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Jese v. Dennis

United States District Court, D. Utah

February 15, 2017

FRANK JESE, Plaintiff,
v.
TIM DENNIS et al., Defendants.

          MEMORANDUM DECISION & ORDER REQUIRING SERVICE OF PROCESS

         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;

         (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.

         (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 summary-judgment 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 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 ...


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