Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Thompson

United States District Court, D. Utah

February 9, 2018

CURTIS SCOTT WILLIAMS, Plaintiff,
v.
TERRY THOMPSON et al., Defendants.

          MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF PROCESS & DISPOSITIVE MOTION

          CLARK WADDOUPS, JUDGE United States District Court.

         Plaintiff, 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.

         Based 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

         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) file an answer, within twenty days of service;

         (ii) within ninety days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue[1];

(iii) within ninety days of filing an answer, file a separate summary-judgment motion, with a supporting memorandum; and
(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 to: utdecfprisonerlitigationunit@utd.uscourts.gov.

         (B) If 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: utdecfprisonerlitigationunit@utd.uscourts.gov.

         (C) If 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 complaint;

         (iii) within ninety days of filing an answer, file a separate summary-judgment motion, with a supporting memorandum; and

         (iv) 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: utdecfprisonerlitigationunit@utd.uscourts.gov.

         Plaintiff 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 trial.[2]

         MOTION TO APPOINT COUNSEL

         The 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).

         When 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.

         ORDER

         Accordingly, 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 outlined above.
(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.

         Federal Rules of Civil Procedure (Current through changes ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.