Hamilton v. State of Utah et al
Filing
9
MEMORANDUM DECISION and ORDER REQUIRING SERVICE OF PROCESS.granting 8 Motion to reconsider. It is hereby ordered that: Plaintiffs motion for the Court to reconsider its dismissal is GRANTED. The Court's dismissal order is vacated and this case is reopened. USMS shall serve a completed summons, a copy of the complaint, and a copy of this Order upon the above listed defendant. See order for details. Signed by Judge Dee Benson on 06/29/2016. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TONY ALEXANDER HAMILTON,
Plaintiff,
MEMORANDUM DECISION & ORDER
REQUIRING SERVICE OF PROCESS
v.
DAVID J. ANGERHOFER et al.,
Defendants.
Case No. 2:15-CV-344 DB
District Judge Dee Benson
Plaintiff, Tony Alexander Hamilton, a Utah State Prison inmate, filed this pro se civil
rights suit,1 proceeding in forma pauperis.2 Considering Plaintiff’s motion3 that the Court
reconsider its dismissal order of December 1, 2015, the Court now vacates that order4 and
reopens the case.
Based on review of the Complaint,5 the Court concludes that official service of process is
warranted. 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 this Utah Department
of Corrections (UDOC) affiliate: David J. Angerhofer, contract attorney..
Once served, Defendant shall respond to the summons in one of the following ways:
(A) If Defendant wishes to assert the affirmative defense of Plaintiff's failure to exhaust
administrative remedies in a grievance process, Defendant must,
1
See 42 U.S.C.S. § 1983 (2016).
2
See 28 id. § 1915.
3
(Docket Entry # 8.)
4
(Docket Entry # 7.)
5
(Docket Entry # 3.)
(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 issue6; and,
(iii) within 120 days of filing an answer, file a separate summary judgment
motion, with a supporting memorandum.
(B) If Defendant chooses to challenge the bare allegations of the Complaint, Defendant
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 Defendant chooses not to rely on the defense of failure to exhaust and wish to
pierce the allegations of the Complaint, Defendant 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.
6
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 Defendant wishes to seek relief otherwise contemplated under the procedural rules
(e.g., requesting an evidentiary hearing), Defendant 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. All
requirements are important but the most significant here are in motion practice and sealed filings.
This Court will order the parties to refile summary-judgment motions which do not follow the
standards.7
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
Defendant moves 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 the Court to reconsider its dismissal order is GRANTED.8 The
Court’s dismissal order is VACATED.9 And this case is REOPENED.
(2) USMS shall serve a completed summons, a copy of the Complaint,10 and a copy of
this Order upon the above-listed defendant.
7
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).
8
(Docket Entry # 8.)
9
(Docket Entry # 7.)
(3) Within 20 days of being served, Defendant must file an answer or motion to dismiss,
as outlined above.
(4) If filing a Martinez report, Defendant must do so within 90 days of filing his/her
answer. Under this option, Defendant must then file a summary-judgment motion within 120
days of filing his/her answer.
(5) If served with a Martinez report, Plaintiff may submit 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, Defendant
must do so within 90 days of filing his/her answer.
DATED this 29th day of June, 2016.
BY THE COURT:
JUDGE DEE BENSON
United States District Court
10
(See Docket Entry # 3.)
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