Mitchell v. Vick et al

Filing 32

ORDER REQUIRING SERVICE AND SPECIAL REPORT. Signed by Magistrate Judge Charles B Goodwin on 08/07/2018. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAVID B. MITCHELL,
Plaintiff,
v.
CHRISTIE VICK et al.,
Defendants.

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Case No. CIV-18-234-W

ORDER REQUIRING SERVICE AND SPECIAL REPORT
Plaintiff David B. Mitchell, a state prisoner appearing pro se, has filed this action
claiming violations of his federal civil rights. The Court has conducted a preliminary
review of the Complaint (Doc. No. 1) 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 Complaint, along with a
summons issued by the Court Clerk, to be served on each Defendant named in
the Complaint. See Fed. R. Civ. P. 4(c)(1). Service shall be accomplished as
follows:
(a) The Court Clerk is directed to mail to Plaintiff the necessary forms for
requesting the issuance of summonses along with this Order.1 See Fed.
R. Civ. P. 4(b). Plaintiff must complete these forms and return them to
the Court Clerk within 21 days of the date of this Order.
(b) Upon receipt of properly completed forms, the Court Clerk will issue
summonses and mail them to Plaintiff. Plaintiff is responsible for
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Plaintiff is not authorized to proceed under 28 U.S.C. § 1915(a) in this action.

ensuring that service of process is accomplished upon each Defendant in
accordance with Rule 4 of the Federal Rules of Civil Procedure.
(c) Each Defendant must be served within ninety (90) days from the date of
this Order. Unless service is waived, Plaintiff must ensure that a proof of
service is filed for each Defendant on or before the expiration of this 90day time 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 North Fork Correctional Center in
Sayre, Oklahoma, shall undertake a review of the subject matter of the
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 Complaint;
and
(c) to determine whether prior related complaints, either in this Court or
elsewhere, should be considered together with this 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 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 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

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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.
(8) No discovery shall be served upon any party until the special report has been
filed, except as the Court may otherwise order.2
The Court Clerk is directed to mail Plaintiff the necessary forms for requesting issuance of
summonses along with a copy of this Order.
IT IS SO ORDERED this 7th day of August, 2018.

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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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