Apodaca v. Marcantel et al
ORDER by Magistrate Judge Laura Fashing granting 83 Motion for the Admission of Documents; construing 87 Motion for Partial Summary Judgment as a response to the Martinez Report; and denying 91 Motion for Hearing. (cda)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VICTOR ANDREW APODACA, Sr.,
GERMAN FRANCO, MICHELLE BOYER,
TISHA ROMERO, and VINCENT VIGIL,
ORDER ON MOTIONS
THIS MATTER comes before the Court on plaintiff Andrew Apodaca’s Request for the
Admission of Documents (Doc. 83),1 his Motion for Partial Summary Judgment (Doc. 87), and
his Request for Trial or Pretrial Hearing or Conference (Doc. 91). Having reviewed the
motions and being fully advised, the Court finds that Mr. Apodaca’s request for admission of
documents is well taken and will be GRANTED, Mr. Apodaca’s motion for summary judgment
will be construed as part of his response to the Martinez report, and his request for a trial and
pretrial conference is premature, and will be DENIED.
1. Request for Admission of Documents (Doc. 83)
Mr. Apodaca filed his complaint for civil rights violations on January 21, 2015.
On November 17, 2015, the Court ordered defendants German Franco, Michelle Boyer, and
Vincent Vigil to file a Martinez report. Doc. 44. Under Martinez v. Aaron, 570 F.2d 317, 319–
20 (10th Cir. 1978), the Court may order defendants to investigate the incident or incidents
Mr. Apodaca filed the same document in Apodaca v. Corizon Health Care et al,
2:16-cv-00096-MV-LF, at Doc. 21, and the Court will grant his request to admit documents in
that case in an order filed contemporaneously with this order.
underlying plaintiff’s lawsuit and submit a report of their investigation in order to develop a factual
or legal basis for determining whether plaintiff has a meritorious claim. See Gee v. Estes, 829
F.2d 1005, 1007 (10th Cir. 1987). A Martinez Report may be used in a variety of contexts,
including motions for summary judgment or a sua sponte entry of summary judgment.
Martinez Report is used for summary judgment purposes, the pro se plaintiff must be afforded an
opportunity to present conflicting evidence to controvert the facts set out in the report. Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
In accordance with the Court’s order for a Martinez Report, the Court required Mr.
Apodaca to file his response on or before February 19, 2016. Doc. 44. Mr. Apodaca did not file
a response by February 19, 2016. Apparently, Mr. Apodaca was having difficulty mailing
documents to the Court because he could no longer afford to pay for postage. See Docs. 50, 59,
60, 63, 68, 74. Despite these difficulties, Mr. Apodaca filed his response to the Martinez Report
on March 31, 2016. Doc. 69. In his motion for the admission of documents—filed five months
after his deadline to respond to the Martinez Report—Mr. Apodaca explains that the documents he
is sending are in response to the Martinez Report and are evidence that supports his allegations.
Doc. 83 at 1. He asks that they be admitted in support of his claims. Id. at 2. Mr. Apodaca must
be afforded an opportunity to present conflicting evidence. Acknowledging the problems he
claims to have had in mailing documents to the Court, I will grant his motion and accept the
documents for consideration.
Within his motion for the admission of documents, Mr. Apodaca submits a motion for the
production of documents from defendant pursuant to Federal Rule of Civil Procedure 34. Doc. 83
at 3–6. Discovery matters are within the district court’s broad discretion. Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010). The purpose of a Martinez report in a pro se
prisoner case is to “develop a record sufficient to ascertain whether there are any factual or legal
bases for the prisoner’s claims.” Hall, 935 F.2d at 1109. The practice of ordering a Martinez
report allows the assembly of a record “necessary for the orderly consideration of the issues.”
Martinez, 570 F.2d at 319. At this point, discovery is unnecessary because defendants have
provided a record sufficient to ascertain whether there is any factual or legal basis for Mr.
Apodaca’s claims. The Court denies Mr. Apodaca’s request for discovery.
2. Motion for Summary Judgment (Doc. 87)
On August 24, 2016, Mr. Apodaca submitted a motion for partial summary judgment
(Doc. 87), a brief in support of his motion (Doc. 88), a declaration in support of his motion (Doc.
89), and a statement of undisputed facts (Doc. 90).
Although Mr. Apodaca previously filed a
response to the Martinez Report (Doc. 69), a review of his motion for summary judgment reveals
that it is, in essence, an additional response to the Martinez Report, rather than a separate motion.
Given Mr. Apodaca’s pro se status, the Court will construe Mr. Apodaca’s motion for summary
judgment as an additional response to the Martinez Report and consider its contents in the
context of defendants’ motion for summary judgment.2
3. Request for Trial or Pretrial Hearing or Conference (Doc. 91)
Mr. Apodaca contends that he has gathered “every [ounce] of evidence” and requests that
this matter be set for trial.
The request is premature because the defendants have
The Honorable LeRoy Hansen referred this case to me to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case. Doc. 24. I will, therefore, issue a report and
recommendation with regard to the Martinez Report and defendants’ motion for summary
judgment. See Doc. 54 at 48–59.
moved to dismiss Mr. Apodaca’s claims, and they assert that they are entitled to summary
judgment as a matter of law.
Doc. 54 at 47–59. If defendants succeed on either motion, a trial
will be unnecessary. “The very purpose of a summary judgment action is to determine whether
trial is necessary.” White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
If the Court
determines that Mr. Apodaca has failed to state a claim for which relief can be granted, see FED.
R. CIV. P. 12(b)(6), or the defendants demonstrate that there is no genuine issue of fact and that
they are entitled to judgment as a matter of law, FED. R. CIV. P. 56(a), a trial will not be
necessary. If, on the other hand, the motions are denied, the Court will set this matter for trial.
Accordingly, Mr. Apodaca’s motion for a trial or pretrial conference or hearing is denied.
IT IS THEREFORE ORDERED that Mr. Apodaca’s Request for the Admission of
Documents (Doc. 83) is GRANTED;
IT IS FURTHER ORDERED that Mr. Apodaca’s request for discovery is DENIED;
IT IS FURTHER ORDERED that Mr. Apodaca’s Motion for Partial Summary Judgment
(Doc. 87) is construed as a part of his response to the Martinez Report and will be considered in
that context; and
IT IS FURTHER ORDERED that Mr. Apodaca’s Request for Trial or Pretrial Hearing or
Conference (Doc. 91) is DENIED.
United States Magistrate Judge
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