Presley v. Allbaugh et al
Filing
13
ORDER REQUIRING SERVICE AND SPECIAL REPORT. Signed by Magistrate Judge Charles B Goodwin on 08/24/2018. (jb)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THOMAS PRESLEY,
Plaintiff,
v.
JOE M. ALLBAUGH et al.,
Defendants.
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Case No. CIV-18-573-HE
ORDER REQUIRING SERVICE AND SPECIAL REPORT
Plaintiff Thomas Presley, appearing pro se and proceeding in forma pauperis, has
filed this action claiming a violation of his federal civil rights. The Court has conducted a
preliminary review of the Amended Complaint (Doc. No. 12) 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) The Court Clerk is directed to mail to Plaintiff the necessary forms for
requesting the issuance of summonses along with this Order. For service
to be made, Plaintiff must complete these forms and return them to the
Court Clerk, along with sufficient copies of the Amended Complaint to
effect service of process upon each Defendant, within twenty-one (21)
days from the date of this Order. See Fed. R. Civ. P. 4(b).
(b) Upon receipt of properly completed forms, the Court Clerk will issue
summonses. Because Plaintiff has been granted leave to proceed in forma
pauperis, the United States Marshals Service (“USMS”) shall be
authorized to attempt to serve each Defendant for whom Plaintiff
properly completes a request for the issuance of a summons. See Fed. R.
Civ. P. 4(c)(3).
(c) Despite the authorization of the USMS to attempt to accomplish service
as set forth in subparagraph (b), service is ultimately Plaintiff’s
responsibility. 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 90-day 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 Joseph Harp Correctional Center in
Lexington, 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, (i) should be considered together with this Amended
Complaint, or (ii) affect Plaintiff’s ability to proceed in forma pauperis
in light of the “three strikes” provision of the Prison Litigation Reform
Act, 28 U.S.C. § 1915(g).
(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).
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(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.
(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 the necessary forms for requesting issuance of
summonses along with a copy of this Order.
IT IS SO ORDERED this 24th 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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