Mata v. Douglas et al, No. 2:2015cv00575 - Document 15 (D. Utah 2016)

Court Description: MEMORANDUM DECISION and ORDER DISMISSING DEFENDANT & ORDERING SERVICE ON REMAINING DEFENDANTS:granting 12 Motion for Service of Process (Prisoner). The United States Marshals Service shall serve a summons, a copy of Plaintiffs com plaint, and a copy of this Order upon Defendants Alfred Bigelow, Joseph Coombs, Aaron Douglas, FNU Hutchingson, FNU Nielsen, Sidney G. Roberts, Dane Thurston; It is hereby ordered that: Defendant Clearance Committee is DISMISSED. See order for details. Signed by Judge David Nuffer on 09/01/2016. (kpf)

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Mata v. Douglas et al Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH MEMORANDUM DECISION & ORDER DISMISSING DEFENDANT & ORDERING SERVICE ON REMAINING DEFENDANTS EDGARDO MATA, Plaintiff, v. AARON DOUGLAS et al., Case No. 2:15-CV-575-DN Defendants. District Judge David Nuffer Plaintiff/inmate, Edgardo Mata, filed a pro se civil rights case, see 42 U.S.C.S. § 1983 (2016), proceeding in forma pauperis, see 28 id. 1915. The Court now screens his Complaint, under the standard that any claims in a complaint filed in forma pauperis must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be granted. See id. §§ 1915-1915A. DISMISSAL ORDER 1. Claims Plaintiff names as defendants: Aaron Douglas, Alfred Bigelow, Joseph Coombs, Sgt. Hutchingson, Sidney G. Roberts, Clearance Committee, Officer Nielsen and Dane Thurston. His claims regard inadequate medical treatment. 2. Grounds for Sua Sponte Dismissal In evaluating the propriety of dismissing claims for failure to state a claim upon which relief may be granted, this Court takes all well-pleaded factual assertions as true and regards them in a light most advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 Dockets.Justia.com F.3d 1174, 1177 (10th Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the plaintiff has not posed a "plausible" right to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civil-rights complaint contains "bare assertions," involving "nothing more than a 'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting Twombly, 550 U.S. at 554-55). In other words, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original). This Court must construe pro se "'pleadings liberally,' applying a less stringent standard than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). In the Tenth Circuit, this means that if this Court can reasonably read the pleadings "to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, it is not "the proper function of the district court to assume the role 2 of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)). 3. Improper Defendant Clearance Committee is an improper defendant. In general, a plaintiff must bring federal civil-rights claims against only named individuals, not sub-governmental entities. Clearance Committee is thus dismissed. ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS The Court concludes that official service of process is warranted on the remaining defendants. The United States Marshals Service (USMS) is directed to serve a properly issued summons and a copy of Plaintiff's Complaint, (see Docket no. 6), along with this Order, upon the following UDOC defendants: AARON DOUGLAS, R.N. ALFRED BIGELOW, FORMER WARDEN JOSEPH COOMBS SGT HUTCHINGSON SIDNEY ROBERTS OFFICER NIELSEN DANE THURSTON Once served, Defendants shall respond to the summons in one of the following ways: (A) If Defendants wish to assert the affirmative defense of Plaintiff's failure to exhaust administrative remedies in a grievance process, Defendants must, (i) within 20 days of service, file an answer; 3 (ii) within 90 days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue1; and, (iii) within 120 days of filing an answer, file a separate summary judgment motion, with a supporting memorandum. (B) If Defendants choose to challenge the bare allegations of the Complaint, Defendants shall, within 20 days of service, (i) file an answer; or (ii) file a motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6). (C) If Defendants choose not to rely on the defense of failure to exhaust and wish to pierce the allegations of the Complaint, Defendants must, (i) within 20 days of service, file an answer; (ii) within 90 days of filing an answer, prepare and file a Martinez report addressing the substance of the complaint; and, (iii) within 120 days of filing an answer, file a separate summary judgment motion, with a supporting memorandum. 1 See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court's practice of ordering prison administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging constitutional violation against institution officials). In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a Martinez report, saying: Under the Martinez procedure, the district judge or a United States magistrate [judge] to whom the matter has been referred will direct prison officials to respond in writing to the various allegations, supporting their response by affidavits and copies of internal disciplinary rules and reports. The purpose of the Martinez report is to ascertain whether there is a factual as well as a legal basis for the prisoner’s claims. This, of course, will allow the court to dig beneath the conclusional allegations. These reports have proved useful to determine whether the case is so devoid of merit as to warrant dismissal without trial. Id. at 1007. 4 (D) If Defendants wish to seek relief otherwise contemplated under the procedural rules (e.g., requesting an evidentiary hearing), Defendants must file an appropriate motion within 90 days of filing his answer. The parties shall take note that local rules governing civil cases are in effect. All requirements are important but the most significant changes are in motion practice and sealed filings. This Court will order the parties to refile summary-judgment motions which do not follow the standards. See D. Utah Civ. R. 5-2 (Filing Cases and Documents under Court Seal); id. 7-1 (Motions and Memoranda); id. 26-2 (Standard Protective Order and Stays of Depositions); id. 56-1 (Summary Judgment: Motions and Supporting Memoranda). Plaintiff is notified that if Defendants move for summary judgment Plaintiff may not rest upon the mere allegations in the complaint. Instead, as required by Federal Rule of Civil Procedure 56(e), to survive a motion for summary judgment Plaintiff must allege specific facts, admissible in evidence, showing that there is a genuine issue remaining for trial. ORDER Accordingly, IT IS HEREBY ORDERED that: (1) Defendant Clearance Committee is DISMISSED. (2) Plaintiff’s motion for service of process is GRANTED. (See Docket no. 12.) The USMS shall serve a completed summons, a copy of the Complaint, (Docket no. 6), and a copy of this Order upon the above-listed remaining defendants. (3) Within twenty days of service, Defendants must file an answer or motion to dismiss, as outlined above. 5 (4) If filing (on exhaustion or any other basis) a Martinez report, Defendants must do so within 90 days of filing his answer(s). Under this option, Defendants must then file a summaryjudgment motion within 120 days of filing their answer. (5) If served with a Martinez report, Plaintiff may file a response within 30 days of the report’s filing date. (6) If served with a summary-judgment motion or motion to dismiss, Plaintiff must submit a response within 30 days of the motion’s filing date. (7) Summary-judgment motion deadline is 120 days from filing of answer. (8) If requesting relief otherwise contemplated under the procedural rules, Defendants must do so within 90 days of filing their answer. DATED this 1st day of September, 2016. BY THE COURT: CHIEF JUDGE DAVID NUFFER United States District Court 6

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