Losee v. Petermann et al

Filing 13

MEMORANDUM DECISION and ORDER REQUIRING SERVICE OF PROCESS. USMS shall serve a completed summons, a copy of the Complaint, and a copy of this Order upon the above listed defendants. See order for details. Signed by Judge Ted Stewart on 3/30/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KARL GRANT LOSEE,
Plaintiff,

MEMORANDUM DECISION & ORDER
REQUIRING SERVICE OF PROCESS

v.
BEVERLY PETERMANN et al.,
Defendants.

Case No. 2:13-CV-263 TS
District Judge Ted Stewart

Plaintiff, Karl Grant Losee, an inmate at Utah State Prison, filed this pro se civil rights
suit, 1 proceeding in forma pauperis. 2
Based on review of the Complaint, 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 these Utah
Department Corrections employees:
Beverly Petermann, Accountant
John Capell, Accountant
Alfred Bigelow, Warden
Steven Turley, Executive Director
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;

1

See 42 U.S.C.S. § 1983 (2014).

2

See 28 id. § 1915.

(ii) within 90 days of filing an answer, prepare and file a Martinez report limited
to the exhaustion issue 3; 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,
(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.

3

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.

(D) If Defendants wish to seek relief otherwise contemplated under the procedural rules
(e.g., requesting 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. 4
Plaintiff is notified that he may, within 30 days of its filing, respond to a Martinez report
if desired. Plaintiff is further notified that he 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
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) USMS shall serve a completed summons, a copy of the Complaint, 5 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,
as outlined above.
4

See D. Utah Civ. R. 5-2 (Filing Cases and Documents under Court Seal); id. 7-1 (Motions and Memoranda); id. 262 (Standard Protective Order and Stays of Depositions); id. 56-1 (Summary Judgment: Motions and Supporting
Memoranda).
5

(See Docket Entry # 3.)

(3) If filing a Martinez report, Defendants must do so within 90 days of filing their
answer. 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 submit a response within 30 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) Summary-judgment motion deadline is 120 days from filing of answer.
(7) If requesting relief otherwise contemplated under the procedural rules, Defendants
must do so within 90 days of filing their answer.
DATED this 30th day of March, 2015.
BY THE COURT:

JUDGE TED STEWART
United States District Court