Wilkerson v. Hoggard et al

Filing 63

MEMORANDUM DECISION and ORDER denying 36 Motion for Summary Judgment; granting 56 Motion to Amend/Correct Complaint; and denying 23 Motion to Dismiss. Signed by Judge Dale A. Kimball on 3/28/2016. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RYAN WILKERSON,
Plaintiff,

MEMORANDUM DECISION & ORDER
REQUIRING SERVICE OF PROCESS

v.
RICK ELDRIDGE et al.,
Defendants.

Case No. 2:14-CV-586 DAK
District Judge Dale A. Kimball

Plaintiff/inmate, Ryan Wilkerson, filed this pro se civil rights suit,1 proceeding in forma
pauperis.2 His Amended Complaint was served on Defendants Dennis Hoggard (San Juan
County Jail (SJCJ)), Preston Palmer (SJCJ), and James Chipp (Utah Department of Corrections
(UDOC)). Defendants answered the Amended Complaint, filed a Martinez report, a motion to
dismiss and a summary-judgment motion. The latter two motions are currently pending before
the Court. Meanwhile, Plaintiff moves the Court for leave to amend his Amended Complaint.
Defendants oppose the Motion to Amend.
Having considered whether Plaintiff has unduly delayed or acted in bad faith or with
dilatory motives, possible prejudice to Defendants, and whether amendment would be futile,3 the
Court grants Plaintiff’s Motion to Amend. The Court is impressed by Plaintiff’s astuteness in
representing himself thus far. It has not detected bad faith on Plaintiff’s part, nor does it believe
Defendants face undue prejudice. After all, Plaintiff is pro se; and, though he has no legal
1

See 42 U.S.C.S. § 1983 (2016).

2

See 28 id. § 1915.

3

United States Ass’n of Journeymen & Apprentices v. Georgia Power Co., 684 F.2d 721, 724 (11th Cir. 1982) (citing
Foman v Davis, 371 U.S. 178, 182 (1962)).

training or access to a law library, he apparently has been picking up cues from Defendants’
filings to see what is missing from his earlier complaints and trying to rectify their inadequacies
in his proposed Second Amended Complaint. If either party is operating at a disadvantage here,
it is Plaintiff. Finally, having carefully reviewed the proposed Second Amended Complaint and
Defendants’ opposition, the Court does not see the proposed Second Amended Complaint as
futile. (Caveat: In saying this, the Court expresses no opinion on the merits of Plaintiff’s
claims.) The Court thus grants Plaintiff’s motion to amend his Amended Complaint.
The Court now concludes that official service of process is warranted on Defendants.
The United States Marshals Service (USMS) is directed to serve a properly issued summons and
a copy of Plaintiff's Second Amended Complaint,4 along with this Order, upon these San Juan
County and Utah Department of Corrections (UDOC) employees:
SHERIFF RICK ELDRIDGE (SJCJ)
JAIL COMMANDER JOHN YOUNG (SJCJ)
OFFICER DENNIS HOGGARD (SJCJ)
OFFICER PRESTON PALMER (SJCJ)
SUPERVISOR JAMES CHIPP (UDOC)
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;
(ii) within 90 days of filing an answer, prepare and file a Martinez report limited
to the exhaustion issue5; and,

4

5

(See Docket Entry # 57.)

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).

(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.
(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.
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
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.

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) Plaintiff’s motion to amend his amended complaint is GRANTED.6 USMS shall serve
a completed summons, a copy of the Second Amended Complaint7 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.
(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.

6

(See Docket Entry # 56.)

7

(See Docket Entry # 57.)

(7) If requesting relief otherwise contemplated under the procedural rules, Defendants
must do so within 90 days of filing their answer.
(8) Defendants’ Motion to Dismiss and Motion for Summary Judgment are DENIED.8
Relevant portions of these motions may be renewed as Defendants see fit after they meet the
requirements of this Order.
DATED this 28th day of March, 2016.
BY THE COURT:

JUDGE DALE A. KIMBALL
United States District Court

8

(See Docket Entry #s 23 & 36.)