Nelder v. Bigelow et al

Filing 14

MEMORANDUM DECISION and ORDER DIRECTING SERVICE OF PROCESS, ANSWER AND/OR DISPOSITIVE MOTION. It is hereby ordered United States Marshals Service Shall serve a completed summons, a copy of the Amended Complaint, and a copy of this Order upon the above listed defendant. See order for details. Signed by Judge Dee Benson on 11/20/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

MICHAEL P. NELDER,

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

Plaintiff,
v.

Case No. 2:12-CV-245 DB
KELLY WORLEY et al.,
District Judge Dee Benson
Defendants.

Plaintiff, Michael P. Nelder, an inmate at Central Utah
Correctional Facility, filed this pro se civil rights suit.
42 U.S.C.S. § 1983 (2012).
forma pauperis.

See

Plaintiff was allowed to proceed in

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 individual:

Sergeant Kelly

Worley.
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

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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(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
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 Defendant chooses not to rely on the defense of
failure to exhaust and wish 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
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(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 Defendant moves 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) The United States Marshals Service shall serve a
completed summons, a copy of the Amended Complaint, (Docket Entry
# 13), and a copy of this Order upon the above-listed defendant.
(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 his answer.

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(4) If served with a Martinez report and a summary judgment
motion or motion to dismiss, Plaintiff may file a response within
thirty days.
(5) Summary-judgment motion deadline is ninety days from
filing of answer.
DATED this 20th day of November, 2012.
BY THE COURT:

______________________________
JUDGE DEE BENSON
United States District Court

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