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Case 2:12-cv-00468-DN Document 36 Filed 06/04/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

WILLIAM HERSCHEL CALHOUN III,


Plaintiff,

v.

SGT. OLSEN,

Defendant.

MEMORANDUM DECISION &
ORDER DIRECTING SERVICE OF
PROCESS, ANSWER AND/OR
DISPOSITIVE MOTION
Case No. 2:12-CV-468 DN
District Judge David Nuffer

Plaintiff, William Herschel Calhoun III, an inmate at Utah

State Prison, filed this pro se civil rights suit. See 42
U.S.C.S. § 1983 (2013). Plaintiff was allowed to proceed in
forma pauperis. See 28 id. § 1915.

Based on review of the Amended Complaint, the Court

concludes that official service of process is warranted. The
United States Marshals Service is directed to serve a properly
issued summons and a copy of Plaintiff's Amended Complaint, along
with this Order, upon the following individual: Sgt. Olsen.

Once served, Defendant shall respond to the summons in one

of the following ways:

(A) If Defendant wishes to assert the affirmative defense of
Plaintiff's failure to exhaust administrative remedies in a
grievance process, Defendant must,

Case 2:12-cv-00468-DN Document 36 Filed 06/04/13 Page 2 of 5

(i) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare
and file a Martinez report limited to the exhaustion
issue1;
(iii) within ninety days of filing an answer, file a
separate summary judgment motion, with a supporting
memorandum; and
(iv) within ninety days of filing an answer, submit a
proposed order for dismissing the case based upon
Plaintiff's failure to exhaust, in word processing
format, to:
[email protected]

1 See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving

In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit

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).
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.

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Case 2:12-cv-00468-DN Document 36 Filed 06/04/13 Page 3 of 5

(B) If Defendant chooses to challenge the bare allegations
of the complaint, Defendant shall, within twenty days of
service,

(i) file an answer; or
(ii) file a motion to dismiss based on Federal Rule of
Civil Procedure 12(b)(6), and submit a proposed order
for dismissing the case, in word processing format, to:
[email protected]

(C) 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) file an answer, within twenty days of service;
(ii) within ninety days of filing an answer, prepare
and file a Martinez report addressing the substance of
the complaint;
(iii) within ninety days of filing an answer, file a
separate summary judgment motion, with a supporting
memorandum; and
(iv) within ninety days of filing an answer, submit a
proposed order for dismissing the case based upon the
summary judgment motion, in word processing format, to:
[email protected]

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Case 2:12-cv-00468-DN Document 36 Filed 06/04/13 Page 4 of 5

The parties shall take note that new local rules governing
civil cases are now in effect. The Approved Amendments to the
Local Rules and Updated Rules are posted on the Court's website.
All new requirements are important but the most significant
changes are in motion practice and sealed filings. This Court
will order the parties to refile summary-judgment motions which
do not follow the new standards. See D. Utah Civ. R. 5-2 (Filing
Cases and Documents under Court Seal); id. 7-1 (Motions and
Memoranda); id. 26-2 (Standard Protective Order and Stays of
Depositions); id. 56-1 (Summary Judgment: Motions and Supporting
Memoranda).

Plaintiff is notified that if Defendant moves for summary
judgment Plaintiff cannot 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) The United States Marshals Service shall serve a

completed summons, a copy of the Amended Complaint, (Docket Entry
# 34), and a copy of this Order upon the above-listed defendant.

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Case 2:12-cv-00468-DN Document 36 Filed 06/04/13 Page 5 of 5

(2) Within twenty days of being served, Defendant must file

an answer or motion to dismiss and proposed order, as outlined
above.

(3) If filing (on exhaustion or any other basis) a Martinez

report with a summary-judgment motion and proposed order,
Defendant must do so within ninety days of filing his answer.

(4) If served with a Martinez report and a summary-judgment
motion or motion to dismiss, Plaintiff may file a response within
thirty days.

(5) Summary-judgment motion deadline is ninety days from

filing of answer.

DATED this 3rd day of June, 2013.

BY THE COURT:

______________________________
JUDGE DAVID NUFFER
United States District Court

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