Martinez v. Brown

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

REYNALDO THOMAS MARTINEZ,

Plaintiff, MEMORANDUM DECISION & ORDER

REGARDING SERVICE OF PROCESS

v.

RICK BROWN et al., Case No. 2:19-CV-254 TC

District Judge Tena Campbell

Defendants.

Plaintiff, Reynaldo Thomas Martinez, held at Utah State Prison (USP), filed this pro se

civil suit, see, e.g., 42 U.S.C.S. § 1983 (2021),1 proceeding in forma pauperis, see 28 id. § 1915.

Having now screened the Complaint, (ECF No. 4), under its statutory review function,2 the Court

concludes that one defendant must be dismissed and official service of process is warranted for

remaining defendants. See 28 U.S.C.S. § 1915(d) (2021) (“The officers of the court shall issue

and serve all process, and perform all duties in such cases.”).

1 The federal civil-rights statute reads, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . ., subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C.S. § 1983 (2021).

2 The screening statute reads:

(a) Screening.—The court shall review . . . a complaint in a civil action in

which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity.

(b) Grounds for dismissal.—On review, the court shall identify cognizable

claims or dismiss the complaint, or any portion of the complaint, if the

complaint—

(1) is frivolous, malicious, or fails to state a claim upon which

relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from

such relief.

28 U.S.C.S. § 1915A (2021).

A. DISMISSAL OF DEFENDANT “USP WARDEN”

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 each

defendant’s personal participation 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, 338 F. App’x

757, 759 (10th Cir. 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma,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, 587

F.3d 1063, 1069 (10th Cir. 2009).

Considering these guidelines, the Court concludes Plaintiff has done nothing to

affirmatively link to his claims this defendant: “USP Warden.” He has not tied any material facts

to this defendant. Any claims against this defendant may not survive this omission; they are thus

dismissed.

B. SERVICE ORDER REGARDING REMAINING DEFENDANTS

Under Federal Rule of Civil Procedure 4(c)(1), the Court requests waiver of service from

USP Defendants Rick Brown (disciplinary hearing officer (DHO)); Maryann Redding (DHO);

Caleb Head (corrections officer); and Joshua Cahoon (investigator).

C. CONCLUSION

IT IS ORDERED that:

(1) Defendant USP Warden is DISMISSED.

(2) The Clerk of Court shall mail:

(a) Notice of a Lawsuit and Request to Waive Service of a Summons, AO form 398; copies

of Waiver of the Service of Summons, AO form 399; and copies of Complaint, (ECF No. 4),

and this Order to Defendants Brown, Redding, Head, and Cahoon:

Utah Department of Corrections

Att’n: Correctional Program Coordinator--3rd Floor DPO Suite

14717 South Minuteman Drive

Draper, UT 84020.

(b) Copies of Complaint and this Order to:

Utah Attorney General’s Office

Att’n: Litigation Division, Prisoner Litigation Unit

160 East 300 South, Sixth Floor

P.O. Box 140856

Salt Lake City, UT 84114-0856.

(3) Defendants are cautioned that Federal Rule of Civil Procedure 4 requires Defendants to

cooperate in saving unnecessary costs of serving summons and complaint. Under Rule 4, if

Defendants fail to waive service of summons, after being asked by the Court to do so on

Plaintiff’s behalf, Defendants must bear service costs unless good cause be shown for failing to

sign and return the waiver form. If service is waived, this action will proceed as if Defendants

had been served on the day the waiver is filed, except that Defendants need not file an answer

until 60 days from the date on which the waiver request was sent. See Fed. R. Civ. P. 4(d)(3).

(This allows longer time to respond than would be required if formal service of summons is

necessary.) Defendants must read the statement at the bottom of the waiver form that more

completely describes the party’s duties about waiver. If service is waived after the deadline given

in the Notice of a Lawsuit and Request to Waive Service of a Summons, but before Defendants

have been personally served, the Answer shall be due 60 days from the date on which the request

for waiver was sent or 20 days from the date the waiver form is filed, whichever is later.

(4) For every Defendant for whom service has been ordered but for whom a waiver has not been

executed, attorneys for the Department of Corrections or Defendant must file a notice listing the

Defendant for whom service has not been waived and the reasons a waiver has not been

provided. This report is due 30 days from the date the Request was sent.

(5) Defendants shall answer the complaint, observing the Federal Rules of Civil Procedure and

the following litigation schedule:

(a) If Defendants assert the affirmative defense of Plaintiff's failure to exhaust administrative

remedies in a grievance process, Defendants must,

(i) within 60 days of date of waiver request, file an answer;

(ii) within 90 days of filing an answer, prepare and file a Martinez report3 limited to the

exhaustion issue; and,

(iii) within 120 days of filing an answer, file a separate summary judgment motion, with

supporting memorandum.

3 See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court’s practice of ordering prison

administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging

constitutional violation against institution officials).

In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a

Martinez report, saying:

Under the Martinez procedure, the district judge or a United States magistrate

[judge] to whom the matter has been referred will direct prison officials to

respond in writing to the various allegations, supporting their response by

affidavits and copies of internal disciplinary rules and reports. The purpose of

the Martinez report is to ascertain whether there is a factual as well as a legal

basis for the prisoner's claims. This, of course, will allow the court to dig

beneath the conclusional allegations. These reports have proved useful to

determine whether the case is so devoid of merit as to warrant dismissal without

trial.

Id. at 1007.

(b) If Defendants challenge the complaint’s bare allegations, Defendants shall, within 60

days of date of waiver request, file a motion to dismiss based on Federal Rule of Civil

Procedure 12(b)(6).

(c) If Defendants choose not to rely on an exhaustion defense and wants to pierce the

complaint’s allegations, Defendants must,

(i) within 60 days of date of waiver request, file an answer;

(ii) within 90 days of filing an answer, prepare and file a Martinez report addressing the

complaint’s substance; and,

(iii) within 120 days of filing an answer, file a separate summary judgment motion, with

supporting memorandum.

(d) If Defendants want to seek relief otherwise contemplated under procedural rules,

Defendants must file an appropriate motion within 90 days of filing an answer.

(6) Plaintiff must, within 30 days of its filing, respond to Martinez report, including a request for

other discovery desired.

(7) Plaintiff must, within 30 days of its filing, respond to motion to dismiss or summary-

judgment motion. For Plaintiff’s information and convenience, the Court has attached the

procedural rules governing summary-judgment practice.

(8) Defendants shall file reply brief within 14 days after the date Plaintiff’s opposition is filed.

(9) A motion to dismiss or for summary judgment shall be deemed submitted as of the date the

reply brief is due. No hearing will be held on a motion unless the Court so orders at a later date.

(10) Plaintiff must tell the Court of any address change and timely comply with Court orders. See

D. Utah Civ. R. 83-1.3(e) ("In all cases, counsel and parties appearing pro se must notify the

clerk's office immediately of any change in address, email address, or telephone number.").

Failure to do so may result in this action’s dismissal for failure to prosecute. See Fed. R. Civ. P.

41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a

defendant may move to dismiss the action or any claim against it. Unless the dismissal order

states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--

except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--

operates as an adjudication on the merits.”).

(11) Extensions of time are disfavored, though reasonable extensions may be granted. Any

motion for time extension must be filed no later than 14 days before the deadline to be extended.

(12) No direct communication is to take place with any judge. All relevant information, letters,

documents, and papers, labeled with case number, are to be directed to the Clerk of Court.

DATED this 13th day of July, 2021.

BY THE COURT:

United States District Court

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 any time until 30 days after the close of all discovery.

 (c) Procedures.

o (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by:

 (A) citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other materials; or

 (B) showing that the materials cited do not establish the absence or presence of a genuine dispute,

or that an adverse party cannot produce admissible evidence to support the fact.

o (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material

cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

o (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other

materials in the record.

o (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be

made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.

 (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its opposition, the court may:

o (1) defer considering the motion or deny it;

o (2) allow time to obtain affidavits or declarations or to take discovery; or

o (3) issue any other appropriate order.

 (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or

fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:

o (1) give an opportunity to properly support or address the fact;

o (2) consider the fact undisputed for purposes of the motion;

o (3) grant summary judgment if the motion and supporting materials—including the facts considered

undisputed—show that the movant is entitled to it; or

o (4) issue any other appropriate order.

 (f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

o (1) grant summary judgment for a nonmovant;

o (2) grant the motion on grounds not raised by a party; or

o (3) consider summary judgment on its own after identifying for the parties material facts that may not be

genuinely in dispute.

 (g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion,

it may enter an order stating any material fact—including an item of damages or other relief—that is not

genuinely in dispute and treating the fact as established in the case.

 (h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule

is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to respond—may

order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred

as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate

sanctions.

DISTRICT OF UTAH LOCAL CIVIL RULE 56‐1

SUMMARY JUDGMENT: MOTIONS AND SUPPORTING MEMORANDA

(a) Summary Judgment Motions and Memoranda.

A motion for summary judgment and the supporting memorandum must clearly identify itself in

the case caption and introduction.

(b) Motion; Requirements and Supporting Evidence.

A motion for summary judgment must include the following sections and be supported by an

Appendix of Evidence as follows:

(1) Introduction and Relief Sought: A concise statement of each claim or defense for which

summary judgment is sought, along with a clear statement of the relief requested. The parties

should endeavor to address all summary judgment issues in a single motion. If a party files

more than one motion, the court may strike the motion and that require the motions be

consolidated into a single motion.

(2) Background (Optional):Parties may opt to include this section to provide background and

context for the case, dispute, and motion. If included, this section should be placed between the

Relief Sought section and the Statement of Undisputed Material Facts section. Factual

summaries in the background section need not be limited to undisputed facts and need not cite

to evidentiary support.

(3) Statement of Undisputed Material Facts: A concise statement of the undisputed material

facts that entitle the moving party to judgment as a matter of law. Only those facts necessary to

decide the motion should be included in this section. The moving party must cite with

particularity the evidence in the Appendix of Evidence that supports each factual assertion.

(4) Argument: An explanation for each claim or defense, of why, under the applicable legal

principles, the moving party is entitled to judgment as a matter of law. The arguments should

include a statement of each claim or defense on which the party is seeking summary judgment

and supporting authorities. Any factual citations must cite to the Appendix of Evidence, not the

Statement of Undisputed Material Facts.

(5) Appendix of Evidence: All evidence offered in support of the motion must be submitted in an

attached appendix. The appendix should be preceded by a captioned cover-page index that lists

each exhibit by number, includes a description or title, and if the exhibit is a document, identifies

the source of the document. The appendix should include complete copies of all exhibits,

including complete copies of depositions, to the extent possible. In cases where lengthy

depositions are relied upon, the moving party need not submit the entire deposition. However,

the moving party must submit at least four (4) pages before and four (4) pages after the cited

deposition transcript pages(s), for a total of at least nine (9).

(c) Opposition Memorandum Requirements and Supporting Evidence.

A memorandum in opposition to a motion for summary judgment must include the following

sections and, if applicable, be supported by an Appendix of Evidence as follows:

(1) Introduction: A concise summary explaining why summary judgment should be denied.

(2) Background (Optional): Parties may opt to include this section to provide background and

context for the case, dispute, and motion. If included, this section should be placed between the

Introduction section and the Response to Statement of Undisputed Material Facts section.

Factual summaries in the background

section need not be limited to undisputed facts and need not cite to evidentiary support.

(3) Response to Statement of Undisputed Material Facts: A restatement of each fact the

opposing party contends is genuinely disputed or immaterial, a concise statement explaining

why the fact is disputed or immaterial, and a citation with particularity to the evidence upon

which the non-moving party relies to refute that fact 8. Any factual citations must reference the

appropriate party's Appendix of Evidence, rather than either party's factual statements or

responses. The nonmoving party should not restate all of the moving party's statement of facts

and should only respond to those facts for which there is a genuine dispute of material fact.

(4) Statement of Additional Material Facts (if applicable): If additional material facts are relevant

to show that there is a genuine dispute of material fact, state each such fact and cite with

particularity the evidence that supports the factual assertion from the appropriate party's

Appendix of Evidence.

(5) Argument: An explanation for each claim or defense of why, under the applicable legal

principles, summary judgment should be denied. Any factual citations must cite to the

appropriate party's Appendix of Evidence, rather than either party's factual statements or

responses.

(6) Appendix of Evidence: All evidence offered in opposition to the motion must be submitted in

an appendix, utilizing the same procedure set out in DUCivR 56-1(b)(5). Counsel must make

every effort not to duplicate evidence submitted by the other party. The appendix should be

preceded by a cover page index that lists each exhibit by number, includes a description or title

and, if the exhibit is a document, identifies the source of the document.

(d) Reply.

The moving party may file a reply memorandum. In the reply, a moving party may cite only

additional evidence not previously cited in the opening memorandum to rebut a claim that a

material fact is in dispute. Otherwise, no additional evidence may be cited in the reply

memorandum, and if cited, the court will disregard it.

(e) Citations of Supplemental Authority.

When pertinent and significant authorities come to the attention of a party after the party's

memorandum in support of or in opposition to a summary judgment motion has been filed, or

after oral argument but before decision, a party may promptly file a notice with the court and

serve a copy on all counsel, setting forth the citations. There must be a reference either to the

page of the memorandum or to a point argued orally to which the citations pertain, but the notice

must state, without argument, the reasons for the supplemental citations. Any response must be

made, filed promptly, and be similarly limited.

(f) Failure to Respond.

Failure to respond timely to a motion for summary judgment may result in the court's granting

the motion without further notice, provided the moving party has established that it is entitled to

judgment as a matter of law.

(g) Length of Memoranda and Filing Times.

(1) A motion for summary judgment and a memorandum in opposition must not exceed 10,000

words, or in the alternative, forty (40) pages. A reply brief cannot exceed 5,000 words, or in the

alternative, twenty (20) pages. If the document exceeds the page limit, then the party must

certify compliance with the word-count limit. This limitation includes the following items:

introduction, relief sought, background, statement of undisputed material facts, response to

statement of undisputed material facts, statement of additional material facts, argument, and

conclusion. This limitation excludes the following items: face sheet, table of contents, table of

authorities, signature block, certificate of service, and appendix. Motions to file an overlength

brief are discouraged and will be granted only upon a showing of good cause and exceptional

circumstances, as set forth in DUCivR 7-1(e).

(2) Filing times and length of memoranda are governed by DUCivR 7-1.