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Hargrave v. Neiburh

United States District Court, D. Utah

October 25, 2017

DONALD WAYNE HARGRAVE JR., Plaintiff,
v.
MR. NEIBURH, Defendant.

          MEMORANDUM DECISION & ORDER REQUIRING SERVICE OF PROCESS

          DAVID NUFFER CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff/inmate, Donald Wayne Hargrave Jr., 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 Northern Utah Community Correctional Center employee, Mr. Neiburh.

         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 ...

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