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Bacon v. Wilcox

United States District Court, D. Utah

May 7, 2018

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

          MEMORANDUM DECISION & THIRD ORDER REQUIRING SERVICE ON DEFENDANTS

          TED STEWART JUDGE

         The Court rules below on several motions. 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: 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

          IT IS HEREBY ORDERED that:

         (1) For the reasons stated in the Court's earlier order, (Doc. No. 29), denying Plaintiff's first motion for appointed counsel, (Doc. No. 26), Plaintiff's second and third motions for appointed counsel are DENIED. (Doc. Nos. 39 & 58.) As the Court said earlier, “[I]f, 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 Plaintiff's behalf.” (Doc. No. 29, at 4.) NO FURTHER MOTIONS OF THIS NATURE WILL BE ACCEPTED HERE.

         (2) The motion to dismiss for lack of jurisdiction filed by Defendants Lewis, Lindley, and Wilcox is GRANTED. (Doc. No. 46.) Plaintiff concedes that he “misspoke” in perhaps trying to state a negligence or medical malpractice claim. (Pl's Opp'n to Defs.' Mot. to Dismiss, Doc. 48, at 2.) However, Plaintiff's inadequate-medical-treatment claim under the Eighth Amendment stands and shall be addressed by Defendants as set forth in the Court's February 9, 2018 Order. (Doc. No. 40.)

         (3) The motion to quash service filed by Defendants Gee and Backman is GRANTED. (Doc. No. 47.)

         (4) Plaintiff's motions to strike and for default judgment are DENIED as patently groundless. (Doc. Nos. 53, 54, & 59.)

         IT IS FURTHER ORDERED that:

         (5) 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-Patrick Gee and Deputy Backman. DEFENDANTS MUST BE SERVED AT THE SALT LAKE COUNTY SHERIFF'S OFFICE HUMAN RESOURCES DIVISION.

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

         (7) 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 ...


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