Garman v. Salt Lake County Jail Medical Staff

Filing 22

MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF PROCESS & DISPOSITIVE MOTION: denying 17 Motion for a court requiring Salt Lake County to turn over all his medical records; denying 20 Motion to Appoint Counsel. It is hereby ordered that: The USMS shall serve a completed summons, a copy of this Order upon the listed defendants. 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

JOHN PAUL GARMAN,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
DIRECTING SERVICE OF PROCESS &
DISPOSITIVE MOTION
Case No. 2:16-CV-99 TS

FNU COLBY et al.,

District Judge Ted Stewart

Defendants.

Plaintiff, John Paul Garman, an inmate at Utah State Prison, filed this pro se civil rights
suit. See 42 U.S.C.S. § 1983 (2018). Plaintiff was allowed to proceed in forma pauperis. See 28
id. § 1915.
Based on its review of the Amended Complaint, (see Docket Entry # 21), 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 Amended
Complaint, along with this Order, upon the following Salt Lake County defendants:
Doctor or Nurse "Colby ID#/IS# HY4 10-21-13/1/9/2014"
Doctor or Nurse "ID#/IS# QTZ 10-21-13/10/30/13"
Doctor or Nurse "ID#/IS# GR2 1/22/14"
"Nurse ID#/IS# JF3 10/19/13"
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) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare and file a Martinez report
limited to the exhaustion issue1;
(iii) within ninety days of filing an answer, file a separate summary-judgment
motion, with a supporting memorandum; and
(iv) within ninety days of filing an answer, submit a proposed order for dismissing
the case based upon Plaintiff's failure to exhaust, in word processing format to:
[e-mail].
(B) If Defendants choose to challenge the bare allegations of the complaint, Defendants
shall, within twenty days of service, file a motion to dismiss based on Federal Rule of
Civil Procedure 12(b)(6), and submit a proposed order for dismissing the case, in word
processing format, to: [e-mail].
(C) If Defendants choose not to rely on the defense of failure to exhaust and wishes to
pierce the allegations of the complaint, Defendants must,
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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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(i) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare and file a Martinez report
addressing the substance of the complaint;
(iii) within ninety days of filing an answer, file a separate summary-judgment
motion, with a supporting memorandum; and
(iv) within ninety days of filing an answer, submit a proposed order for dismissing
the case based upon the summary-judgment motion, in word processing format,
to: [e-mail].
The parties shall take note that local rules governing civil cases are in effect.
Plaintiff is notified that, if Defendants move for summary judgment, Plaintiff may not
rest upon the mere allegations in the ccmplaint. 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. Fed. R. Civ. P.
56(e)(2).
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) The USMS shall serve a completed summons, a copy of the Amended Complaint, (see
Docket Entry # 21), and a copy of this Order upon the above-listed defendants.
(2) Within twenty days of being served, Defendants must file an answer or motion to
dismiss and proposed order, as outlined above.

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(3) If filing (on exhaustion or any other basis) a Martinez report with a summaryjudgment motion and proposed order, Defendants must do so within ninety days of filing an
answer.
(4) If served with a Martinez report and a summary-judgment motion or motion to
dismiss, Plaintiff must file a response within thirty days. For Plaintiff’s information and
convenience, the Court has attached the procedural rules governing summary-judgment practice.
(5) Summary-judgment motion deadline is ninety days from filing of answer.
(6) Plaintiff's motion for a court order requiring Salt Lake County to turn over all his
medical records is DENIED. (Docket Entry # 17.) Motions for discovery are premature at this
time when the Amended Complaint is just being served.
(7) Plaintiff’s renewed motion for appointed counsel is DENIED, (see Docket Entry #
20), for the same reasons the Court used in denying Plaintiff’s initial motion for appointed
counsel, (see id. # 5).
DATED this 9th day of February, 2018.
BY THE COURT:
______________________________
JUDGE TED STEWART
United States District Court

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Federal Rules of Civil Procedure
(Current through changes received January 18, 2018)
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.
(c) Procedures.
(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.
(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.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider
other materials in the record.
(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:
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(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(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:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond,
the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(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.

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United States District Court for the District of Utah
Rules of Practice
(December 1, 2017)

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 assertion.
(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.

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(5) Appendix of Evidence: All evidence offered in support of the motion must be submitted in an
attached appendix. The appendix should be proceeded 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
deposition transcript pages(s), for a total of at least nine (9) 7.
(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
responses.

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(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 document.
(d) Reply.
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).
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