Mauricio v. Vicor et al

Filing 9

MEMORANDUM DECISION & ORDER granting 4 Motion for Service of Process (Prisoner). The United States Marshals Service shall serve a summons, a copy of Plaintiffs complaint, and a copy of this Order upon Defendants FNU Diamond, FNU Perrerra, FNU Vicor. See order for further details. Signed by Judge Dee Benson on 12/4/13. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KENNETH K. MAURICIO,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
DIRECTING SERVICE OF PROCESS &
DISPOSITIVE MOTION
Case No. 2:13-CV-303 DB

OFFICER VICOR et al.,

District Judge Dee Benson

Defendants.

Plaintiff, Kenneth K. Mauricio, a former inmate at Weber County Correctional Facility,
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.
Based on its review of the Complaint, (see Docket Entry # 3), 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 the following Weber County defendants: Officers Vicor, Perrerra, and Diamond.
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
format to: [e-mail].
(B) If Defendants choose to challenge the bare allegations of the complaint, Defendants
shall, within twenty days of service, 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 wishes to
pierce the allegations of the complaint, Defendants must,
(i) file an answer, within twenty days of service;

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.

2

(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: [e-mail].
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, if Defendants move for summary judgment, Plaintiff may not
rest upon the mere allegations in the ccmplaint. 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.2

2

When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading;
rather, its response must--by affidavits or as otherwise provided in this rule--set

3

ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Plaintiff's motion for service of process is GRANTED. (See Docket Entry # 4.)
(2) the USMS shall serve a completed summons, a copy of the Complaint, (see Docket
Entry # 3), 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 summaryjudgment motion and proposed order, Defendants must do so within ninety days of filing an
answer;
(5) if served with a Martinez report and a summary-judgment motion or motion to
dismiss, Plaintiff must file a response within thirty days; and,
(6) summary-judgment motion deadline is ninety days from filing of answer.
DATED this 4th day of December, 2013.
BY THE COURT:

______________________________
JUDGE DEE BENSON
United States District Court

out specific facts showing a genuine issue for trial. If the opposing party does
not so respond, summary judgment, should, if appropriate, be entered against
that party.
Fed. R. Civ. P. 56(e)(2).

4