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Rudolph v. Hanson

United States District Court, D. Utah

January 5, 2017

HENRY LEE RUDOLPH, Plaintiff,
v.
TIMOTHY R. HANSON et al., Defendants.

          MEMORANDUM DECISION & ORDER REQUIRING SERVICE OF PROCESS

          CLARK WADDOUPS, UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff, Henry Lee Rudolph, a former Utah inmate, filed this pro se civil rights suit, [1]proceeding in forma pauperis.[2]

         Based on review of the Amended Complaint, in an order dated July 12, 2016, the Court concluded that official service of process was warranted on the defendants. The United States Marshals Service (USMS) was then directed to serve a properly issued summons and a copy of Plaintiff's Amended Complaint upon these defendants:

Timothy R. Hanson Karen Stam Charles Behrens Barbara Byrns Alex Huggard Katherine Bernards Goodman Erin Riley Michael Sibbett Keith Hamilton Jesse Gallegos Curtis Garner Jeremy Holt

         Based on that order, summonses were returned executed on Defendants Behrens, Huggard, Bernards Goodman, Riley and Garner. Behrens and Bernards Goodman filed a motion to dismiss together, (see Docket Entry # 35), to which Plaintiff responded, (see Docket Entry # 41). Huggard filed a separate motion to dismiss, (see Docket Entry # 18), to which Plaintiff responded, (see Docket Entry # 28). Riley filed a separate motion to dismiss, (see Docket Entry # 37), to which Plaintiff has not responded. And, Garner also filed a separate motion to dismiss, (see Docket Entry # 29), to which Plaintiff responded, (see Docket Entry # 33).

         Having obtained new addresses for each of the other defendants, the Court again orders service on Defendants Timothy Hanson, Karen Stam, Barbara Byrne, Michael Sibbett, Keith Hamilton, and Jesse Gallegos. 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 on Defendants Hanson, Stam, Byrne, Sibbett, Hamilton and Gallegos.

         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) within 20 days of service, file an answer;

(ii) within 90 days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue[3]; and,
(iii) within 120 days of filing an answer, file a separate summary judgment motion, with a supporting memorandum.

         (B) If Defendants choose to challenge the bare allegations of the Complaint, Defendants 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 Defendants choose not to rely on the defense of failure to exhaust and wish to pierce the allegations ...


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