located in the Northern District, or if the events of which you complain occurred in the Northern District. File complaints against state personnel under 42 U.S.C. § 1983. File complaints against federal personnel with this Bivens Action form. Do NOT use 42 U.S.C. § 1983 to apply for a writ of habeas corpus or to challenge the sentence you received in state or federal court. EXHAUSTION You may not bring an action challenging prison conditions until you have exhausted available administrative remedies, including any grievance system. See 42 U.S.C. Section 1997e(a). SCREENING/DISMISSAL The Court is required to screen your complaint and to dismiss your case at any time if it determines the following: 1. 2. 3. You failed to exhaust all administrative remedies; or Your case is frivolous, or malicious, or fails to state a claim on which relief may be granted, or seeks money from a defendant who is immune from such relief; or You are requesting to file your case without paying the filing fee and your allegation of poverty is untrue. THREE-DISMISSAL RULE If you have, while incarcerated, brought a civil action or appeal in federal court three or more times in the past that was dismissed because it was (1) frivolous, or (2) malicious, or (3) failed to state a claim on which relief may be granted, you cannot bring a new civil action or appeal a judgment in a civil action in forma pauperis. The only exception to this is if you are in "imminent danger of serious physical injury." See 28 U.S. C. Section 1915(g). COMPENSATORY DAMAGES If your case is allowed to proceed and you are awarded compensatory damages against a federal officer, before payment of any compensatory damages, the government will attempt to notify victims of the crime for which you were convicted, because you must first pay all pending restitution orders before any part of the award goes to you.

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BASIC GUIDELINES When filing forms and documents with the Court, follow these guidelines: -complete all forms as thoroughly as possible -use letter size paper only (81/2 x 11) -sign all documents -send the original and one copy for each named defendant -do not use staples -do not use pencil: use black or blue pens only -do not bind documents -write only on the fronts of documents, do not write on the backs of documents

FORMS
To file a civil rights action, you must use the forms provided by the Court, and submit either (a) Complaint and filing fee of $350.00 to be paid by certified check or money order, OR (b) Complaint and In Forma Pauperis forms, which include: Application for Leave to Proceed Without Prepayment of Fees form, Consent to Collection of Fees form, and the Prisoner Trust Account Report form. Directions for filing a complaint are listed below and all necessary forms are included. Please read all of the following instructions carefully before completing ANY of the attached forms. THE COMPLAINT (Attachment A) 1. Instructions for Completing the Complaint Form: a. You should submit one original copy and two copies for the Court, plus one copy of the complaint for each defendant you name. For example, if you are naming two defendants, you would submit to the Clerk of Court the following: 1. 2. The original complaint for filing; One copy for each named defendant.

Keep one additional copy of the complaint for your records. If you do not retain a copy of your complaint and later request a copy from the Court, you will be required to pay a copying fee of $0.50 per page. b. All complaint forms and copies must be identical. All information must be identical. Do not submit forms from other districts. Do not write on the back of the complaint forms. If you need more space, use additional sheets of paper. Your complaint and all other pleadings/documents must be legibly handwritten or typed. You may submit attachments, exhibits, or motions with the complaint. Please provide sufficient copies of the attachments for each required copy of the complaint. These copies may be handwritten or typed. The Clerk does not provide copies unless a fee of $0.50 per page is paid in advance. TITLE OF THE ACTION: In the complaint, "the title of the action: (your name), Plaintiff v. (names of people you are suing), Defendant)" should include the names of all parties. See Rule 10(a), Federal Rules of Civil Procedure. DEFENDANTS: You should provide the Clerk of Court with the complete name and address of each defendant. If the first name is unknown, provide an initial. Otherwise, the Clerk cannot prepare a summons for issuance of service of process by the Marshal. See Rule 4 of the Federal Rules of Civil Procedure.

c.

d.

e.

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f.

STATEMENT OF CLAIM: You are required to give facts regarding your grievance. THIS COMPLAINT SHOULD NOT CONTAIN LEGAL ARGUMENTS OR CITATIONS. RELIEF REQUESTED: State what you want. Do not make legal arguments. VERIFICATION: You should make sure that all answers are true and correct. You must verify or certify the correctness of the contents of the complaint. You verify or certify your answers by signing the complaint on p. 10. Note: under RULE 11, Federal Rules of Civil Procedure: only the signature of a pro se party on pleadings will be acceptable to the Court. INSTRUCTIONS FOR A COMPLAINT WITH MORE THAN ONE PLAINTIFF: If you and any other plaintiff(s) have the same claims, events, and defendants to be stated in your complaint, each plaintiff should file a separate complaint. Each plaintiff is responsible for the $350.00 filing fee unless each plaintiff is granted the right to proceed without prepayment of fees by the Court.

g. h.

i.

j.

FILING FEE (Attachments B, C, and D) When you bring a civil action in federal court, you must pay the full amount of the filing fee ($350.00) or apply to proceed without payment. If you have the funds to pay the filing fee, send a money order payable to Clerk, U.S. District Court in the amount of $350.00. If you cannot pay the full fee at the time of filing, you must apply to proceed without prepayment of fees. To file an application to proceed to proceed without prepayment of fees, you must submit the following forms: Application for Leave to Proceed Without Prepayment of Fees form (Attachment B), Consent to Collection of Fees form (Attachment C), and the Prisoner Trust Account Report (Attachment D) with ledger sheets from your prisoner trust account which reflect your account's activity for the past six months. Failure to submit all of these forms may result in dismissal of your complaint. In Forma Pauperis Procedures After receiving your complaint, the Court will assess and collect an initial partial filing fee of the greater of the following: 1. 2. 20% of the average monthly deposits to your prisoner account for the past six months; or 20% of the average monthly balance in your prisoner account for the past six months.

After paying this initial partial fee, you must pay 20% of the preceding month's income received in your prisoner's account. The agency having custody of you will send these payments to the Clerk of Court when your prisoner account has more than $10.00 in it, until the full filing fee is paid. See 28 U.S.C. Section 1915(b). The full fee will be collected even if the Court dismisses the case because it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks money damages against a defendant who is immune from such relief. See 28 U.S.C. Section 1915(e)(2). See below additional important instructions regarding your in forma pauperis documents: 1. 2. You must verify or certify the correctness of the contents of the above-referenced documents. You should make sure that all answers are true and correct. Be sure to include two identical copies of each of the forms listed above with the original ones when you submit them and your complaint to the Clerk. These copies may be handwritten or typed. The Clerk does not provide copies unless a fee of $0.50 per page is paid.

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CONSENT TO TRIAL BY MAGISTRATE JUDGE In accordance with the provision of 28 U.S.C. Section 636(c), and Fed. R. Civ. P. 73, you are notified that a United States Magistrate Judge of this district is available to conduct any and all proceedings in this case including a jury or nonjury trial and to enter the final order in this case. However, exercise of this jurisdiction by a magistrate judge is permitted only if all parties voluntarily consent. If you consent to having this matter tried by a magistrate judge, you need to complete the form for NOTICE, CONSENT, AND ORDER OF REFERENCE (Attachment E). After completing the complaint and all applicable forms, proofread them to ensure compliance with all instructions. Return the completed forms and the correct number of copies to the appropriate point of holding court: Clerk, U.S. District Court PO Box 2857 Clarksburg, WV 26302 Clerk, U.S. District Court 217 W. King St., Room 102 Martinsburg, WV 25401 Clerk, U.S. District Court PO Box 471 Wheeling, WV 26003 Clerk, U.S. District Court PO Box 1518 Elkins, WV 26241

FILING DOCUMENTS AFTER SERVICE HAS BEEN ISSUED Documents filed with the Clerk of Court after the service has been issued on the defendants must be filed with the Court in writing in the form of a pleading, e. g.: motion, notice, memorandum, etcetera. You must serve the defendant(s) or defense counsel with a copy of every pleading, letter, or other document submitted for consideration by the Court. The original of all documents filed with the Clerk should have a "Certificate of Service" (Attachment F). We may return any document submitted to the Clerk of Court for filing that does not bear a proper Certificate of Service. You must sign all instruments (pleadings, letters, motions, or other documents) pertaining to your case and must state the civil action number (case number). All documents and correspondence submitted to the Clerk of Court should be on letter-sized paper (8 ½ x 11 inches). Please do not use legal-size ( 8 ½ x 14 inches) paper. IMPORTANT ADDITIONAL INFORMATION 1. 2. 3. IF YOU DO NOT KEEP THE COURT ADVISED OF YOUR CURRENT ADDRESS, YOUR CASE MAY BE DISMISSED FOR WANT OF PROSECUTION. It is improper to communicate directly with Judges or Magistrate Judges concerning matters that may become a subject in their Court. It is improper for the Clerk, Judges, or Magistrate Judges to give legal advice to litigants.

Thank you in advance for your cooperation regarding these instructions.

AT THE DIRECTION OF THE COURT Wally Edgell, Ph.D., Clerk UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

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Attachment A
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Enter the full name of the plaintiff in this action

COMPLAINT Civil Action No.:______________ (To be assigned by the Clerk of Court)

v.

Enter above the full name of defendant(s) in this action (If you have additional defendants, list them on a separate sheets of paper) I. PARTIES In Item A below, place your name, inmate number, and address in the space provided. A. Name of Plaintiff:___________________________________________ Inmate No.: _____________ Address:___________________________________________________________________________ In Item B below, place the full name of the defendant, his or her official position, and place of employment in the space provided. Use Item C for additional defendants, if any. B. Name of Defendant:________________________________________ Position:_____________________ Place of Employment: ________________________________________________________________

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C.

Additional Defendants (provide the same information for each defendant as listed in Item B above):

_____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ II. PLACE OF PRESENT CONFINEMENT Name of Prison/Institution:_________________________________________________________________ A. Is this where the events concerning your complaint took place? Yes_____ No_____

If you answered "no", where did the events occur?________________________________________ B. C. Is there a prisoner grievance procedure in this institution? Did you present the facts relating to your complaint in the prisoner grievance procedure? Yes_____ No_____

Yes_____

No_____

D. E.

If your answer is NO, explain why not:__________________________________________________ If your answer is YES, what was the result at level one, level two, and level three (attach grievances and responses):

_____________________________________________________________________________________ _____________________________________________________________________________________ III. PREVIOUS LAWSUITS A. Have you begun other lawsuits in state or federal court dealing with the same facts involved in this action or otherwise related to your imprisonment? Yes______ No______ If your answer to A is Yes, describe the lawsuit in the space below. If there is more than one lawsuit, describe the additional lawsuits on another piece of paper using the same outline. 1. Parties to this previous lawsuit: Plaintiff(s):______________________________________________________________________ Defendant(s):____________________________________________________________________ 2. Court: _________________________________________________________________________ (If federal court, name the district; if state court, name the county) Docket Number:_________________________________________________________________ Name of Judge(s) to whom case was assigned:_________________________________________ Disposition:_____________________________________________________________________ (For example, was the case dismissed? Appealed? Pending?) Approximate date of filing lawsuit:__________________________________________________ 6 Northern District of West Virginia

B.

3. 4. 5.

6.

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7.

Approximate date of disposition:____________________________________________________

IV. STATEMENT OF CLAIM State here, as briefly as possible, the facts of your case. Describe what each defendant did to violate your constitutional rights. Include also the names of other persons involved, dates, and places. Do not give any legal arguments or cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Use as much space as you need. Attach extra sheets of paper if necessary.

IV. STATEMENT OF CLAIM - continued.

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V.

RELIEF 8 Northern District of West Virginia

United States District Court

State briefly and exactly what you want the Court to do for you. Make no legal arguments. Cite no cases or statutes.

Signed this _______ day of ____________________________________, 20 _______.

________________________________ Signature of Plaintiff

I declare under penalty of perjury that the foregoing is true and correct.
Signed this _______ day of ____________________________________, 20 _______.

________________________________ Signature of Plaintiff

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Attachment B

UNITED STATES DISTRICT COURT Northern District of West Virginia
_________________________ Plaintiff, V. CASE NUMBER: _________________________ Defendant. APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT

YOU MUST COMPLETE THIS FORM FOR YOU, YOUR SPOUSE AND ALL PERSONS OVER 18 LIVING IN THE RESIDENCE WHERE YOU LIVE
Affidavit in Support of Motion I swear or affirm under penalty of perjury that, because of my poverty, I cannot prepay the docket fees of my action or post a bond for them. I believe I am entitled to redress. I swear or affirm under penalty of perjury under United States laws that my answers on this form are true and correct (28 U.S.C. § 1746; 18 U.S.C. § 1621.) Signed: ____________________________ Instructions Complete all questions in this application and then sign it. Do not leave any blanks: if the answer to a question is "0," "none," or "not applicable (N/A)," write in that response. If you need more space to answer a question or to explain your answer, attach a separate sheet of paper identified with your name, your case's docket number, and the question number.

Date: _____________________

1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amount, that is amounts before any deductions for taxes or otherwise. Income Source Average Monthly Amount during the past 12 months You Employment Self-Employment Income from real property (such as rental income) Interest and dividends Gifts $ $ Spouse $ $ Other Adult* $ $ Amount expected next month

You $ $

Spouse $ $

Other Adult* $ $

$ $ $

$ $ $

$ $ $

$ $ $

$ $ $

$ $ $

* Other adult living where you reside

-10-

Alimony Child Support

$ $

$ $

$ $

$ $

$ $

$ $

Retirement (social security, pensions, annuities, insurance, etc.) $ Disability (social security, insurance payments, etc.) Unemployment payments Public-Assistance (such as welfare) Other (specify):

$

$

$

$

$

$ $

$ $

$ $

$ $

$ $

$ $

$ $

$ $ $

$ $ $

$ $ $

$ $ $

$ $ $

Total monthly income: $

2. List your employment history with most recent employer first (Gross monthly pay is before taxes or other deductions). Employer Address Dates of Employment Gross Monthly Pay

_______________ _______________ _______________

_______________ _______________ _______________

_______________ _______________ _______________

_______________ _______________ _______________

3. List your spouse's employment history with most recent employer first (Gross monthly pay is before taxes or other deductions).

_______________ _______________ _______________

_______________ _______________ _______________

_______________ _______________ _______________

_______________ _______________ _______________

4. How much cash do you and your spouses have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution

Financial Institution

Type of Account

Amount you have

Amount your spouse has $ $ $

Amount other adult has* $ $ $

$ $ $

If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account.

* Other adult living where you reside

-11-

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Home (Value) Other real estate (Value) Motor vehicle #1 Make & year: (Value)

Model:

Registration #:

Motor vehicle #2 Make & year: Model: Registration #:

(Value)

Other assets

(Value)

Other assets

(Value)

6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse money Amount owed to you Amount owed to your spouse money

7. State the persons who rely on you or your spouse for support. Initials Relationship

Age

8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semi-annually or annually to show the monthly rate. You Rent or home mortgage payment (include lot rented for mobile home) Are real estate taxed included? ~ Yes Is property insurance included? ~ Yes $ ~ No ~ No $ Your Spouse Other adult* $

Utilities (electricity, heating fuel, water, sewer, and telephone) $ Home maintenance (repairs and upkeep) Food Clothing Laundry and dry cleaning * Other adult living where you reside $ $ $ $

$ $ $ $ $

$ $ $ $ $

-12-

Medical and dental expenses Transportation (not including motor vehicle payment) Recreation, entertainment, newspapers, magazines, etc. Insurance (not deducted from wages or included in mortgage payments) Homeowner's or renter's Life Health Motor Vehicle Other:_____________________ Taxes (not deducted from wages or included in mortgage payments) (specify): Installment payments Motor Vehicle Credit Card (name): Department Store (name): ___________________________ Other:___________________________

$

$

$

$

$

$

$

$

$

$ $ $ $ $ $

$ $ $ $ $ $

$ $ $ $ $ $

$

$

$

$ $_______________ $ $ $

$ $_____________ $ $ $

$ $ $ $ $

Alimony, maintenance, and support paid to other Regular expenses for operation of business, profession, or farm (attach detailed statement Other (specify):___________________ Total monthly expenses:

$

$

$

$ $ $

$ $ $

$ $ $

9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? ~ Yes ~ No If yes, describe on an attached sheet

-13-

10. Have you paid-or will you be paying- an attorney any money for services in connection with this case including the completion of this form? ~ Yes ~ No If yes, how much? $_________________________ If yes, state the attorney's name, address, and telephone number:

11. Have you paid-or will you be paying-anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form? ~ Yes ~ No If yes, how much? $___________________________________ If yes, state the person's name, address, and telephone number:

12. Provide any other information that will help explain why you cannot pay the docket fees for your appeal.

-14-

Attachment C
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA _____________________________________ _____________________________________ _____________________________________ _____________________________________ (Full Name and Prison Number of Plaintiff) V. _____________________________________ _____________________________________ _____________________________________ (Names and Official Titles of Each Defendant) CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT I, _____________________________, #_____________, hereby consent for the appropriate prison officials to withhold from my prison account and pay to the Clerk of Court for the United States District Court, at Elkins, West Virginia, an initial payment of 20 percent of the greater of the following choices: (a) OR (b) The average monthly balance in my account for the six month period immediately preceding the filing of the complaint. The average monthly deposits to my account for the six month period immediately preceding the filing of the complaint. Civil Action No.___________________ (To be Assigned by Clerk of Court)

I further consent for the appropriate prison officials to collect from my account, on a continuing basis each month, an amount equal to 20 percent of each month's income. Each time the amount in the account reaches $10.00, the Trust Officer shall forward the interim payment to the Clerk's Office in Elkins, West Virginia, until such time as the $350.00 filing fee is paid in full. By executing this document, I also authorize collection on a continuing basis of any additional fees, costs, or sanctions imposed by the United States District Court for the Northern District of West Virginia. _____________________________________ Date ____________________________________ Signature of Plaintiff

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Attachment D
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA OFFICE OF THE CLERK P.O. Box 1518 ELKINS, WV 26241-1518 PRISONER TRUST ACCOUNT REPORT Name:___________________________________________ Inmate #:________________

TO: FROM: RE:

Trust Officer Wally Edgell, Ph.D., Clerk, U. S. District Court, Northern District of West Virginia Civil Action No.___________________

Under the Prison Litigation Reform Act, a prisoner initiating a civil action must obtain from the Trust Officer of each institution in which the prisoner was confined during the preceding six months, a certified copy of the prisoner's trust account statement for the six months prior to the filing of his or her complaint. Please compete this form, attach the supporting ledger sheets, and return these documents to the prisoner for mailing to the Clerk of Court. The ledger sheets MUST be attached for the Court to process this form. Date complaint to be filed:_______________________ Account Balance at time of filing complaint:________________________ AVERAGE MONTHLY DEPOSITS during the six months prior to the filing of the civil action: _____________________ AVERAGE MONTHLY BALANCE during the six months prior to the filing of the civil action: _____________________ I certify that the above information accurately states the deposits and balances in the applicant's trust account for the period shown and that the attached ledger sheets are true copies of the account records maintained in the ordinary course of business.

______________ Date

_______________________________ Authorized Signature

__________________ Title

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Attachment E
AO 85 (Rev. 8/98) Notice, Consent, and Order of Reference-Exercise of Jurisdiction by a United States Magistrate Judge UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF WEST VIRGINIA NOTICE, CONSENT, AND ORDER OF REFERENCE ­ EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

Plaintiff, V. Case Number: ________________________

Defendant. NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION Pursuant to 28 U.S.C. §636(c) and Fed. R. Civ. P. 73, you are notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or non-jury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the Court's jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned. Any appeal from a judgment entered by a magistrate judge shall be taken directly to the United States Court of Appeals for the Fourth Circuit in the same manner as an appeal from any other judgment of this district court. CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with provisions of 28 U.S.C. §636(c), and Fed. R. Civ. P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings. Party Represented ______________________________ ______________________________ ______________________________ ______________________________ Signatures _____________________________ _____________________________ _____________________________ _____________________________ Date _________________ _________________ _________________ _________________

ORDER OF REFERENCE IT IS ORDERED that this case be referred to ________________________________________________United States Magistrate Judge, to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. §636(c), and Fed. R. Civ. P. 73. United States District Court 17 Northern District of West Virginia

Attachment F
_______________ Date _____________________________________________________________________ United States District Judge

NOTE: RETURN THIS FORM TO THE CLERK OF COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

v. Civil Action No.:_________________

Certificate of Service I, (your name here), appearing pro se, hereby certify that I have served the foregoing (title of document being sent) upon the defendant(s) by depositing true copies of the same in the United States mail, postage prepaid, upon the following counsel of record for the defendant(s) on (insert date here):

(List name and address of counsel for defendant(s))

____________________________ (sign your name)

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