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Garman v. Colby

United States District Court, D. Utah

February 9, 2018

JOHN PAUL GARMAN, Plaintiff,
v.
FNU COLBY et al., Defendants.

          MEMORANDUM DECISION & ORDER DIRECTING SERVICE OF PROCESS & DISPOSITIVE MOTION

          JUDGE TED STEWART United States District Court.

         Plaintiff, John Paul Garman, an inmate at Utah State Prison, filed this pro se 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 Amended Complaint, (see Docket Entry # 21), 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 Amended Complaint, along with this Order, upon the following Salt Lake County defendants:

Doctor or Nurse "Colby ID#/IS# HY4 10-21-13/1/9/2014"
Doctor or Nurse "ID#/IS# QTZ 10-21-13/10/30/13"
Doctor or Nurse "ID#/IS# GR2 1/22/14"
"Nurse ID#/IS# JF3 10/19/13"

         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.

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

         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. Fed.R.Civ.P. 56(e)(2).

         ORDER

         Accordingly, IT IS HEREBY ORDERED that:

         (1) The USMS shall serve a completed summons, a copy of the Amended Complaint, (see Docket Entry # 21), and a copy of this Order upon the above-listed defendants.

         (2) Within twenty days of being served, Defendants must file an answer or motion to dismiss and proposed order, as outlined above.

         (3) If filing (on exhaustion or any other basis) a Martinez report with a summary-judgment motion and proposed order, Defendants must do so within ninety days of filing an answer.

         (4) 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.

         (5) Summary-judgment motion deadline is ninety days from filing of answer.

         (6) Plaintiffs motion for a court order requiring Salt Lake County to turn over all his medical records is DENIED. (Docket Entry # 17.) Motions for discovery are premature at this time when the Amended Complaint is just being served.

         (7) Plaintiffs renewed motion for appointed counsel is DENIED, (see Docket Entry # 20), for the same reasons the Court used in denying Plaintiffs initial motion for appointed counsel, (see Id. # 5).

         Federal Rules of Civil Procedure

         (Current through changes received January 18, 2018)

         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 time until 30 days after the close of all discovery.

         (c) Procedures.

         (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

         (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

         (B) showing that the materials cited do not establish the absence or presence of a ...


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