Maguire v. Patterson

Filing 141

MEMORANDUM DECISION and THIRD ORDER DIRECTING SERVICE OF PROCESS, ANSWER AND/OR DISPOSITIVE MOTION. The USMS Shall serve a completed summons, a copy of the Amended Complaint and a copy of this Order upon the above listed defendants. W ithin 20 days of being served, Defendants must file an answer or motion to dismiss and proposed order, as outlined above. If filing a Martinez report, Plaintiff may file a response within thirty days of the report's filing date. 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. If requesting relief otherwise contemplated under the procedural rules, Defendants must do so within 90 days of filing their answer. Denying 108 Motion for Summary Judgment. Granting 132 Plaintiffs motion to waive summary judgment time limits for his evidence already. Signed by Judge Clark Waddoups on 2/18/2014. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

BRIAN MAGUIRE,
Plaintiff,

MEMORANDUM DECISION &
THIRD ORDER DIRECTING SERVICE
OF PROCESS, ANSWER AND/OR
DISPOSITIVE MOTION

v.
Case No. 2:10-CV-626 CW
DR. RICHARD GARDEN et al.,
District Judge Clark Waddoups
Defendants.

Plaintiff, Brian Maguire, an inmate at Utah State Prison (USP), filed this pro se civil
rights suit. See 42 U.S.C.S. § 1983 (2013). Plaintiff was allowed to proceed in forma pauperis.
See 28 id. § 1915. The Court now has information giving specific names to John Doe defendants
three and four. Per Utah Department of Corrections's (UDOC) Initial Contact Report, filed by
Jerry Miller, on July 15, 2008, which is part of the record here, the Court orders UDOC officials
to in good faith investigate the identity, and supply information to facilitate the serving, of "Medtechs Craig and Rogers," who reportedly "checked Maguires [sic] vitals and told him to stay on
the floor."
Based on review of the information about the identity of "Med-techs Craig and Rogers,"
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
Amended Complaint, along with this Order, upon the following individuals:
Med-tech Craig
Med-tech Rogers

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,
(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 issue1; 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,

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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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(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,
(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., request an evidentiary hearing), Defendants must file an appropriate motion within
90 days of filing their answer.
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. 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 (s)he may, within 30 days of its filing, respond to a Martinez
report if desired. Plaintiff is further notified that (s) 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
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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) The USMS shall serve a completed summons, a copy of the Amended Complaint,
(Docket Entry # 31), 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
and proposed order, as outlined above.
(3) If filing a Martinez report, Defendants must do so within 90 days of filing their
answer(s). Under this option, Defendants must then file a summary-judgment motion within 120
days of filing their answer.
(4) If served with a Martinez report, Plaintiff may file a response within thirty 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) If requesting relief otherwise contemplated under the procedural rules, Defendants
must do so within 90 days of filing their answer.
(7) The pending summary-judgment motion filed by already-served Defendants is
DENIED. (See Docket Entry # 108.)

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(8) Already-served Defendants may join together with the defendants to be served on the
basis of this Order to file a new joint summary-judgment motion on the schedule provided in this
Order.
(8) Plaintiff's motion to waive summary-judgment time limits for his evidence already
submitted is GRANTED. (See Docket Entry # 132.)
DATED this 18th day of February, 2014.
BY THE COURT:

______________________________
JUDGE CLARK WADDOUPS
United States District Court

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