Marquez-Duran v. Salt Lake County Jail

Filing 20

MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF PROCESS AND DISPOSITIVE MOTION. The USMS shall serve a completed summons, a copy of the Amended Complaint and copy of this Order upon Sgt. Colbert, Deputy B. Shupe, and Deputy Mcirt. Wi thin twenty days of being served, Dfts must file an answer or motion to dismiss and proposed order, as outlined. If filing a Martinez report with a summary judgment motion and proposed order, dfts must do so within ninety days of filing an answer. See order for details. Signed by Judge Clark Waddoups on 10/24/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

RAMIRO MARQUEZ DURAN,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
DIRECTING SERVICE OF PROCESS &
DISPOSITIVE MOTION
Case No. 2:16-CV-805 CW

SGT. COLBERT et al.,

District Judge Clark Waddoups

Defendants.

Plaintiff, Ramiro Marquez Duran, a former inmate at Salt Lake County Jail, filed this pro
se civil rights suit. See 42 U.S.C.S. § 1983 (2017). Plaintiff was allowed to proceed in forma
pauperis. See 28 id. § 1915.
Based on its review of the Amended Complaint, (see Docket Entry # 18), 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: Sgt.
Colbert, Deputy B. Shupe, and Deputy Mcirt.
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,
1

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. See e.g., 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 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.2

2

When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading;
rather, its response must--by affidavits or as otherwise provided in this rule--set
out specific facts showing a genuine issue for trial. If the opposing party does
not so respond, summary judgment, should, if appropriate, be entered against
that party.
Fed. R. Civ. P. 56(e)(2).

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ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) The USMS shall serve a completed summons, a copy of the Amended Complaint, (see
Docket Entry # 18), and a copy of this Order upon the above-listed defendants;
(3) within twenty days of being served, Defendants must file an answer or motion to
dismiss and proposed order, as outlined above;
(4) 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;
(5) if served with a Martinez report and a summary-judgment motion or motion to
dismiss, Plaintiff must file a response within thirty days; and,
(6) summary-judgment motion deadline is ninety days from filing of answer.
DATED this 24th day of October, 2017.
BY THE COURT:

______________________________
Clark Waddoups
United States District Judge

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