Jese v. Dennis

Filing 13

MEMORANDUM DECISION & ORDER REQUIRING SERVICE OF PROCESS. denying 6 Motion to Appoint Counsel. Signed by Judge Ted Stewart on 02/15/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
FRANK JESE,
Plaintiff,

MEMORANDUM DECISION & ORDER
REQUIRING SERVICE OF PROCESS

v.
TIM DENNIS et al.,

Case No. 2:16-CV-227 TS
Defendants.

District Judge Ted Stewart

Plaintiff, Frank Jese, an inmate at Central Utah Correctional Facility, filed this pro se
civil rights suit, 1 proceeding in forma pauperis. 2 Based on the Complaint review, 3 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 copy of Plaintiff's Complaint, along
with this Order, upon Utah Department of Corrections (UDOC) employee, Tim Dennis.
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,
(i) within 20 days of service, file an answer;

1

See 42 U.S.C.S. § 1983 (2017).

2

See 28 id. § 1915.

3

(Docket Entry # 5.)

(ii) within 90 days of filing an answer, prepare and file a Martinez report limited
to the exhaustion issue 4; 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.

4

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. 5
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 may not rest upon the mere allegations in the
complaint. Instead, as required by Federal Rule of Civil Procedure 56(e), to survive a summaryjudgment motion, Plaintiff must allege specific facts, admissible in evidence, showing that there
is a genuine issue remaining for trial.
MOTION TO APPOINT COUNSEL
The Court now addresses Plaintiff's motion for the Court to request pro bono counsel to
represent him. Plaintiff has no constitutional right to counsel. See Carper v. Deland, 54 F.3d
613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
However, the Court may in its discretion appoint counsel for indigent plaintiffs. See 28 U.S.C.S.
§ 1915(e)(1) (2017); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). "The burden is upon the applicant to convince the court that there is sufficient merit to

5

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).

his claim to warrant the appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838
(10th Cir. 1985).
When deciding whether to appoint counsel, the district court should consider a variety of
factors, "including 'the merits of the litigant's claims, the nature of the factual issues raised in the
claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by
the claims.'" Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926
F.2d at 996); accord McCarthy, 753 F.2d at 838-39. Considering the above factors, the Court
concludes here that, at this time, Plaintiff's claims may not be colorable, the issues in this case
are not complex, and Plaintiff is not at this time too incapacitated or unable to adequately
function in pursuing this matter. Thus, the Court denies for now Plaintiff's motion for appointed
counsel.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) USMS shall serve a completed summons, a copy of the Complaint, 6 and a copy of this
Order upon the above-listed defendant.
(2) Within 20 days of being served, Defendant must file an answer or motion to dismiss,
as outlined above.
(3) 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.
(4) If served with a Martinez report, Plaintiff may submit a response within 30 days of
the report’s filing date.

6

(See Docket Entry # 5.)

(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, Defendant
must do so within 90 days of filing his/her answer.
(8) Plaintiff's motion for appointed counsel is DENIED, (see Docket Entry # 6);
however, if, after the case develops further, it appears that counsel may be needed or of specific
help, the Court will ask an attorney to appear pro bono on Plaintiff's behalf.
DATED this 15th day of February, 2017.
BY THE COURT:

JUDGE TED STEWART
United States District Court