Poe v. State of Utah et al
Filing
26
MEMORANDUM DECISION & ORDER DISMISSING SOME DFTS & CLAIMS & REQUIRING SERVICE OF PROCESS ON REMAINING DFTS AND CLAIMS: Denying 21 Motion to Apply Federal Civil Rule 83 to Utah State Civil Rule 65B writ of extraordinary relief. Den ying 22 Motion to Waive Fees. For failure to allege an affirmative link to a claim upon which relief may be granted, all claims against institutional defendants Utah Department of Corrections (UDOC) and UDOCs Division of Prison Operations, Correct ional Industries, Utah Health and Human Services, and Correctional Healthcare; and individual defendants Paul Blink, Andrea Michelle Bowles, Kevin James Crockett, Terry Jeffries, Caitlin Elizabeth Jensen, Raymond Gene Merrill, Edmund John Nowicki, Michelle Tsai are DISMISSED. (ECF No. 24.) See order for details. Signed by Judge David Barlow on 04/25/2024. (kpf)
THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
NICHOLAS SCOTT POE,
Plaintiff,
v.
MEMORANDUM DECISION & ORDER
DISMISSING SOME DEFENDANTS &
CLAIMS, & REQUIRING SERVICE
OF PROCESS ON REMAINING
DEFENDANTS AND CLAIMS
Case No. 2:23-cv-00921 DBB
STATE OF UTAH et al.,
District Judge David Barlow
Defendants.
Plaintiff, Nicholas Scott Poe, a Utah state inmate, filed this pro se civil-rights action, see
42 U.S.C.S. § 1983 (2024), proceeding in forma pauperis, see 28 id. § 1915. (ECF Nos. 1, 3–4.)
After screening Plaintiff’s initial complaint, (ECF No. 4), the Court ordered him to cure
its deficiencies, including the following: (a) failure to acknowledge the applicability of Eleventh
Amendment immunity regarding naming of defendants State of Utah, Utah State Correctional
Facility, Central Utah Correctional Facility, Utah Department of Health and Human Services,
Utah Board of Pardons and Parole, Utah Correctional Industries, and Utah Department of
Corrections; (b) naming of defendants on impermissible respondeat-superior theory; (c) improper
statement of claims of physical mistreatment, including inadequate medical care; (d) alleging
civil-rights violation based on denied grievances; (e) failure to affirmatively link specific civilrights violations to specific defendants; and (f) apparent failure to use legal help provided by his
institution. (ECF No. 11.) The Court gave specific guidance on these matters, along with other
details to help Plaintiff file a complaint with valid claims. (Id.) The Court also denied
preliminary injunctive relief because Plaintiff had “not specified adequate facts showing each of
the four elements necessary to obtain a preliminary injunctive order” (ECF Nos. 10, 11.)
Page 1 of 22
Plaintiff then filed an amended complaint, which the Court screened, ordering him to
cure its deficiencies, including the following: (a) again not recognizing applicability of Eleventh
Amendment immunity and respondeat-superior doctrine; (b) again not validly stating claim of
improper medical treatment, including misapplication of medical malpractice and negligence
here; (c) again not affirmatively linking specific civil-rights claims to specific defendants; (d)
improper assertions of claims under HIPAA, the False Claims Act, and Federal Tort Claims Act;
(e) insufficient mentions of many potential causes of action; and (f) again, failure to seek the
legal help his institution owes him. (ECF Nos. 12, 18.) Once more, detailed guidance was given
on how to improve the initial pleading. (ECF No. 18.) And, preliminary injunctive relief was
denied anew because Plaintiff had not “specified adequate facts showing each of the four
elements necessary to obtain a preliminary injunctive order.” (ECF Nos. 15, 18.)
Now, Plaintiff has filed a Second Amended Complaint (SAC), naming several of the
same defendants appearing in the complaint's first two iterations and adding many others. (ECF
No. 24.) He continues to allege inadequate medical treatment, including forced medication and
false diagnoses added to his Utah Department of Corrections' (UDOC) medical records, plus
excessive force and improper grievance management. (Id.) He also asks a third time for
preliminary injunctive relief. (ECF No. 25.)
Page 2 of 22
Having now thoroughly screened and liberally construed 1 the SAC, (ECF No. 24), under
its statutory review function, 2 the Court dismisses some claims and defendants and orders service
as to other claims and defendants. See 28 U.S.C.S. § 1915(d) (2024) (“The officers of the court
shall issue and serve all process, and perform all duties in such cases.”).
A. SUA SPONTE DISMISSALS FOR FAILURE TO STATE CLAIM
1. STANDARD OF REVIEW
Assessing a complaint for failure to state a claim upon which relief may be granted, this
Court takes all well-pleaded factual assertions as true and regards them in a light most
advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007). Dismissal is appropriate when--though the facts are viewed in the plaintiff’s favor-the plaintiff has not posed a “plausible” right to relief. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247–48 (10th Cir. 2008). “The
burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to
suggest’ that he or she is entitled to relief.” Robbins, 519 F.3d at 1247 (quoting Twombly, 550
1
Pro se pleadings are liberally construed, “applying a less stringent standard than is applicable to pleadings
filed by lawyers. Th[e] court, however, will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (citations omitted). This means that if this Court can reasonably read the pleadings “to state a valid claim
on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, it is not “the proper function of the
district court to assume the role of advocate for the pro se litigant.” Id.; see also Peterson v. Shanks, 149 F.3d 1140,
1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)).
2
The screening statute reads:
(a) Screening.—The court shall review . . . a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
28 U.S.C.S. § 1915A (2024).
Page 3 of 22
U.S. at 556). When a civil-rights complaint contains “bare assertions,” involving “nothing more
than a ‘formulaic recitation of the elements’ of a constitutional . . . claim,” the Court considers
those assertions “conclusory and not entitled to” an assumption of truth. Ashcroft v. Iqbal, 556
U.S. 662, 681 (2009) (quoting Twombly, 550 U.S. at 554–55). In other words, “the mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff
has a reasonable likelihood of mustering factual support for these claims.” Red Hawk, 493 F.3d
at 1177 (italics in original). Also, “[f]acts, not conclusions, must be pleaded—'the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions,’ including where a ‘legal conclusion [is] couched as a factual allegation.’” Renaud
v. Ross, No. 1:22-CV-212, 2023 U.S. Dist. LEXIS 19808, at *8 (D. Wy. Jan. 27, 2023)
(alteration in original) (quoting Ashcroft, 556 U.S. at 678).
As the Court reviews the sufficiency of Plaintiff’s allegations, it painstakingly does so per
individual defendant, per cause of action. See Williams v. Utah Dep’t of Corr., 928 F. 3d 1209,
1212 (10th Cir. 2019) (stating plaintiff must “explain[] which . . . prison-official defendants are
liable for what improper conduct”). Indeed, § 1983 cases often include a list of defendants, like
the government agency and a number of government actors sued in
their individual capacities. . . . [I]t is particularly important in such
circumstances that the complaint make clear exactly who is alleged
to have done what to whom, to provide each individual with fair
notice as to the basis of the claims against him or her, as
distinguished from collective allegations against the state.
Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249–50 (10th Cir. 2008)
(emphasis in original) (citing Twombly, 550 U.S. at 565 n.10). When a complaint “fails to isolate
the allegedly unconstitutional acts of each defendant,” the plaintiff has not carried the burden of
providing “adequate notice as to the nature of the claims against each.” Id. at 1250. For instance,
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when a complaint uses “the collective term ‘Defendants’ or a list of the defendants named
individually but with no distinction as to what acts are attributable to whom, it is impossible for
any of these individuals to ascertain what particular unconstitutional acts they are alleged to have
committed.” Id.
2. CLAIMS NAMING THE STATE OF UTAH AND ITS ENTITIES
The Court has twice notified Plaintiff of these tenets: Under the Eleventh
Amendment, sovereign immunity blocks actions for money damages against states and state
agencies. See Couser v. Gay, 959 F.3d 1018, 1022 (10th Cir. 2020); Tarrant Reg’l Water Dist. v.
Sevenoaks, 545 F.3d 906, 911 (10th Cir. 2008); see also Buck v. Utah Labor Comm’n, 73 F.
App’x 345, 347 (10th Cir. 2003) (holding Eleventh Amendment shields State of Utah and its
employees in official capacity from claims alleging violations of § 1983). However, an exception
provides “that ‘a plaintiff may bring suit against individual state officers acting in their official
capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks
prospective relief.’” Norton v. Parsons, No. 23-4055, 2024 U.S. App. LEXIS 2109, at *5 (10th
Cir. Jan. 31, 2024) (emphasis added) (unpublished) (quoting Muscogee (Creek) Nation v. Pruitt,
669 F.3d 1159, 1166 (10th Cir. 2012)).
Defendants UDOC and UDOC’s Division of Prison Operations, Correctional Industries,
Utah Health and Human Services, Correctional Healthcare are all state agencies--not individual
state officers against whom prospective relief is sought. They are therefore all dismissed based
on Eleventh Amendment immunity. (ECF No. 24.)
3. INVALID CAUSES OF ACTION
Plaintiff's SAC lists the following potential causes of action: 42 U.S.C.S. § 1985; “FCA,
FOIA, medical malpractice”; Violation of “State Law Title 77 Chapter 15”; “the 1st Step Act,
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False Claims Act, State laws title care for prisoners and the federal USC Title Imprisonment of a
Convicted Person”; medical malpractice; 4th Amendment “due to being naked in front of female
and intersex staff”; Fourteenth Amendment; “assault, slander, libel”; “fraud”; APA; RICO Act;
and Sixth Amendment. (Id. at 1, 6, 12, 14, 16.) However, as required by the principles in the
above “Standard of Review” section, Plaintiff does not set forth the elements of each of the
causes of action and affirmatively link them to specific named defendants. These potential causes
of action are all thus dismissed.
4. AFFIRMATIVE LINKS MISSING
In the Court’s earlier orders, (ECF Nos. 11, 18), requiring Plaintiff to cure deficiencies in
his complaints, Plaintiff was notified as follows:
[A] plaintiff who brings a constitutional claim under § 1983 can’t
obtain relief without first satisfying the personal-participation
requirement. That is, the plaintiff must demonstrate the defendant
“personally participated in the alleged constitutional violation” at
issue. Vasquez v. Davis, 882 F.3d 1270, 1275 (10th Cir. 2018).
Indeed, because § 1983 is a “vehicle[] for imposing personal
liability on government officials, we have stressed the need for
careful attention to particulars, especially in lawsuits involving
multiple defendants.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th
Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250
(10th Cir. 2008) (explaining that when plaintiff
brings § 1983 claims against multiple defendants, “it is particularly
important . . . that the complaint make clear exactly who is alleged
to have done what to whom”); Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 532-33 (10th Cir. 1998)) (holding that district
court’s analysis of plaintiff's § 1983 claims was “infirm” where
district court “lump[ed]” together plaintiff’s claims against
multiple defendants—“despite the fact that each of the defendants
had different powers and duties and took different actions with
respect to [plaintiff]”—and “wholly failed to identify specific
actions taken by particular defendants that could form the basis of
[a constitutional] claim”).
Estate of Roemer v. Johnson, 764 F. App’x 784, 790-91 (10th Cir. 2019).
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“A plaintiff’s failure to satisfy this requirement will trigger swift and certain dismissal.”
Id. at 790 n.5. Indeed, the Tenth Circuit has “gone so far as to suggest that failure to satisfy the
personal-participation requirement will not only justify dismissal for failure to state a claim; it
will render the plaintiff's claim frivolous.” Id.
The following allegations do not adequately allege affirmative links to named defendants
and are thus dismissed:
(a) “[D]uring force medications which dates from 6/15/2022 and every 2 weeks from that
day until 9/22/2022 when the Risperdal was discontinued due to [Plaintiff] lactating, the assaults
happened all but 2 injections. During force medications I was hit in the back of my head, had
their full upper body press down on my jaw, elbows shoved in my back, excessive exsting of
[Plaintiff's] rist which caused back, jaw, rist, and neck pains." [Sic] (ECF No. 24, at 5.)
(b) Defendants
Adam Binneboese MD; Raymond Gene Merrill PA; Caitlin
Elizabeth Jenson PA; Leslie Ann Forbush APRN; Terry Jeffries
APRN; Kevin James Crockett PA; Karly Nathan Kelson PA;
Darrell Olsen MD; Michelle Tsai NP; Edmund John Nowicki MD;
Thomas Nephi Jordon APRN; Andrea Michelle Bowles APRN; are
just some of the prison medical and mental health staff whom
refused me proper treatment for my asthma, chronic pain,
depression, anxiety, ADHD, psychostimulant dependence, late
effects of ATBI, etc. And fails to help with my NMS symptoms,
and correct and obtain my healthcare records. Most officers names
whom all were involved in assaulting me during multiple force
medications are unknown due to them refusing to release their
names. . . . They also refused to obey the law and prescribe me my
medically assisted treatment. Every appointment I have been to.
This is a typical RICO. I suffer with breathing problems and don't
receive any proper treatment as well as any correct medications.
They all failed on multiple occasions to obtain my healthcare
records.
(Id. at 7-8.) This passage from the SAC does not observe proper pleading requirements, set forth
in Robbins, 519 F.3d at 1249–50 (citing Twombly, 550 U.S. at 565 n.10), which states that, when
Page 7 of 22
a complaint “fails to isolate the allegedly unconstitutional acts of each defendant,” the plaintiff
has not carried the burden of providing “adequate notice as to the nature of the claims against
each.” Id. at 1250. For instance, when a complaint uses “the collective term ‘Defendants’ or a list
of the defendants named individually but with no distinction as to what acts are attributable to
whom, it is impossible for any of these individuals to ascertain what particular unconstitutional
acts they are alleged to have committed.” Id.
(c) “[Defendant Forbush’s] friends such as Andrea Michelle Bowles, APRN, and the rest
of the healthcare staff don’t care and is going to allow my life to be taken due to the force
medication as well as the sexual dysfunctions. No one will take me off the force medications
which would save my life.” (ECF No. 24, at 8.) These allegations also do not adequately and
specifically state who did what to whom. See Robbins, 519 F.3d at 1249–50 (citing Twombly,
550 U.S. at 565 n.10).
(d) Allegations of
[t]he suffering I go through is my asthma not being treated is
breathing problem. I suffer with NMS and the following side
effects from antipsychotic treatment constipation, dry mouth,
dizziness, worsen anxiety, heat strokes when I work out, blood
prolactin increased/lactation, muscle tightness, mobility decreased,
memory impairment, speech disorder, coordination abnormal,
aggression, loss of libido, delirium, anorgasmia, tics, homicidal
ideation, sleep movements, erectile dysfunction, breast pain, nasal
congestion, and rashes, some of these symptoms are part of the
NMS symptoms such as confusion, other NMS symptoms I have
are changes in my vital readings, fevers, sweating, muscle
tightness, and this is deadly. . . . I have been told that no one cares
about treating narcolepsy, epilepsy, depression, anxiety, DHD,
pain and other late effects of TBIs, as well as non resque inhailors
are resque inhailors [sic] for my asthma. They fail to give me the
proper secondary inhailor as well by stating they don't have to treat
this condition I have. I also have to be subjected to pain due to the
injections being painful. As well as subject to serious harm by not
receiving my medications.
Page 8 of 22
(ECF No. 24, at 9.)
(e) Allegations that
on 11/07/2023 or about I was forced on a mattress on the ground
and my clothes cut off. I was thrown in a smock and put on suicide
watch on false pretenses. I never complained about suicidal
thoughts nor had any suicidal actions. I was placed in a cell with
the light on 24/7 and no underwear and without a mattress,
bedding, shoes, toilet paper, hand soap, tooth brush/toothpaste,
which allows only 3 white sacks or sack lunches for breakfast
lunch and dinner. They also did not allow me to write, read, and
only lay there with the light on with a radio or in the hallway and
no rec or phone calls. . . . In a smock that when I layed [sic] down
my penis and testicles hung outside of it female and intersex
officers and healthcare staff were able to see it. . . . They never
allowed me to call someone at all or have rec time. I was only
given a jumpsuit on 11/15/2023 due to needing to see the BOPP. I
was on 2 white sacks with 1 hot tray for dinner. This is run by
Andrea Michelle Bowles APRN and Leslie Ann Forbush APRN.
(Id. at 10-11.)
(f) “The contract attorney refuses most request and takes months to see them if they
accept the request.” (Id. at 12.)
(g) “UDOC fails to provide me with the adequate food, clothing, and medical care, nor
re-ensured that I had the correct care or adequate covering from 11/07-11/15/2023 due to the fact
that a smock without underwear is too short to sleep in without being exposed. And 3 sack
lunches do not provide the adequate nutrition a person needs shown in the food groups and it's
proven the human needs 2.5 hot meals per day every week.” (Id. at 12-13.)
5. RESPONDEAT SUPERIOR
In its orders requiring Plaintiff to file amended complaints, Plaintiff was notified of the
law as follows: The Supreme Court holds that, in asserting a § 1983 claim against a government
agent in their individual capacity, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft
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v. Iqbal, 556 U.S. 662 676 (2009). Consequently, there is no respondeat-superior liability
under § 1983. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens
and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”); Bd. of Cty. Comm’rs v. Brown,
520 U.S. 397, 403 (1997). Entities may not be held liable on the sole ground of an employeremployee relationship with a claimed tortfeasor. See Monell v. Dep’t of Soc. Servs. of N.Y., 436
U.S. 658, 689 (1978). Supervisors are considered liable for their own unconstitutional or illegal
policies only, and not for employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299,
1307–08 (10th Cir. 1998).
Thus, the following allegations are dismissed: “Due to supervisors refusing to
acknowledge the wrongdoing of other employees of the agency this shows them being negligent.
They unlawfully sided with all their employees whom violate laws.” (ECF No. 24, at 11.)
6. VIOLATIONS OF UDOC POLICIES AND PROCEDURES
Plaintiff alleges that “the employees are getting away with violating the prison's own
policies and procedures.” (ECF No. 24, at 12.) But this allegation does not appear to recognize
failure to follow promises, jail policy, or ethics rules does not necessarily equal federal
constitutional violations. See, e.g., Williams v. Miller, 696 F. App’x 862, 870 (10th Cir.
2017) (“Merely showing that [defendants] may have violated prison policy is not enough [to
show a constitutional violation].” (citations omitted)); Porro v. Barnes, 624 F.3d 1322, 1329
(10th Cir. 2010) (stating plaintiff never sought “to explain how or why the violation of the . . .
[prison] policy . . . necessarily demonstrates” his constitutional rights were breached and “[i]t is
his burden to establish that the Constitution, not just a policy, is implicated” (emphasis in
original)); Hostetler v. Green, 323 F. App’x 653, 657-58 (10th Cir. 2009) (unpublished) (noting
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defendant’s mere violation of prison regulation does not equate to constitutional violation);
Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (“[A] failure to adhere to
administrative regulations does not equate to a constitutional violation.”). After all, “[p]rison
regulations are meant to guide correctional officials, not to confer rights on
inmates.” Farrakhan-Muhammad v. Oliver, 677 F. App’x 478, 479 (10th Cir. 2017)
(unpublished) (citing Sandin v. Conner, 515 U.S. 472, 481–82 (1995)); Cooper v. Jones, 372 F.
App'x 870, 872 (10th Cir. 2010) (unpublished) (“The process due here is measured by the Due
Process Clause of the United States Constitution, not the internal policies of the prison.”); Brown
v. Rios, 196 F. App’x 681, 683 (10th Cir. 2006) (unpublished) (“Where a liberty or property
interest has been infringed, the process which is due under the United States Constitution is that
measured by the due process clause, not prison regulations.” (citations omitted)).
This allegation is therefore dismissed.
B. CLAIMS WARRANTING SERVICE OF PROCESS
The Court concludes that, against Defendants Adam Binneboese ( cruel-and-unusualpunishment violations for refusing treatment for TBI and lack of inhaler); Leslie Ann Forbush
(due-process and cruel-and-unusual-punishment violations regarding improper forced medication
and altering healthcare records); Thomas Nephi Jordan (cruel-and-unusual-punishment
violation(s) for denied medications); Karl Nathan Kelson (cruel-and-unusual-punishment
violation(s) for denied medications); Skyler Monson (due process and cruel-and-unusualpunishment violations regarding improper forced medication); Darrell Olsen (cruel-and-unusualpunishment violation(s) for denied medications); Michael Robinson (cruel-and-unusual
punishment violation(s) regarding putting false information on Plaintiff's health records); Ken
Roundy (due-process and cruel-and-unusual-punishment violations regarding improper forced
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medication), and Charlotte Wray (due-process and cruel-and-unusual-punishment violations
regarding improper forced medication), Plaintiff appears to have stated a claim for pleading
purposes. (ECF No. 24.) Under Federal Rule of Civil Procedure 4(c)(1), the Court therefore
requests waiver of service from Defendants Binneboese, Forbush, Jordan, Kelson, Monson,
Olsen, Robinson, Roundy, and Wray, who must answer Plaintiff’s allegations of federal
constitutional violations, only as indicated in the parentheticals above next to each defendant’s
name.
C. ORDER
Based on the Court's screening of the final iteration of the complaint--the Second
Amended Complaint--IT IS ORDERED as follows:
(1) For failure to allege an affirmative link to a claim upon which relief may be granted,
all claims against institutional defendants Utah Department of Corrections (UDOC) and UDOC’s
Division of Prison Operations, Correctional Industries, Utah Health and Human Services, and
Correctional Healthcare; and individual defendants Paul Blink, Andrea Michelle Bowles, Kevin
James Crockett, Terry Jeffries, Caitlin Elizabeth Jensen, Raymond Gene Merrill, Edmund John
Nowicki, Michelle Tsai are DISMISSED. (ECF No. 24.)
(2) For failure to set forth elements of causes of action and affirmatively link them to any
defendants, these potential claims are DISMISSED: 42 U.S.C.S. § 1985; “FCA, FOIA, medical
malpractice”; Violation of “State Law Title 77 Chapter 15”; “the 1st Step Act, False Claims Act,
State laws title care for prisoners and the federal USC Title Imprisonment of a Convicted
Person”; medical malpractice; 4th Amendment “due to being naked in front of female and
intersex staff”; Fourteenth Amendment; “assault, slander, libel”; “fraud”; APA; RICO Act; and
Sixth Amendment. (ECF No. 24, at 1, 6, 12, 14, 16.)
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(3) For failure to set forth elements of causes of action and affirmatively link them to any
defendants, the many allegations found in above sections three through six, under heading “A,”
are DISMISSED.
(4) Under Federal Rule of Civil Procedure 4(c)(1), the Court requests waiver of service
from Defendants Binneboese, Forbush, Jordan, Kelson, Monson, Olsen, Robinson, Roundy, and
Wray.
(5) As to the nine remaining defendants, the Clerk of Court shall mail:
(a) Notice of a Lawsuit and Request to Waive Service of a Summons, AO form
398; 2 copies of Waiver of the Service of Summons, AO form 399; and copy of
the Second Amended Complaint, (ECF No. 24), and this Order to: Utah
Department of Corrections, Att’n: Correctional Program Coordinator--3rd
Floor DPO Suite, 14717 South Minuteman Drive, Draper, Utah 84020.
(b) Copies of Complaint and this Order to Utah Attorney General’s Office,
Att’n: Litigation Division, Prisoner Litigation Unit, 160 East 300 South, Sixth
Floor, P.O. Box 140856, Salt Lake City, Utah 84114-0856.
(6) Defendants are cautioned that Federal Rule of Civil Procedure 4 requires Defendants
to cooperate in saving unnecessary costs of service of summons and complaint. Under Rule 4, if
Defendants do not waive summons service, after being asked by the Court to do so on Plaintiff’s
behalf, Defendants must bear service costs unless good cause be shown for not signing and
returning the waiver form. If service is waived, this action will proceed as if Defendants had
been served on the day the waiver is filed, except that Defendants need not file an answer
until 60 days from the date when the waiver request was sent. See Fed. R. Civ. P. 4(d)(3). (This
allows more days to respond than would be required if formal summons service is necessary.)
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Defendants must read the statement at the waiver form’s end that more completely describes the
party’s duties about waiver. If service is waived after the deadline given in the Notice of a
Lawsuit and Request to Waive Service of a Summons but before Defendants have been
personally served, the Answer shall be due 60 days from the date on which the request for
waiver was sent or 20 days from the date the waiver form is filed, whichever is later.
(7) If Defendants do not execute waivers, attorney(s) for Defendants must file a notice
listing reasons a waiver has not been given. A report is due 30 days from the date a request was
sent.
(8) Defendants shall answer the Second Amended Complaint, observing Federal Rules of
Civil Procedure and the following litigation schedule:
(a) If Defendant asserts the affirmative defense of Plaintiff’s failure to exhaust
administrative remedies in a grievance process, Defendant must,
(i) within 60 days of date of waiver request, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report 3
limited to the exhaustion issue; and,
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.
3
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(iii) within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
(b) If Defendants challenge the complaint’s bare allegations, Defendants shall,
within 60 days of date of waiver request, file a motion to dismiss based on
Federal Rule of Civil Procedure 12(b)(6).
(c) If Defendants choose not to rely on an exhaustion defense and want to pierce
the complaint’s allegations, Defendants must,
(i) within 60 days of date of waiver request, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report
addressing the complaint’s substance; and,
(iii) within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
(d) If Defendants want to seek relief otherwise contemplated under procedural
rules, Defendants must file an appropriate motion within 90 days of filing an
answer.
(9) Plaintiff must, within 30 days of its filing, respond to the Martinez report. Plaintiff
should keep in mind that Martinez reports may “be used for their truth against a plaintiff if the
plaintiff has been warned that failing to respond to the Martinez report could lead to that result.”
Ortiz v. Torgensen, 857 F. App'x 419, 426-27 (10th Cir. 2021) (unpublished).
(10) Plaintiff must, within 30 days of its filing, respond to a motion to dismiss or
summary-judgment motion. For Plaintiff’s information and convenience, the Court has again
attached the procedural rules governing summary-judgment practice.
Page 15 of 22
(11) Defendants shall file a reply brief within 14 days after the date Plaintiff’s opposition
is filed.
(12) Any evidence filed to support the parties’ summary-judgment positions must be
reviewed by the parties to ensure that (a) only relevant evidence is submitted (for instance, if
filing medical records, ensure that only medical records applicable to the exact claims at issue
are filed); and (b) the numbering on the pages of all evidentiary submissions is clear on each
page of each document and matches up to any references in citations to those documents in any
summary-judgment motion, response, and reply. If evidentiary documents do not comply with
this requirement, the summary-judgment motion, response, or reply, will be struck from the
docket, subject to refiling with compliant evidentiary documents.
(13) A motion to dismiss or for summary judgment shall be deemed submitted as of the
date the reply brief is due. No hearing will be held on a motion unless the Court so orders at a
later date.
(14) Plaintiff’s motion for the Court to “apply Federal Civil Rule 83 to Utah State Civil
Rule 65B writ of extraordinary relief” is DENIED. (ECF No. 21.) Rule 65B is not applicable in
this federal action. Also, the other relief Plaintiff discusses in this motion are the same types of
things he discusses in the SAC and motion for preliminary injunctive relief, both of which this
Order addresses, including requirements for remaining defendants to respond.
(15) Plaintiff’s Motion to Waive Fees is DENIED. (ECF No. 22.) Plaintiff’s motion to
proceed without prepaying the court filing fee has already been granted and his initial partial
filing fee paid. (ECF Nos. 3, 23.) Plaintiff continues to be subject to mandatory federal law, as he
signed in agreement to the following:
I understand that, so long as there is a remaining unpaid balance on
my $350 filing fee, I am required by statute “to make monthly
Page 16 of 22
payments of 20 percent of the preceding month's income credited
to [my inmate] account.” 28 U.S.C.S. § 1915(b) (2023). I therefore
consent for the inmate-account office “to forward payments from
[my] account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.” Id. The inmateaccount office shall forward any payments to the Clerk’s Office,
United States District Court for the District of Utah, 351 S. West
Temple, Rm. 1.100, Salt Lake City, UT 84101.
(ECF No. 1, at 4.)
(16) At the same time as Defendant Forbush files an answer, Defendant Forbush must
respond to Plaintiff’s motion for preliminary injunctive relief. (ECF No. 25 (“[O]nly Leslie Ann
Forbush APRN can stop the force medication.”).)
DATED this 25th day of April, 2024.
BY THE COURT:
JUDGE DAVID BARLOW
United States District Court
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Fed Rule of Civil Procedure 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:
(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
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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.
DISTRICT OF UTAH LOCAL CIVIL RULE 56-1
SUMMARY JUDGMENT MOTIONS AND MEMORANDA
(a) Compliance with DUCivR 7-1.
A motion for summary judgment, response, and reply must comply with DUCivR 7-1 in addition to the
requirements in this rule.
(b) Motion.
If a party files more than 1 summary judgment motion at the same time, the court may strike the motions
and require that the motions be consolidated into a single motion. A motion for summary judgment must
be titled “Motion for Summary Judgment,” be supported by an Appendix of Evidence, as described in 561(e), and include the following sections:
(1) Introduction and Relief Requested. A concise statement of each claim or defense for which
summary judgment is sought and a clear statement of the relief requested.
(2) Background (Optional). An optional section to provide context for the case, dispute, and
motion. If included, this section should be placed between the Introduction and Relief Requested and the
Statement of Undisputed Material Facts. The Background 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 facts necessary to decide the motion
should be included in this section. The moving party must cite with particularity the evidence in the
Appendix that supports each factual assertion.
(4) Argument. An explanation for each claim or defense, establishing, under the applicable
supporting authority, why the moving party is entitled to judgment as a matter of law. The argument
section should include a statement of each claim or defense on which the party is seeking summary
judgment and supporting authorities. Any factual references must cite to the Appendix.
(c) Response.
A response to a motion for summary judgment may be accompanied by an Appendix of Evidence, if
applicable, and must include the following sections.
(1) Introduction. A concise statement explaining why summary judgment should be denied.
(2) Background (Optional). An optional section to provide context for the case, dispute, and
motion. If included, this section should be placed between the Introduction and the Response to Statement
of Undisputed Material Facts. The Background need not be limited to undisputed facts and need not cite
to evidentiary support.
(3) Response to Statement of Undisputed Material Facts. A party must restate only those specific
facts the opposing party contends are genuinely disputed or immaterial, providing a concise statement
explaining why the fact is disputed or immaterial, and cite to the evidence used to refute the fact. The
responding party should not restate undisputed facts. If a fact is inadmissible, the responding party must
object, as provided in DUCivR 7-1(b), rather than move to strike the inadmissible fact. Factual citations
must reference the appropriate Appendix.
(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, the party must state each additional fact and cite
with particularity to the Appendix that contains the supporting evidence. Do not include duplicate copies
of evidence already in the record. Instead, the party must cite to evidence in a previously filed Appendix.
(5) Argument. An explanation for each claim or defense, establishing, under the applicable
supporting authority, why summary judgment should be denied. Any factual citations must cite to the
appropriate Appendix.
(d) Reply.
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The moving party may file a reply. In the reply, a party may cite to evidence that was not previously cited
only to rebut a claim that a material fact is in dispute. Otherwise, a reply may not contain additional
evidence, and, if it does, the court may disregard it.
(e) Appendix of Evidence.
(1) All evidence cited in a motion, response, or reply must be compiled in an appendix. Do not
include duplicate copies of evidence already in the record. Instead, the party must cite to evidence in a
previously filed Appendix.
(2) The Appendix must include:
(A) a captioned, cover-page index that—
(i) lists each exhibit by number;
(ii) includes a description or title of the exhibit; and
(iii) identifies the source of the exhibit;
(B) complete copies of all exhibits, including deposition transcripts. For lengthy
deposition transcripts, the party may submit the relevant pages of the deposition and the 4 pages before
and 4 pages after the sections cited. Manuscript transcripts are permitted, unless otherwise ordered by the
court.
(f) Failure to Respond. If a party fails to timely respond, the court may grant the motion without further
notice if the moving party has established that it is entitled to judgment as a matter of law.
DISTRICT OF UTAH LOCAL CIVIL RULE 7-1
MOTIONS AND MEMORANDA
(a) Motion, Response, and Reply.
(1) Motion and Memorandum. Except as otherwise allowed by this rule, a motion and
memorandum must be contained in the same document and include the following:
(A) an initial separate section stating succinctly the specific relief sought and the grounds
for the relief; and
(B) a recitation of relevant facts, supporting authority, and argument.
(2) Exception to the Requirement to Include Facts and Supporting Authority. The requirement to
include facts and supporting authority under section 7-1(a)(1)(B) does not apply to the following motions:
(A) to extend time for the performance of an act, whether required or permitted, if the
motion is made before the current deadline expires;
(B) to continue a hearing or other court proceeding;
(C) to appoint a next friend or guardian ad litem;
(D) to substitute a party;
(E) for a settlement conference;
(F) for referral to or withdrawal from the court’s ADR program; and
(G) for approval of a stipulation between the parties.
(3) No Motion Within a Response or Reply. A party may not make a motion, including a motion
under Fed. R. Civ. P. 56(d), or a cross-motion in a response or reply. Any motion must be separately
filed. A cross-motion may incorporate by reference the arguments contained in a response, if applicable.
(4) Page and Word Limits and Filing Times. Unless the court orders otherwise or the parties
stipulate to shorter requirements, the following apply:
(A) Motions Filed Under Fed. R. Civ. P. 12(b), 12(c), or 23(c).
(i) A motion or a response may not exceed 25 pages or 7,750 words.
(ii) A reply may not exceed 10 pages or 3,100 words.
(iii) A response to a motion must be filed within 28 days after service of the
motion.
(iv) A reply may be filed within 14 days after service of the response.
(B) Motions Filed Under Fed. R. Civ. P. 56(a).
(i) A motion or a response may not exceed 40 pages or 12,400 words.
Page 20 of 22
motion.
motion.
3,100 words.
motion.
(ii) A reply may not exceed 20 pages or 6,200 words.
(iii) A response to a motion must be filed within 28 days after service of the
(iv) A reply may be filed within 14 days after service of the response.
(C) Motions Filed Under Fed. R. Civ. P. 65.
(i) A motion or a response may not exceed 25 pages or 7,750 words.
(ii) A reply may not exceed 10 pages or 3,100 words.
(iii) A response to a motion must be filed within 14 days after service of the
(iv) A reply may be filed within 14 days after service of the response.
(D) All Other Motions.
(i) A motion, response, or reply not specified above may not exceed 10 pages or
(ii) A response to a motion must be filed within 14 days after service of the
(iii) A reply may be filed within 14 days after service of the response.
(5) Stipulation to Extend Filing Time. Parties seeking to extend the filing time for a response or
reply must file a stipulated motion before the filing time has passed. A stipulation to extend a filing time
is ineffective without a court order.
(6) Sections Applicable to Page or Word Limits and Certification Requirement.
(A) All headings, citations, quotations, and footnotes count toward the page or word
limit.
(B) The caption, face sheet, table of contents, table of authorities, signature block,
certificate of service, and exhibits do not count toward the page or word limit.
(C) When a document exceeds the page limit, a party must certify at the end of the
document that the document complies with the word limit (e.g., “I, [attorney’s name], certify that this
[name of document] contains [number of words] words and complies with DUCivR 7-1(a)(4).”).
(7) Overlength Motion, Response, or Reply.
(A) Unless modified by the assigned judge in a court order or on their “practices and
procedures” page on the court website, a party must first obtain a court order authorizing the additional
pages or words before filing a motion, response, or reply that exceeds the page or word limits in section
7-1(a)(4). The motion must be filed, and the order obtained, before filing the overlength motion, response,
or reply. The motion to exceed the page or word limit must include:
(i) the number of additional pages or words that are needed; and
(ii) a statement of good cause why additional pages or words are needed. (B) An
overlength motion, response, or reply must contain a table of contents.
(8) Motion Seeking Relief Similar to Another Party’s Motion. Each party seeking relief from the
court must file a motion that identifies the relief sought and grounds for the requested relief. A party may
incorporate by reference another party’s arguments in the party’s own motion, if applicable, but filing a
“Notice of Joinder” is improper.
(9) Additional Memoranda. Unless otherwise ordered, the court will not consider additional
memoranda.
(b) Motion to Strike Evidence Improper; Evidentiary Objections Permitted.
(1) A motion to strike evidence offered in another party’s motion, response, or reply is improper.
(2) If evidence is offered in a motion or a response, the response or reply may include an
objection to the evidence. In exceptional circumstances, the objection may be filed as a separate
document simultaneously with the response or reply.
(3) If new evidence is offered in a reply, an evidentiary objection must be filed within 7 days after
service of the reply.
(4) A party may file a response to an evidentiary objection at the same time any response or reply
is due or no later than 7 days after the objection was filed, whichever is later.
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(c) Supplemental Authority.
When pertinent and significant authority comes to the attention of a party before the court has entered a
decision on a motion, the party may file a Notice of Supplemental Authority, which may not exceed 2
pages.
(1) The notice must contain, without argument, the following:
(A) a reference either to the page of the memorandum or to a point argued orally to which
the supplemental authority pertains; and
(B) the reasons why the supplemental authority is relevant.
(2) The court may decide a motion without waiting for a response to the notice. If the court has
not ruled on the motion, a party may file a response, which may not exceed 2 pages, within 7 days after
service of the notice.
(d) Supporting Exhibits.
When evidence is cited in a motion, response, or reply, the relevant portions of the evidence must be
attached or filed separately and contemporaneously with the document.
(e) Proposed Orders.
(1) When Required. A party must provide a proposed order when filing a motion under section 71(a)(2) of this rule or when the court orders otherwise.
(2) Filing Procedures. To file a proposed order, a party must:
(A) attach it as an exhibit to the motion; and
(B) email an editable copy of the proposed order, copied to other parties or their
counsel—
(i) for motions filed under DUCivR 77-2, to utdecf_clerk@utd.uscourts.gov; and
(ii) for all other motions, to the assigned judge’s chambers.
(f) Failure to Respond.
Except as provided in DUCivR 56-1(f), failure to respond timely to a motion may result in the court
granting the motion without further notice.
(g) Oral Arguments on Motions.
The court may set any motion for oral argument. Otherwise, a party may request oral argument on a
motion and must show good cause. If oral argument is not set, the court will determine a motion based
upon the parties’ written memoranda.
(h) Summary Judgment.
This rule and DUCivR 56-1 apply to motions for summary judgment and related memoranda.
(i) Courtesy Copies.
The court may require a party to provide courtesy copies as described in the court’s ECF Procedures
Manual and on the Judge Information section of the court’s website.
(j) Sanctions.
Failure to comply with the requirements of this rule may result in the court imposing sanctions, including:
(1) returning the document for resubmission in accord with the rule;
(2) denial of the motion; or
(3) any other sanction the court deems appropriate.
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