Rowland v. Cache County Sheriff's Office

• Court: District Court, D. Utah
• Decided: August 30, 2022
• Docket: 1:19-cv-00020
• Status: Unknown

Opinion

THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH

DWAYNE TAYLOR ROWLAND JR.,

Plaintiff, MEMORANDUM DECISION & ORDER DENYING MOTION TO DISMISS v.

D. CHAD JENSEN et al., Case No. 1:19-CV-20 TC

District Judge Tena Campbell Defendants.

Plaintiff, Dwayne Taylor Rowland Jr., filed this pro se civil-rights action, see 42 U.S.C.S. § 1983 (2022), proceeding in forma pauperis. See 28 id. § 1915. Defendants' Motion to Dismiss is now before the Court for a ruling. (ECF No. 30.) Defendants argue that Plaintiff's action should be dismissed based on his failure to exhaust his administrative grievances according to Cache County Jail procedures. (Id.) Defendants' argument that Plaintiff was required to plead and prove that he exhausted grievances is flawed by its reliance on a case from before Jones v. Bock, 549 U.S. 199 (2006) (holding that "failure to exhaust is an affirmative defense under the PLRA [Prisoner Litigation Reform Act], and that inmates are not required to specially plead or demonstrate exhaustion in their complaints"), was filed. (See ECF No. 30 (citing Norton v. City of Marietta, 432 F.3d 1145, 1149 (10th Cir. 2005).) If Defendants wish to continue to rely on grievance exhaustion as a basis for dismissal, they should file a summary-judgment motion in which they submit evidence that "administrative remedies were, in fact, available" to Plaintiff but that Plaintiff "failed to exhaust these remedies." Purkey v. CCA Det. Ctr., 263 F. App'x 723, 726 (10th Cir. 2008) (unpublished). To be clear, "the burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant." Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). ORDER IT IS ORDERED that: (1) Defendants' Motion to Dismiss is DENIED. (ECF No. 30.) (2) The parties shall observe the Federal Rules of Civil Procedure and the following litigation schedule-- (a) If Defendants continue to assert the affirmative defense of Plaintiff's failure to exhaust administrative remedies in a grievance process, Defendants must,

(i) within 60 days, prepare and file a Martinez report1 limited to the exhaustion issue; and, (ii) within 90 days, file a separate summary judgment motion, with supporting memorandum.

1 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, 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 want to pierce the complaint’s allegations, Defendants must, (i) within 60 days, prepare and file a Martinez report addressing the complaint’s substance; and, (ii) within 90 days, file a separate summary judgment motion, with supporting memorandum. (d) If Defendants seek relief otherwise contemplated under procedural rules,

Defendants must file an appropriate motion within 60 days. (e) Plaintiff may, within 30 days of its filing, respond to a Martinez report if desired. (f) Plaintiff must, within 30 days of its filing, respond to a motion to dismiss or summary-judgment motion, or risk dismissal (g) Defendants shall file a reply brief within 14 days after the date Plaintiff’s opposition is filed. (3) No hearing will be held on a motion unless the Court so orders at a later date. (4) Defendants’ motion to strike is DENIED. (ECF No. 40.) DATED this 30th day of August, 2022. BY THE COURT:

TENA CAMPBELL United States District Judge