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MacArthur v. Tubbs

United States District Court, D. Utah

March 18, 2019

BRET GOLDEN MACARTHUR, Plaintiff,
v.
KENNON TUBBS et al., Defendants.

          MEMORANDUM DECISION & ORDER GRANTING IN PART & DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          DEE BENSON JUDGE UNITED STATES DISTRICT COURT

         Plaintiff, Bret Golden MacArthur, filed a pro se civil rights complaint, see 42 U.S.C.S. § 1983 (2018). His Amended Complaint, (Doc. No. 28), asserts claims against defendants who have not yet been dismissed: Kennon Tubbs, Logan Clark, Raymond Merrill, Aaron Douglas, Jeremy Wendler, Hughes, Green, Gurney, Drake, Laursen, and DeMill. His remaining claims are based on allegations of inadequate medical treatment and unconstitutional retaliation.

         DISMISSAL OF SOME DEFENDANTS

         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 at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)).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 done nothing to affirmatively link Defendants Merrill, Gurney, Drake, Laursen, and DeMill 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.

         REMAINING DEFENDANTS' MOTION TO DISMISS

         Defendants Tubbs, Clark, Douglas, Wendler, Hughes and Green (Remaining Defendants) move for dismissal, asserting Plaintiff's allegations are insufficient to state claims upon which relief may be granted. The Court disagrees and therefore denies Remaining Defendants' motion to dismiss. Remaining Defendants must therefore move beyond their motion to dismiss to the next stage of litigation.

         REMAINING DEFENDANTS' DUTY TO RESPOND FURTHER

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

(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 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 Defendants choose not to rely on the defense of failure to exhaust and wishes to pierce the allegations of the Complaint, Defendants 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 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 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 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

         Accordingly, IT IS HEREBY ORDERED that

         (1) Defendants' Motion to Dismiss is GRANTED in part. (Doc. No. 40.) Defendants Merrill, Gurney, Drake, Laursen and DeMill are DISMISSED.

         (2) Remaining Defendants' Motion to Dismiss is DENIED. (Doc. No. 40.)

         (3) Remaining Defendants must within 20 days file an answer and 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) Remaining Defendants 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 attached the procedural rules governing summary-judgment practice.

         (7) NO TIME EXTENSIONS WILL BE GRANTED

         Fed Rule of ...


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