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Carrell v. Kearl

United States District Court, D. Utah

April 8, 2019

JOHN CARRELL, Plaintiffs,
v.
JORDAN KEARL et al., Defendants.

          MEMORANDUM DECISION & ORDER REQUIRING MARTINEZ REPORT AND DISPOSITIVE MOTION

          Tena Campbell District Judge

         Plaintiff, John Carrell, an inmate at Utah State Prison, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2019). Defendants have answered the Complaint. (Doc. Nos. 3, 37-46.)

         The Court now orders 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 wish 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 must within 90 days file a Martinez report.
(2) When served with a Martinez report, Plaintiff may submit a response within 30 days of the report's filing date.
(3) Defendants must within 120 days file a summary-judgment motion or a document stating why summary judgment would not be an appropriate vehicle to move this case forward.
(4) 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.
(5) Plaintiffs renewed motion for appointed counsel is DENIED, (see Doc. No. 57), for the same reasons the Court used in denying Plaintiffs initial motion for appointed counsel, (id. 5).
(6) Defendants' motion to quash Plaintiffs discovery requests is GRANTED. (Id. 55.)
(7) Plaintiffs motion to compel discovery is DENIED. (Id. 59.) Per Tenth Circuit precedent, the Court has directed discovery in this Order by requiring a Martinez report and responses.

         Fed Rule of Civil Procedure 56

         Rule 56. Summary Judgment .

         (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

         • (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at ...


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