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Lee v. Utah Dep't of Corrs.

United States District Court, D. Utah

November 1, 2017

ARTHUR RANDALL LEE, Plaintiff,
v.
UTAH DEP'T OF CORRS. et al., Defendants.

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

          JUDGE TED STEWART, UNITED STATES DISTRICT COURT.

         Plaintiff/inmate, Arthur Randall Lee, 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 defendants Utah Department of Corrections (UDOC) and its employees, Joseph Coombs, Chad Duford and Raymond Merrill. He alleges that Defendants provided inadequate medical treatment. 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 # 5), along with this Order, upon the following defendants: Joseph Coombs, Chad Duford, and Raymond Merrill.

         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 Procedure 12(b)(6).

         (C) If Defendants choose not to rely on the defense of failure to exhaust and wish to pierce the allegations of the Complaint, 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 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 Defendants wish to seek relief otherwise contemplated under the procedural rules (e.g., requesting an evidentiary hearing), Defendants 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. This Court will order the parties to refile summary-judgment motions which do not follow the standards. See D. Utah Civ. R. 5-2 (Filing Cases and Documents under Court Seal); id. 7-1 (Motions and Memoranda); id. 26-2 (Standard Protective Order ...


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