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Chaides v. Strong

United States District Court, D. Utah

June 25, 2018

DANIEL R. CHAIDES, Plaintiff,
v.
B. STRONG et al., Defendants.

          MEMORANDUM DECISION & ORDER DISMISSING DEFENDANTS & ORDERING SERVICE ON REMAINING DEFENDANTS

          JILL N. PARRISH, JUDGE

         Plaintiff Daniel R. Chaides filed a pro se civil rights case, see 42 U.S.C. § 1983, proceeding in forma pauperis, see 28 U.S.C. § 1915. The court now screens the Complaint, under the standard that any claims in a complaint filed in forma pauperis must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be granted. See Id. §§ 1915-1915A.

         DISMISSAL ORDER ON DEFENDANTS STATE OF UTAH AND USP

         Plaintiff names as defendants State of Utah and Utah State Prison (USP). The court dismisses State of Utah and USP, as either a governmental entity or a subdivision that has immunity under the Eleventh Amendment, or has no right to sue or be sued. Ray v. McGill, No. CIV-06-0334-HE, 2006 U.S. Dist. LEXIS 51632, at *8 (W.D. Okla. July 26, 2006) (unpublished) (citing Lujan v. Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th Cir. 1995); Eastwood v. Dep't of Corrs., 846 F.2d 627, 631 (10th Cir. 1988)).

         ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS

         The Court concludes that official service of process is warranted on the remaining defendants. The United States Marshals Service (USMS) is directed to serve a properly issued summons and copies of Plaintiff's Complaint, (see Doc. No. 6) and Complaint addendum, (Doc. No. 7), along with this Order, upon the following defendants: B. Strong (USP); Officer Zimmerman (USP); Officer C. Graham (USP); Nurse Adam Archer (USP); and University of Utah Telamed mental health doctor, an Asian female.

         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 (e.g., requesting an evidentiary hearing), 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 ...


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