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Duran v. Sgt. Jeff Colbert

United States District Court, D. Utah

September 20, 2018

RAMIRO MARQUEZ DURAN, Plaintiff,
v.
SGT. JEFF COLBERT et al., Defendants.

          MEMORANDUM DECISION & ORDER DENYING DEFENDANT COLBERT'S MOTION TO DISMISS

          Clark Waddoups District Judge.

         Plaintiff/inmate, Ramiro Marquez Duran, filed a pro se civil rights complaint, see 42 U.S.C.S. § 1983 (2018), proceeding in forma pauperis, see 28 id. 1915. In his Amended Complaint, (Doc. No. 18), he brings excessive-force claims against Defendants Colbert, Shupe and Mcirt.

         MOTIONS TO QUASH

         Service of the Amended Complaint was ordered on all defendants, as per the Amended Complaint which identified them all as Salt Lake County employees. (Doc. No. 20.) The Salt Lake County District Attorney moves to quash service on Defendants Shupe and Mcirt. (Doc. Nos. 28 & 29.) Defendant Shupe appears to be instead a Salt Lake City police officer, while Defendant Mcirt appears to be instead an acronym for “Mobile Critical Incident Response Team, ” which is not an independent entity that may be sued. The Court thus grants both motions to quash and will separately order renewed service on Officer Shupe through Salt Lake City. Meanwhile, Defendant “Mcirt” is dismissed.

         DEFENDANT COLBERT'S MOTION TO DISMISS

         Defendant Colbert moves for dismissal, asserting that Plaintiff has not provided enough specificity in his excessive-force allegations to state a claim upon which relief may be granted. The Court disagrees. The Court therefore denies Defendant's motion to dismiss. Defendant must therefore move beyond his answer and motion to dismiss to the next stage of litigation.

         DEFENDANT COLBERT'S DUTY TO RESPOND FURTHER

         The Court now orders Defendant Colbert to file a Martinez report[1] and dispositive motion as follows:

(A) If Defendant wishes to assert the affirmative defense of Plaintiff's failure to exhaust administrative remedies in a grievance process, Defendant must,
(i) within 90 days, prepare and file a Martinez report limited to the exhaustion issue; and,
(ii) within 120 days, file a separate summary judgment motion, with a supporting memorandum.
(B) If Defendant chooses not to rely on the defense of failure to exhaust and wishes to pierce the allegations of the Complaint, Defendant must,
(i) within 90 days, prepare and file a Martinez report addressing the substance of the complaint; and,
(ii) within 120 days, file a separate summary judgment motion, with a supporting memorandum.
(C) If Defendant wishes to seek relief otherwise contemplated under the procedural rules (e.g., requesting an evidentiary hearing), Defendant must file an appropriate motion within 90 days of filing their answer.

         Plaintiff is notified that Plaintiff may, within 30 days of its filing, respond to a Martinez report if desired. Plaintiff is further notified that Plaintiff must, within 30 days of its filing, respond to the summary-judgment motion. Plaintiff is finally notified that, when Defendant moves 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.

         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) The motions to quash are GRANTED. (Doc. Nos. 28 & 29.)

         (2) Defendant Colbert's Motion to Dismiss is DENIED. (Doc. No. 31.)

         (3) Defendant Colbert must within 90 days file a Martinez report.

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

         (5) Defendant Colbert must within 120 days file a summary-judgment motion.

         (6) When served with a summary-judgment motion, Plaintiff must submit a response within 30 days of the motion's filing date. For Plaintiffs information and convenience, the Court has ...


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