Dimmick v. Harms et al, No. 2:2013cv00794 - Document 43 (D. Utah 2016)
Court Description: MEMORANDUM DECISION and ORDER REQUIRING SERVICE OF PROCESSgranting 40 Motion for Service of Process (Prisoner). The United States Marshals Service shall serve a summons, a copy of Plaintiffs complaint, and a copy of this Order upo n Defendants Kristie Bourdon, Jesse Gallegos, Manny Garcia, Curtis L. Garner, Clark A. Harms, Angela Micklos, Eric Peterson, Robert S. Yeates. It is hereby ordered that the USMS shall serve a completed summons, a copy of the Amended Complaint and a copy of this Order upon the above listed dfts. See order for details. Signed by Judge Robert J. Shelby on 05/25/2016. (kpf)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH DUSTIN J. DIMMICK, Plaintiff, MEMORANDUM DECISION & ORDER REQUIRING SERVICE OF PROCESS v. KRISTIE BOURDON et al., Defendants. Case No. 2:13-CV-794 RJS District Judge Robert J. Shelby Plaintiff, Dustin J. Dimmick, an inmate at Utah State Prison, filed this pro se civil rights suit,1 proceeding in forma pauperis.2 Based on review of the Amended Complaint, the Court concludes that official service of process is warranted on the defendants. The United States Marshals Service (USMS) is directed to serve a properly issued summons and a copy of Plaintiff's Amended Complaint, along with this Order, upon these State of Utah employees: Kristie Bourdon, parole officer Eric Peterson, Attorney General’s Office Clark Harms, Utah Board of Pardons (BOP) member Angela Micklos, BOP member Curtis Garner, BOP chairman Jesse Gallegos, BOP member Robert Yeates, BOP member Manny Garcia, BOP attorney. 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, 1 See 42 U.S.C.S. § 1983 (2016). 2 See 28 id. § 1915. (i) within 20 days of service, file an answer; (ii) within 90 days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue3; 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) file an answer, within 20 days of service; (ii) within 90 days of filing an answer, prepare and file a Martinez report addressing the substance of the complaint; and, 3 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. (iii) within 120 days of filing an answer, file a separate summary judgment motion, with a supporting memorandum. (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 their answer. Plaintiff is notified that (s)he may, within 30 days of its filing, respond to a Martinez report if desired. Plaintiff is further notified that (s)he must, within 30 days of its filing, respond to a motion to dismiss or summary-judgment motion. Plaintiff is finally notified that, if Defendants move for summary judgment, Plaintiff cannot 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) USMS shall serve a completed summons, a copy of the Amended Complaint4 and a copy of this Order upon the above-listed defendants. (2) Within 20 days of being served, Defendants must file an answer or motion to dismiss, as outlined above. (3) If filing a Martinez report, Defendants must do so within 90 days of filing their answer. Under this option, Defendants must then file a summary-judgment motion within 120 days of filing their answer. 4 (See Docket Entry # 39.) (4) If served with a Martinez report, Plaintiff may submit a response within 30 days of the report’s filing date. (5) 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. (6) Summary-judgment motion deadline is 120 days from filing of answer. (7) If requesting relief otherwise contemplated under the procedural rules, Defendants must do so within 90 days of filing their answer. DATED this 25th day of May, 2016. BY THE COURT: JUDGE ROBERT J. SHELBY United States District Court
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