Wood v. Cook et al

Filing 16

MEMORANDUM DECISION AND ORDER REQUIRING SERVICE OF PROCESS: The United States Marshals Service is firected to serve a properly issued summons and copy of the Plaintiffs Complaint, along with this Order,upon these Utah Department of Co rrections employees. Doug Cook, Kennon Tubbs, and PA Merrill.granting 14 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 Doug Cook, P.A Merrill, FNU Tubbs; denying 15 Motion to Dismiss; If service is not granted and the fee is refundable. See order for details. Signed by Judge Robert J. Shelby on 2/4/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRIAN LEE WOOD,
Plaintiff,

MEMORANDUM DECISION & ORDER
REQUIRING SERVICE OF PROCESS

v.
DOUG COOK et al.,

Case No. 2:15-CV-71 RJS
Defendants.

District Judge Robert J. Shelby

Plaintiff, Brian Lee Wood, 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 and Amended Complaint, the Court concludes that
official service of process is warranted on the defendants. 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 of Corrections (UDOC) employees:
DOUG COOK
KENNON TUBBS
P.A. MERRILL.
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,

1

See 42 U.S.C.S. § 1983 (2015).

2

See 28 id. § 1915.

(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 issue3; 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.
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) Plaintiff’s motion for service of process is GRANTED.4 USMS shall serve a
completed summons, a copy of the Complaint and Amended Complaint5 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.
4
5

(See Docket Entry # 14.)
(See Docket Entry #s 5 & 9.)

(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.
(8) Plaintiff’s motion to dismiss (if service is not granted and the filing fee is refundable)
is DENIED.6
DATED this 4th day of February, 2016.
BY THE COURT:

JUDGE ROBERT J. SHELBY
United States District Court

6

(See Docket Entry # 15.)