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Bacilio v. Garner

United States District Court, D. Utah

October 2, 2018

MIGUEL ANGEL BACILIO, Plaintiff,
v.
CURTIS L. GARNER et al., Defendants.

          MEMORANDUM DECISION & ORDER PARTIALLY DENYING DEFENDANTS' MOTION TO DISMISS

          JUDGE CLARK WADDOUPS UNITED STATES DISTRICT COURT.

         Plaintiff/inmate, Miguel Angel Bacilio, 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 Second Amended Complaint, (Doc. No. 13), he brings due-process claims, regarding the length of his imprisonment, against Utah Board of Pardons and Parole Defendants Garner, Russell, and Varoz.

         DISMISSAL OF RUSSELL AND VAROZ

         The complaint must clearly state what each individual defendant did to violate Plaintiff's civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating personal participation of each defendant is essential allegation). "To state a claim, a complaint must 'make clear exactly who is alleged to have done what to whom.'" Stone v. Albert, No. 08-2222, slip op. at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Plaintiff may not name an individual as a defendant based solely on supervisory status. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is insufficient to support liability under § 1983). Nor does "denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff . . . establish personal participation under § 1983." Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th Cir. Nov. 24, 2009).

         Considering these guidelines, the Court concludes that Plaintiff has failed to affirmatively link Defendants Russell and Varoz, as individuals, to his claims. He has not tied any material facts to them. Plaintiff's claims against these defendants may not survive this omission. And these defendants are dismissed.

         DEFENDANT GARNER'S MOTION TO DISMISS

         Defendant Garner moves for dismissal, asserting that Plaintiff's claims are barred by the statute of limitations, immunity, and Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff asserts that Defendants have been sued in both their individual and official capacity. The Court does not have sufficient information to make those determinations on a motion to dismiss. 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 GARNER'S DUTY TO RESPOND FURTHER

         The Court now orders Defendant Garner 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.

         The court invites the Defendant to address the following issues that would be helpful to the court:

(A) Significant facts remain incomplete or in dispute that bear upon whether the Plaintiff's claim was filed within the statute of limitations. More detail would be helpful to the court in understanding the issues retaliated to this defense including, the factual and legal basis as to when the Plaintiff's claim that he was denied his liberty (or false imprisonment) arose.
(B) Address why the Heck analysis has any application in light of Plaintiff's assertion that he does not seek to challenge or modify his underlying conviction.
(C) Provide legal and factual support for the authority of the Board of Pardons and Parole to continue to hold Plaintiff in custody after he had served the five years maximum sentence and had been in the primary jurisdiction of the State of Utah upon his arrest by the State of Utah.
(D) Provide legal and factual support for the Board of Pardons and Parole having jurisdiction over Plaintiff once he had served the five year maximum sentence starting with his being in the primary jurisdiction and custody of the State of Utah upon his arrest.
(E) Provide legal and factual support for the Board of Pardons and Parole's authority and jurisdiction to assign credit for time served to the State of Texas when Plaintiff was being held in the primary jurisdiction of the State of Utah.
(F) Provide legal and factual support for assigning time being served within the primary jurisdiction of the State of Utah against a detainer from Texas and address the importance of the fact the detainer had or would expire after 90 days.
(G) Provide legal and factual support for the Board of Pardons and Parole's treatment of an order of probation from a Texas court that appears have been completed or expired without a stay or further hearing by the Texas court.

         NOTICE TO PLAINITFF

         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.

         ORDER

         Accordingly, IT IS ...


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