Bacon v. Winder et al
MEMORANDUM DECISION & SECOND ORDER REQUIRING SERVICE ON DEFENDANTS. The United States Marshals Service is again directed to serve properly issued summons and a copy of the Plaintiffs Amended Complaint along with this order, upon the following Salt Lake County related defendants: Todd R. Wilcox, Brad Lewis, Eric Lindley, Patrick Gee and Deputy Backman. See order for details. Signed by Judge Ted Stewart on 02/09/2018. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MICHAEL A. BACON,
MEMORANDUM DECISION &
SECOND ORDER REQUIRING
SERVICE ON DEFENDANTS
TODD R. WILCOX et al.,
Case No. 2:15-CV-145-TS
District Judge Ted Stewart
The United States Marshals Service (USMS) is again directed to serve a properly issued
summons and a copy of Plaintiff's Amended Complaint, (see Docket Entry # 31), along with this
Order, upon the following Salt Lake County-related defendants: Todd R. Wilcox, Brad Lewis,
Eric Lindley, Patrick Gee and Deputy Backman.
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 issue1; and,
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
(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) within 20 days of service, file an answer;
(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,
Defendants must file an appropriate motion within 90 days of filing his answer.
The parties shall take note that local rules governing civil cases are in effect. This Court
will order the parties to refile summary-judgment motions which do not follow the standards.
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
Id. at 1007.
Plaintiff is notified that if Defendants move for summary judgment Plaintiff may not 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.
Accordingly, IT IS HEREBY ORDERED that:
(1) The USMS shall serve a completed summons, a copy of the Amended Complaint,
(see Docket Entry # 31), and a copy of this Order upon Defendants—Todd R. Wilcox, Brad
Lewis, Eric Lindley, Patrick Gee and Deputy Backman.
(2) Within twenty days of service, Defendants must file answer(s) or motion to dismiss,
as outlined above.
(3) If filing (on exhaustion or any other basis) a Martinez report, Defendants must do so
within 90 days of filing answer(s). Under this option, Defendants must then file a summaryjudgment motion within 120 days of filing their answer.
(4) If served with a Martinez report, Plaintiff may file 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. For Plaintiff’s information and
convenience, the Court has attached the procedural rules governing summary-judgment practice.
(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 9th day of February, 2018.
BY THE COURT:
JUDGE TED STEWART
United States District Court
Fed Rule of Civil Procedure 56
Current through changes received December 12, 2017.
Rule 56. Summary Judgment
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment,
identifying each claim or defense - or the part of each claim or defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or
denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a
motion for summary judgment at any time until 30 days after the close of all discovery.
o (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.
o (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence.
o (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in
o (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may:
o (1) defer considering the motion or deny it;
o (2) allow time to obtain affidavits or declarations or to take discovery; or
o (3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may:
o (1) give an opportunity to properly support or address the fact;
o (2) consider the fact undisputed for purposes of the motion;
o (3) grant summary judgment if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it; or
o (4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
o (1) grant summary judgment for a nonmovant;
o (2) grant the motion on grounds not raised by a party; or
o (3) consider summary judgment on its own after identifying for the parties material facts that may not be
genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may
enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute
and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is
submitted in bad faith or solely for delay, the court—after notice and a reasonable time to respond—may order the
submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An
offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
DISTRICT OF UTAH LOCAL CIVIL RULE 56-1
SUMMARY JUDGMENT: MOTIONS AND SUPPORTING MEMORANDA
(a) Summary Judgment Motions and Memoranda.
A motion for summary judgment and the supporting memorandum must clearly identify itself
in the case caption and introduction.
(b) Motion; Requirements and Supporting Evidence.
A motion for summary judgment must include the following sections and be supported by an
Appendix of Evidence as follows:
(1) Introduction and Relief Sought:A concise statement of each claim or defense for which
summary judgment is sought, along with a clear statement of the relief requested. The
parties should endeavor to address all summary judgment issues in a single motion. If a
party files more than one motion, the court may strike the motion and that require the
motions be consolidated into a single motion.
(2) Background (Optional):Parties may opt to include this section to provide background and
context for the case, dispute, and motion. If included, this section should be placed between
the Relief Sought section and the Statement of Undisputed Material Facts section. Factual
summaries in the background section need not be limited to undisputed facts and need not
cite to evidentiary support.
(3) Statement of Undisputed Material Facts: A concise statement of the undisputed material
facts that entitle the moving party to judgment as a matter of law. Only those facts
necessary to decide the motion should be included in this section. The moving party must
cite with particularity the evidence in the Appendix of Evidence that supports each factual
(4) Argument: An explanation for each claim or defense, of why, under the applicable legal
principles, the moving party is entitled to judgment as a matter of law. The arguments
should include a statement of each claim or defense on which the party is seeking summary
judgment and supporting authorities. Any factual citations must cite to the Appendix of
Evidence, not the Statement of Undisputed Material Facts.
(5) Appendix of Evidence: All evidence offered in support of the motion must be submitted
in an attached appendix. The appendix should be proceded by a captioned cover-page
index that lists each exhibit by number, includes a description or title, and if the exhibit is a
document, identifies the source of the document. The appendix should include complete
copies of all exhibits, including complete copies of depositions, to the extent possible. In
cases where lengthy depositions are relied upon, the moving party need not submit the
entire deposition. However, the moving party must submit at least four (4) pages before and
four (4) pages after the cited depostition transcript pages(s), for a total of at least nine (9).
(c) Opposition Memorandum Requirements and Supporting Evidence.
A memorandum in opposition to a motion for summary judgment must include the following
sections and, if applicable, be supported by an Appendix of Evidence as follows:
(1) Introduction: A concise summary explaining why summary judgment should be denied.
(2) Background (Optional): Parties may opt to include this section to provide background
and context for the case, dispute, and motion. If included, this section should be placed
between the Introduction section and the Response to Statement of Undisputed Material
Facts section. Factual summaries in the background
section need not be limited to undisputed facts and need not cite to evidentiary support.
(3) Response to Statement of Undisputed Material Facts: A restatement of each fact the
opposing party contends is genuinely disputed or immaterial, a concise statement
explaining why the fact is disputed or immaterial, and a citation with particularity to the
evidence upon which the non-moving party relies to refute that fact 8. Any factual citations
must reference the appropriate party's Appendix of Evidence, rather than either party's
factual statements or responses. The nonmoving party should not restate all of the moving
party's statement of facts and should only respond to those facts for which there is a
genuine dispute of material fact.
(4) Statement of Additional Material Facts (if applicable): If additional material facts are
relevant to show that there is a genuine dispute of material fact, state each such fact and
cite with particularity the evidence that supports the factual assertion from the appropriate
party's Appendix of Evidence.
(5) Argument: An explanation for each claim or defense of why, under the applicable legal
principles, summary judgment should be denied. Any factual citations must cite to the
appropriate party's Appendix of Evidence, rather than either party's factual statements or
(6) Appendix of Evidence: All evidence offered in opposition to the motion must be
submitted in an appendix, utilizing the same procedure set out in DUCivR 56-1(b)(5).
Counsel must make every effort not to duplicate evidence submitted by the other party. The
appendix should be preceded by a cover page index that lists each exhibit by number,
includes a description or title and, if the exhibit is a document, identifies the source of the
The moving party may file a reply memorandum. In the reply, a moving party may cite only
additional evidence not previously cited in the opening memorandum to rebut a claim that a
material fact is in dispute. Otherwise, no additional evidence may be cited in the reply
memorandum, and if cited, the court will disregard it.
(e) Citations of Supplemental Authority.
When pertinent and significant authorities come to the attention of a party after the party's
memorandum in support of or in opposition to a summary judgment motion has been filed,
or after oral argument but before decision, a party may promptly file a notice with the court
and serve a copy on all counsel, setting forth the citations. There must be a reference either
to the page of the memorandum or to a point argued orally to which the citations pertain, but
the notice must state, without argument, the reasons for the supplemental citations. Any
response must be made, filed promptly, and be similarly limited.
(f) Failure to Respond.
Failure to respond timely to a motion for summary judgment may result in the court's
granting the motion without further notice, provided the moving party has established that it
is entitled to judgment as a matter of law.
(g) Length of Memoranda and Filing Times.
(1) A motion for summary judgment and a memorandum in opposition must not exceed
10,000 words, or in the alternative, forty (40) pages. A reply brief cannot exceed 5,000
words, or in the alternative, twenty (20) pages. If the document exceeds the page limit, then
the party must certify compliance with the word-count limit. This limitation includes the
following items: introduction, relief sought, background, statement of undisputed material
facts, response to statement of undisputed material facts, statement of additional material
facts, argument, and conclusion. This limitation excludes the following items: face sheet,
table of contents, table of authorities, signature block, certificate of service, and appendix.
Motions to file an overlength brief are discouraged and will be granted only upon a showing
of good cause and exceptional circumstances, as set forth in DUCivR 7-1(e). Â
(2) Filing times and length of memoranda are governed by DUCivR 7-1.
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