Crist v. Tubbs et al

Filing 38

MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF PROCESS, ANSWER AND/OR DISPOSITIVE MOTION- IT IS HEREBY ORDERED that: (1) Plaintiff's motion requesting clarification or reconsideration is GRANTED. (2) Plaintiff's motion to file a Second A mended Complaint is GRANTED. (3) The Court's earlier order for Defendants to respond to the First Amended Complaint is VACATED. (4) The United States Marshals Service shall serve a completed summons, a copy of the Second Amended Complaint, and a copy of this Order upon the listed defendants. (5) Within twenty days of being served, Defendants must file an answer or motion to dismiss and proposed order, as outlined above. (6) If filing (on exhaustion or any other basis) a Martinez report wi th a summary judgment motion and proposed order, Defendants must do so within ninety days of filing their answer(s). (7) If served with a Martinez report and a summary judgment motion or motion to dismiss, Plaintiff may file a response within thirty days. (8) Summary-judgment motion deadline is ninety days from filing of answer. (9) Plaintiff's motions regarding payment of his filing fee are DENIED as moot. (10) Defendants shall respond to Plaintiff's motions for preliminary injunctive relief. Signed by Judge Ted Stewart on 5/16/2011. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

DAMON CRIST,
Plaintiff,
v.

MEMORANDUM DECISION &
ORDER DIRECTING SERVICE OF
PROCESS, ANSWER AND/OR
DISPOSITIVE MOTION
Case No. 2:10-CV-675 TS

DR. KENNON TUBBS et al.,

District Judge Ted Stewart

Defendants.

Plaintiff, Damon Crist, 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.

The Court ordered service of process on

Plaintiff's Amended Complaint.

The Court now grants Plaintiff's

motion to file a Second Amended Complaint, (see Docket Entry #
18), and vacates its early order for Defendants to respond to the
First Amended Complaint.
Based on review of the Second 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. Kennon Tubbs
Medical Technician Wesley Shuman
Medical Technician Christopher Best
Medical Technician Ford Fannen
Sgt. James Olin
Grievance Coordinator Billie Casper
Sgt. William Morell
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;

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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(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 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;
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(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].
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.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Plaintiff's motion requesting clarification or
reconsideration is GRANTED.

(See Docket Entry # 36.)

(2) Plaintiff's motion to file a Second Amended Complaint is
GRANTED.

(See Docket Entry # 18.)

(3) The Court's earlier order for Defendants to respond to
the First Amended Complaint is VACATED.

(See Docket Entry # 28.)

(4) The United States Marshals Service shall serve a
completed summons, a copy of the Second Amended Complaint,
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(Docket Entry # 18-1), and a copy of this Order upon the abovelisted defendants.
(5) Within twenty days of being served, Defendants must file
an answer or motion to dismiss and proposed order, as outlined
above.
(6) If filing (on exhaustion or any other basis) a Martinez
report with a summary judgment motion and proposed order,
Defendants must do so within ninety days of filing their
answer(s).
(7) If served with a Martinez report and a summary judgment
motion or motion to dismiss, Plaintiff may file a response within
thirty days.
(8) Summary-judgment motion deadline is ninety days from
filing of answer.
(9) Plaintiff's motions regarding payment of his filing fee
are DENIED as moot.

(See Docket Entry #s 11 & 19.)

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(10) Defendants shall respond to Plaintiff's motions for
preliminary injunctive relief.

(See Docket Entry #s 9, 14, &

25.)
DATED this 16th day of May, 2011.
BY THE COURT:

______________________________
CHIEF JUDGE TED STEWART
United States District Court

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