Bacon v. Werner et al

Filing 22

MEMORANDUM DECISION and ORDER DISMISSING DEFENDANT & SERVICE ON REMAINING DEFENDANTS: granting 20 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 Sean Werner, Cody Wilkes, Steven Wozab. It is hereby ordered that: Defendant Salt Lake City Police Department is DISMISSED. See order for details. Signed by Judge Clark Waddoups on 02/21/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MICHAEL A. BACON,

v.

MEMORANDUM DECISION & ORDER
DISMISSING DEFENDANT &
ORDERING SERVICE ON
REMAINING DEFENDANTS

SEAN WERNER et al.,

Case No. 2:15-CV-178-CW

Plaintiff,

Defendants.

District Judge Clark Waddoups

Plaintiff/inmate, Michael A. Bacon, filed a pro se civil rights case, see 42 U.S.C.S. §
1983 (2017), proceeding in forma pauperis, see 28 id. 1915. The Court now screens his
Amended Complaint, under the standard that any claims in a complaint filed in forma pauperis
must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may
be granted. See id. §§ 1915-1915A.
DISMISSAL ORDER ON DEFENDANT SLCPD
Plaintiff names as defendants Salt Lake City Police Department (SLCPD) and its
employees, Sean Werner, Cody Wilkes, and Steven Wozab. He alleges that Defendants used
excessive force and fabricated evidence against him. The Court dismisses SLCPD, as a
governmental subdivision that has neither the right to sue nor be sued.
ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS
The Court concludes that official service of process is warranted on the remaining
defendants. The United States Marshals Service (USMS) is directed to serve a properly issued
summons and a copy of Plaintiff's Amended Complaint, (see Docket Entry # 19), along with this

Order, upon the following Salt Lake City defendants: Sean Werner, Cody Wilkes, and Steven
Wozab.
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,
(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).

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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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(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
(e.g., requesting an evidentiary hearing), 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.
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 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) Defendant Salt Lake City Police Department is DISMISSED.

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(2) Plaintiff’s motion for service of process is GRANTED. (See Docket Entry # 20.) The
USMS shall serve a completed summons, a copy of the Amended Complaint, (see Docket Entry
# 19), and a copy of this Order upon the above-listed remaining defendants—Sean Werner,
Cody Wilkes, and Steven Wozab.
(3) Within twenty days of service, Defendants must file answer(s) or motion to dismiss,
as outlined above.
(4) 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.
(5) If served with a Martinez report, Plaintiff may file a response within 30 days of the
report’s filing date.
(6) 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.
(7) Summary-judgment motion deadline is 120 days from filing of answer.
(8) If requesting relief otherwise contemplated under the procedural rules, Defendants
must do so within 90 days of filing their answer.
DATED this 21st day of February, 2017.
BY THE COURT:

JUDGE CLARK WADDOUPS
United States District Court

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