Dimmick v. Harms et al

Filing 58

MEMORANDUM DECISION and THIRD ORDER REQUIRING SERVICE OF PROCESS. It is hereby ordered that: USMS shall serve a completed summons, a copy of the Amended Complaint, and a copy of this Order upon the above listed defendants. Within 20 days of being served, Defendants must file an answer or motion to dismiss as outlined above. See order for details. Signed by Judge Robert J. Shelby on 1/4/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DUSTIN J. DIMMICK,

MEMORANDUM DECISION & THIRD
ORDER REQUIRING SERVICE OF
PROCESS

Plaintiffs,
v.
KRISTIE BOURDON et al.,

Case No. 2:13-CV-794-RJS

Defendants.

District Judge Robert J. Shelby

For a second time, the Court ordered service of this prisoner civil-rights complaint on the
following defendants:
Kristie Bourdon, parole officer
Eric Peterson, Attorney General’s Office
Clark Harms, Utah Board of Pardons (BOP) member
Angela Micklos, BOP member
Curtis Garner, BOP chairman
Jesse Gallegos, BOP member
Robert Yeates, BOP member
However, the summonses were for a second time returned unexecuted as to each one.
The Court again orders service of process on all the above-listed defendants. The Court
has since obtained more correct addresses for each defendant. Clerk shall issue summons to be
served upon Defendants. The United States Marshals Service (USMS) is directed to serve a
properly issued summons and a copy of Plaintiff’s Amended Complaint, along with this Order,
upon the above-listed defendants.
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,
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(i) within 20 days of service, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report limited
to the exhaustion issue1; 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.

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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(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. This Court will order the parties to refile summary-judgment motions which do not
follow the standards.2
Plaintiff is notified that (s)he may, within 30 days of its filing, respond to a Martinez
report if desired. Plaintiff is further notified that (s)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 Amended Complaint,3 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.

2

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).
3

See Docket Entry # 39.

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(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 4th day of January, 2017.
BY THE COURT:

ROBERT J. SHELBY
United States District Judge

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