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Jese v. Dennis

United States District Court, D. Utah

February 9, 2018

FRANK JESE, Plaintiffs,
v.
TIM DENNIS, Defendant.

          MEMORANDUM DECISION & ORDER REQUIRING MARTINEZ REPORT AND DISPOSITIVE MOTION

          TED STEWART, United States District Court Judge

         Plaintiff, inmate Frank Jese, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2018). Defendant has answered the Complaint. (Docket No. 20.) Responding to the Court's order to file (1) a motion to dismiss; or (2) a Martinez report and summary-judgment motion; or (3) a motion for other relief, (Docket No. 13), Defendant filed a motion for a § 1915 hearing, (Docket No. 24 (citing 28 U.S.C.S. § 1915A (2018)).

         The Court has carefully reviewed Defendant's motion and denies it. First, Defendant argues that only “a small number of live witnesses plus the introduction of a relatively few documents would demonstrate to the Court that Jese's claims fail.” (Docket No. 24, at 4.) If this is true, Defendant may move for summary judgment attaching just those documents and declarations necessary to decide the motion. Second, Defendant's suggested procedure appears to unfairly favor Defendant. Plaintiff would be at a disadvantage appearing telephonically to navigate a hearing with live witnesses and would be better able to respond to written submissions in writing. Finally, Defendant argues the suggested procedure would meet the Court's screening duty in prisoner cases; however, what is suggested goes well beyond screening (which simply determines whether Plaintiff's claims on their face are frivolous, malicious, or fail to state a claim). The Court had already screened the case under this standard when it ordered service. What Defendant suggests is more like a mini summary-judgment hearing or trial, without typical protections in place for a pro se plaintiff.

         The Court now orders Defendants to file a Martinez report[1] and dispositive motion as follows:

(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 90 days, prepare and file a Martinez report limited to the exhaustion issue; and, (ii) within 120 days, file a separate summary judgment motion, with a supporting memorandum.
(B) 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 90 days, prepare and file a Martinez report addressing the substance of the complaint; and,
(ii) within 120 days, file a separate summary judgment motion, with a supporting memorandum.
(C) 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 their answer.

         The parties shall take note that local rules governing civil cases are in effect.

         Plaintiff is notified that Plaintiff may, within 30 days of its filing, respond to a Martinez report if desired. Plaintiff is further notified that Plaintiff must, within 30 days of its filing, respond to the summary-judgment motion. Plaintiff is finally notified that, when Defendants move 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 motion for summary judgment Plaintiff must allege specific facts, admissible in evidence, showing that there is a genuine issue remaining for trial.

         ORDER

         Accordingly, IT IS HEREBY ORDERED that:

(1) Defendant's Motion for § 1915 Hearing is DENIED. (Docket No. 24.)
(2) Defendants must within 90 days file a Martinez report.
(3) When served with a Martinez report, Plaintiff may submit a response within 30 days of the report's filing date.
(4) Defendants must within 120 days file a summary-judgment motion.
(5) When served with a summary-judgment motion, Plaintiff must submit a response within 30 days of the motion's filing date. For Plaintiff's information and convenience, the Court has attached the procedural rules governing summary-judgment practice.
(6) If requesting relief otherwise contemplated under the procedural rules, Defendants must do so within 90 days.

         Fed Rule of Civil Procedure 56

         Current through changes received December 12, 2017. Rule 56. Summary Judgment

         • (a) Motion for Summary Judgment or Partial Summary Judgment.

         A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

         • (b) Time to File a Motion.

         Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any ...


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