Maguire v. Patterson

Filing 50

MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF PROCESS, ANSWER AND/ORDISPOSITIVE MOTION-denying 44 Motion to Appoint Counsel ; denying 21 Motion to Appoint Counsel ; denying 23 Motion to Appoint Counsel ; denying 26 Motion to Appoint Counsel ; denying 34 Motion to Appoint Counsel. Signed by Judge Clark Waddoups on 7/26/11. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

BRIAN MAGUIRE,
Plaintiff,
v.

MEMORANDUM DECISION &
ORDER DIRECTING SERVICE OF
PROCESS, ANSWER AND/OR
DISPOSITIVE MOTION
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.
1983 (2011).

See 42 U.S.C.S. §

Plaintiff was allowed to proceed in forma pauperis.

See 28 id. § 1915.
Based on review of the Amended Complaint, the Court
concludes that official service of process is warranted.

The

United States Marshals Service is directed to serve a properly
issued summons and a copy of Plaintiff's Amended Complaint, along
with this Order, upon the following individuals:
Dr. Richard Garden
P.A. Chris Abbott
John Does 1-8, as possible, from descriptions provided
within complaint
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) 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

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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format, to:
[e-mail].
(B) If Defendants choose to challenge the bare allegations
of the complaint, Defendants shall, within twenty days of
service,
(i) file an answer; or
(ii) 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 Defendants choose not to rely on the defense of
failure to exhaust and wish to pierce the allegations of the
complaint, Defendants 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:
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[e-mail].
Plaintiff is 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 judgment
Plaintiff must allege specific facts, admissible in evidence,
showing that there is a genuine issue remaining for trial.
MOTIONS FOR APPOINTED PRO BONO COUNSEL
Plaintiff has filed five motions for appointed pro bono
counsel, which the Court now address.
constitutional right to counsel.

Plaintiff has no

See Carper v. Deland, 54 F.3d

613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d
397, 399 (10th Cir. 1987).

However, the Court may in its

discretion appoint counsel for indigent inmates.

See 28 U.S.C.S.

§ 1915(e)(1) (2010); Carper, 54 F.3d at 617; Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991).

"The burden is upon the

applicant to convince the court that there is sufficient merit to
his claim to warrant the appointment of counsel."

McCarthy v.

Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
When deciding whether to appoint counsel, the district court
should consider a variety of factors, "including 'the merits of
the litigant's claims, the nature of the factual issues raised in
the claims, the litigant's ability to present his claims, and the
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complexity of the legal issues raised by the claims.'"

Rucks v.

Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams,
926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39.
Considering the above factors, the Court concludes here that, at
this time, Plaintiff's claims may not be colorable, the issues in
this case are not complex, and Plaintiff is not at this time too
incapacitated or unable to adequately function in pursuing this
matter.

Thus, the Court denies for now Plaintiff's motions for

appointed counsel.

Further motions for appointed counsel shall

be returned to Plaintiff as unnecessarily repetitive and a drain
on Court resources.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Plaintiff's motions for service of process are GRANTED.
(See Docket Entry #s 27 & 41.)
(2) The United States Marshals Service 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.
(3) Within twenty days of being served, Defendants must file
an answer or motion to dismiss and proposed order, as outlined
above.
(4) If filing (on exhaustion or any other basis) a Martinez
report with a summary judgment motion and proposed order,
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Defendants must do so within ninety days of filing their
answer(s).
(5) If served with a Martinez report and a summary judgment
motion or motion to dismiss, Plaintiff may file a response within
thirty days.
(6) Summary-judgment motion deadline is ninety days from
filing of answer.
(7) Plaintiff's motions for appointed counsel are DENIED,
(see Docket Entry #s 21, 23, 26, 34, & 44); however, if, after
the case develops further, it appears that counsel may be needed
or of specific help, without further prompting from Plaintiff,
the Court will ask an attorney to appear pro bono on Plaintiff's
behalf.

No further motions for appointed counsel shall be

accepted by the Court.
DATED this 26th day of July, 2011.
BY THE COURT:

______________________________
JUDGE CLARK WADDOUPS
United States District Court

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