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Atkinson v. Burnham

United States District Court, D. Utah

September 20, 2017

DENNIS ATKINSON, Plaintiff,
v.
DR. BRUCE BURNHAM et al., Defendants.

          MEMORANDUM DECISION & ORDER REQUIRING SERVICE OF PROCESS

          JUDGE DEE BENSON, United States District Court

         District Judge Dee Benson Plaintiff, Dennis Atkinson, a Utah State Prison inmate, filed this pro se civil rights suit, [1]proceeding in forma pauperis.[2] Based on review of the Complaint, [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 a copy of Plaintiff's Complaint, along with this Order, upon these Utah Department of Corrections (UDOC) employees: Dr. Bruce Burnham, Hope Director Holladay, and LSAC Linda Peterson.

         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[4]; 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 chooses not to rely on the defense of failure to exhaust and wish to pierce the allegations of the Complaint, Defendants 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 ...

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