Nelson v. Thompson

Filing 5

MEMORANDUM DECISION and ORDER DIRECTING SERVICE OF PROCESS AND DISPOSITIVE MOTION. Signed by Judge Robert J. Shelby on 6/7/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOT OWEN NELSON,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
DIRECTING SERVICE OF PROCESS &
DISPOSITIVE MOTION
Case No. 1:13-CV-49 RJS

TERRY THOMPSON,

District Judge Robert Shelby

Defendant.

Plaintiff, Scot Owen Nelson, a former inmate at Weber County
Correctional Facility, filed this pro se civil rights suit.
42 U.S.C.S. § 1983 (2013).
forma pauperis.

See

Plaintiff was allowed to proceed in

See 28 id. § 1915.

Based on its review of the Complaint, (see Docket Entry #
3), the Court concludes that official service of process is
warranted.

The United States Marshals Service (USMS) is directed

to serve a properly issued summons and a copy of Plaintiff's
Complaint, along with this Order, upon the following Weber County
defendant:

Terry Thompson.

Once served, Defendant shall respond to the summons in one
of the following ways:
(A) If Defendant wishes to assert the affirmative defense of
Plaintiff's failure to exhaust administrative remedies in a
grievance process, Defendant must,

(i) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare
and file a Martinez report limited to the exhaustion
issue1;
(iii) within ninety days of filing an answer, file a
separate summary-judgment motion, with a supporting
memorandum; and
(iv) within ninety days of filing an answer, submit a
proposed order for dismissing the case based upon
Plaintiff's failure to exhaust, in word processing
format to:
[e-mail].
(B) If Defendant chooses to challenge the bare allegations
of the complaint, Defendant shall, within twenty days of
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.

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service, file a motion to dismiss based on Federal Rule of
Civil Procedure 12(b)(6), and submit a proposed order for
dismissing the case, in word processing format, to:
[e-mail].
(C) If Defendant chooses not to rely on the defense of
failure to exhaust and wishes to pierce the allegations of
the complaint, Defendant must,
(i) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare
and file a Martinez report addressing the substance of
the complaint;
(iii) within ninety days of filing an answer, file a
separate summary-judgment motion, with a supporting
memorandum; and
(iv) within ninety days of filing an answer, submit a
proposed order for dismissing the case based upon the
summary-judgment motion, in word processing format, to:
[e-mail].
The parties shall take note that new local rules governing
civil cases are now in effect.

The Approved Amendments to the

Local Rules and Updated Rules are posted on the Court's website.
All new requirements are important but the most significant
changes are in motion practice and sealed filings.
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This Court

will order the parties to refile summary-judgment motions which
do not follow the new 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 Defendant moves 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.2
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) the USMS shall serve a completed summons, a copy of the
Complaint, (see Docket Entry # 3), and a copy of this Order upon
the above-listed defendant;

2

When a motion for summary judgment is properly made
and supported, an opposing party may not rely merely
on allegations or denials in its own pleading; rather,
its response must--by affidavits or as otherwise
provided in this rule--set out specific facts showing
a genuine issue for trial. If the opposing party does
not so respond, summary judgment, should, if
appropriate, be entered against that party.
Fed. R. Civ. P. 56(e)(2).

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(2) within twenty days of being served, Defendant must file
an answer or motion to dismiss and proposed order, as outlined
above;
(3) if filing (on exhaustion or any other basis) a Martinez
report with a summary-judgment motion and proposed order,
Defendant must do so within ninety days of filing an answer;
(4) if served with a Martinez report and a summary-judgment
motion or motion to dismiss, Plaintiff must file a response
within thirty days; and,
(5) summary-judgment motion deadline is ninety days from
filing of answer.
DATED this 7th day of June, 2013.
BY THE COURT:

______________________________
JUDGE ROBERT J. SHELBY
United States District Court

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