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Bacon v. Wilcox

United States District Court, D. Utah

February 9, 2018

MICHAEL A. BACON, Plaintiff,
v.
TODD R. WILCOX et al., Defendants.

          MEMORANDUM DECISION & SECOND ORDER REQUIRING SERVICE ON DEFENDANTS

          JUDGE TED STEWART United States District Court.

         The United States Marshals Service (USMS) is again directed to serve a properly issued summons and a copy of Plaintiff's Amended Complaint, (see Docket Entry # 31), along with this Order, upon the following Salt Lake County-related defendants: Todd R. Wilcox, Brad Lewis, Eric Lindley, Patrick Gee and Deputy Backman.

         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, 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.

         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.

         ORDER

         Accordingly, IT IS HEREBY ORDERED that:

         (1) The USMS shall serve a completed summons, a copy of the Amended Complaint, (see Docket Entry # 31), and a copy of this Order upon Defendants-Todd R. Wilcox, Brad Lewis, Eric Lindley, Patrick Gee and Deputy Backman.

         (2) Within twenty days of service, Defendants must file answer(s) or motion to dismiss, as outlined above.

         (3) If filing (on exhaustion or any other basis) a Martinez report, Defendants must do so within 90 days of filing answer(s). Under this option, Defendants must then file a summary-judgment motion within 120 days of filing their answer.

         (4) If served with a Martinez report, Plaintiff may file a response within 30 days of the report's filing date.

         (5) If served with a summary-judgment motion or motion to dismiss, 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) Summary-judgment motion deadline is 120 days from filing of answer.

         (7) If requesting relief otherwise contemplated under the procedural rules, Defendants must do so within 90 days of filing their answer.

         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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