United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF
PROCESS & DISPOSITIVE MOTION
WADDOUPS, JUDGE United States District Court.
Curtis Scott Williams, filed this pro se prisoner
civil-rights suit. See 42 U.S.C.S. § 1983
(2018). Plaintiff was allowed to proceed in forma
pauperis. See 28 id. § 1915.
on its review of the Complaint, (see Docket Entry #
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 the
following Weber County defendants:
TERRY THOMPSON, WEBER COUNTY SHERIFF (WCSO) KEVIN
BURTON, WCSO JAIL COMMANDER KLINT ANDERSON, WCSO CHIEF DEPUTY
DR. JOHN WOOD, CONTRACTED BY WCSO
served, Defendants shall respond to the summons in one of
the following ways:
If Defendants wish to assert the affirmative defense of
Plaintiff's failure to exhaust administrative remedies
in a grievance process, Defendants must,
(i) file an answer, within twenty days of service;
within ninety days of filing an answer, prepare and file a
Martinez report limited to the exhaustion
(iii) within ninety days of filing an answer, file a
separate summary-judgment motion, with a supporting
(iv) within ninety days of filing an answer, submit a
proposed order for dismissing the case based upon
Plaintiff's failure to exhaust, in word processing format
Defendants choose to challenge the bare allegations of the
complaint, Defendants shall, within twenty days of service,
file a motion to dismiss based on Federal Rule of Civil
Procedure 12(b)(6), and submit a proposed order for
dismissing the case, in word processing format, to:
Defendants choose not to rely on the defense of failure to
exhaust and wishes to pierce the allegations of the
complaint, Defendants must,
(i) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare and file
a Martinez report addressing the substance of the
within ninety days of filing an answer, file a separate
summary-judgment motion, with a supporting memorandum;
within ninety days of filing an answer, submit a proposed
order for dismissing the case based upon the
summary-judgment motion, in word processing format, to:
is notified that, if 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
TO APPOINT COUNSEL
Court now addresses Plaintiff's motion for the Court to
request pro bono counsel to represent him. Plaintiff
has no constitutional right to counsel. See Carper v.
Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v.
Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
However, the Court may in its discretion appoint counsel for
indigent plaintiffs. See 28 U.S.C.S. §
1915(e)(1) (2018); Carper, 54 F.3d at 617;
Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). "The burden is upon the applicant to convince the
court that there is sufficient merit to his claim to warrant
the appointment of counsel." McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
deciding whether to appoint counsel, the district court
should consider a variety of factors, "including
'the merits of the litigant's claims, the nature of
the factual issues raised in the claims, the litigant's
ability to present his claims, and the complexity of the
legal issues raised by the claims.'" Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting
Williams, 926 F.2d at 996); accord
McCarthy, 753 F.2d at 838-39. Considering the above
factors, the Court concludes here that, at this time,
Plaintiff's claims may not be colorable, the issues in
this case are not complex, and Plaintiff is not at this time
too incapacitated or unable to adequately function in
pursuing this matter. Thus, the Court denies for now
Plaintiff's motion for appointed counsel.
IT IS HEREBY ORDERED that:
(1) Plaintiff's motion for service of process is
GRANTED. (See Docket Entry # 8.)
(2) The USMS shall serve a completed summons, a copy of the
Complaint, (see Docket Entry # 3), and a copy of
this Order upon the above-listed defendants.
(3) Within twenty days of being served, Defendant must file
an answer or motion to dismiss and proposed order, as
(4) If filing (on exhaustion or other basis) a
Martinez report with a
summary-judgment motion and proposed order, Defendant must do
so within ninety days of filing an answer.
(5) If served with a Martinez report and a
summary-judgment motion or motion to dismiss, Plaintiff must
file a response within thirty days. For Plaintiffs
information and convenience, the Court has attached the
procedural rules governing summary-judgment practice.
(6) Summary-judgment motion deadline is ninety days from
filing of answer.
(7) Plaintiffs motion for appointed counsel is
DENIED, (see Docket Entry # 9);
however, if, after the case develops further, it appears that
counsel may be needed or of specific help, the Court will ask
an attorney to appear pro bono on Plaintiffs behalf.
Rules of Civil Procedure (Current through changes