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Ortiz v. Torgenson

United States District Court, D. Utah

October 26, 2017

DANIEL ORTIZ, Plaintiff,
v.
OFFICER TORGENSON et al., Defendants.

          MEMORANDUM DECISION & ORDER DISMISSING DEFENDANT & ORDERING SERVICE ON REMAINING DEFENDANTS

          TENA CAMPBELL UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff/inmate, Daniel Ortiz, filed a pro se civil rights case, see 42 U.S.C.S. § 1983 (2017), proceeding in forma pauperis, see 28 id. 1915. The Court now screens his Complaint, under the standard that any claims in a complaint filed in forma pauperis must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be granted. See Id. §§ 1915-1915A.

         DISMISSAL ORDER ON DEFENDANT UDOC

         Plaintiff names as a defendant Utah Department of Corrections (UDOC). The Court dismisses UDOC, as a governmental subdivision that has neither the right to sue nor be sued and has immunity under the Eleventh Amendment.

         ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS

         The Court concludes that official service of process is warranted on the remaining defendants. The United States Marshals Service (USMS) is directed to serve a properly issued summons and a copy of Plaintiff's Complaint, (see Docket Entry # 4), along with this Order, upon the following defendants: Officer Torgenson, Captain Cultur, Lieutenant Peterson, Sergeant Pickett, Officer Braithwait, CHS Allred, CHS George, Sergeant Anderson, and Officer Ekkart.

         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[1]; 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 ...

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