Duvall v. Oklahoma State Board of Osteopathic Examiners et al

Filing 12

ORDER REQUIRING SERVICE AND SPECIAL REPORT. Signed by Magistrate Judge Charles B Goodwin on 06/26/2017. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHN C. DUVALL,
Plaintiff,
v.
OKLAHOMA STATE BOARD OF
OSTEOPATHIC EXAMINERS et al.,
Defendants.

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Case No. CIV-17-247-F

ORDER REQUIRING SERVICE AND SPECIAL REPORT
Plaintiff John Duvall, appearing pro se, has filed this action under 42 U.S.C. § 1983
and Oklahoma tort law, claiming lack of medical care. The Court has conducted a
preliminary review of the Amended Complaint (Doc. No. 11) and finds that an
investigation and special report are necessary to develop a record sufficient to ascertain
whether there are any factual or legal bases for Plaintiff’s claims. See Hall v. Bellmon, 935
F.2d 1106, 1109 (10th Cir. 1991). In compliance with the guidelines set forth in Martinez
v. Aaron, 570 F.2d 317 (10th Cir. 1978), IT IS THE ORDER OF THIS COURT that:
(1) Plaintiff shall cause a copy of this Order and of the Amended Complaint, along
with a summons issued by the Court Clerk, to be served on each Defendant
named in the Amended Complaint. See Fed. R. Civ. P. 4(c)(1). Service shall be
accomplished as follows:
(a) Because Plaintiff has already provided the necessary forms for requesting
the issuance of summonses (Doc. No. 9), the Court Clerk will issue the
summonses and mail them to Plaintiff. Each Defendant must be served
in accordance with Federal Rule of Civil Procedure 4 within ninety (90)
days from the date of this Order.
(b) Unless service is waived, Plaintiff must ensure that a proof of service is
filed for each Defendant on or before the expiration of this 90-day period.

See Fed. R. Civ. P. 4(c), (d), (l), (m). The failure to file timely proofs of
service as to any Defendant may result in the dismissal of the claims
against that Defendant. See Fed. R. Civ. P. 4(m).
(2) Officials responsible for the operation of James Crabtree Correctional Center in
Helena, Oklahoma, shall undertake a review of the subject matter of the
Amended Complaint:
(a) to ascertain the facts and circumstances, including the outcome of
administrative relief sought by Plaintiff;
(b) to consider whether any action can and should be taken by the institution
or appropriate officials to resolve the subject matter of the Amended
Complaint; and
(c) to determine whether prior related complaints, either in this Court or
elsewhere, should be considered together with this Amended Complaint.
(3) Following completion of the review, a written special report setting forth the
findings shall be compiled. The special report shall restate in separate
paragraphs the allegations of the Amended Complaint followed by the pertinent
information developed by the review. If appropriate, medical and psychiatric
records shall be included in the special report. Likewise, any rules and
regulations applicable to the claims and time frame of the Amended Complaint
shall be included as part of the special report.
(4) The special report shall be filed no later than sixty (60) days from the date on
which the first Defendant is served. If a Defendant waives service, the date on
which the waiver form is sent shall be considered the date of service. See Fed.
R. Civ. P. 4(d)(4).
(5) Further, in accordance with 42 U.S.C. § 1997e(g)(2) and Local Civil Rule 9.2(c),
the Court orders each Defendant to file an answer or a dispositive motion within
sixty (60) days of service.
(6) If a motion to dismiss or other dispositive motion is filed, Plaintiff must file a
response within twenty-one (21) days from the date the motion was filed. See
LCvR 7.1(g). Failure to respond to the motion within that time period may result
in the motion being deemed confessed. Id.
(7) Unless otherwise ordered, any party shall have seven (7) days to respond to a
request for an extension of time.

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(8) No discovery shall be served upon any party until the special report has been
filed, except as the Court may otherwise order.1
The Court Clerk is directed to mail Plaintiff a copy of this Order.
IT IS SO ORDERED this 26th day of June, 2017.

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Defendants are advised that a dispositive motion based on the affirmative defense of
failure to exhaust administrative remedies is typically considered a motion for summary
judgment, governed by the procedural rules applicable to such motions. If appropriate,
however, Defendant(s) may seek leave from the Court to file an initial motion for summary
judgment based solely upon this affirmative defense and to have the parties’ discovery
initially limited to the nonexhaustion issue. If disposition of such an initial motion is not
dispositive of the entire case, the Court may grant leave for Defendant(s) to file a second
motion for summary judgment. See LCvR 56.1(a).
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