Opinion
2:20-CV-14 DAK
07-07-2022
JAMES SCOTT, Plaintiff, v. DAVID ANGERHOFER et al., Defendants.
MEMORANDUM DECISION & ORDER REGARDING SERVICE OF PROCESS
DALE A. KIMBALL, JUDGE UNITED STATES DISTRICT COURT
Plaintiff, James Scott, a Utah state inmate, filed this pro se civil-rights complaint, see 42 U.S.C.S. § 1983 (2022).
Based on review of the Third Amended Complaint, (ECF No. 25), the Court concludes that official service of process is warranted. See 28 U.S.C.S. § 1915(d) (2022) (“The officers of the court shall issue and serve all process, and perform all duties in such cases.”). Under Federal Rule of Civil Procedure 4(c)(1), the Court requests waiver of service from Utah Department of Corrections defendant Laura Cook.
IT IS ORDERED that:
(1) 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 Third Amended Complaint, (ECF No. 25), 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.
(2) Defendant is cautioned that Federal Rule of Civil Procedure 4 requires Defendant to cooperate in saving unnecessary costs of service of summons and complaint. Under Rule 4, if Defendant fails to waive service of summons, after being asked by the Court to do so on Plaintiff's behalf, Defendant must bear cost of service unless good cause be shown for failing to sign and return the waiver form. If service is waived, this action will proceed as if Defendant had been served on the day the waiver is filed, except that Defendant need not file an answer until 60 days from the date on which the waiver request was sent. See Fed.R.Civ.P. 4(d)(3). (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendant must read the statement at the waiver form's bottom 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 Defendant has 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.
(3) If Defendant does not execute the waiver, attorneys for Defendant must file a notice listing the reasons a waiver has not been provided. The report is due 30 days from the date the Request was sent.
(4) Defendant shall answer the complaint, observing the 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 limited to the exhaustion issue; and,
(iii) within 120 days of filing an answer, file a separate summary judgment motion, with supporting memorandum.
(b) If Defendant challenges the complaint's bare allegations, Defendant 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 Defendant chooses not to rely on an exhaustion defense and wants to pierce the complaint's allegations, 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 addressing the complaint's substance; and,
(iii) within 120 days of filing an answer, file a separate summary judgment motion, with supporting memorandum.
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 wants to seek relief otherwise contemplated under procedural rules, Defendant must file an appropriate motion within 90 days of filing an answer.
(5) Plaintiff may, within 30 days of its filing, respond to Martinez report if desired.
(6) Plaintiff must, within 30 days of its filing, respond to motion to dismiss or summaryjudgment motion. For Plaintiff's information and convenience, the Court has attached the procedural rules governing summary-judgment practice.
(7) Defendant shall file a reply brief within 14 days after the date Plaintiff's opposition is filed. (8) 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. (9) Plaintiff must tell the Court of any address change and timely comply with Court orders. See D. Utah Civ. R. 83-1.3(e) ("In all cases, counsel and parties appearing pro se must notify the clerk's office immediately of any change in address, email address, or telephone number."). Failure to do so may result in this action's dismissal for failure to prosecute. See Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.”).
(10) Extensions of time are disfavored, though reasonable extensions may be granted. Any motion for time extension must be filed no later than 14 days before the deadline to be extended.
(11) No direct communication is to take place with any judge. All relevant information, letters, documents, and papers, labeled with case number, are to be directed to the Clerk of Court.