Diab v. Doe et al
ORDER FOR MARTINEZ REPORT by Magistrate Judge Gregory J. Fouratt. Martinez Report Due 10/26/2017. (kdj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Civ. No. 16-1002 MCA/GJF
FNU BACA, KEN SMITH, and
ORDER TO FILE A MARTINEZ REPORT
This matter is before the Court on a review of the record. On January 6, 2017, Chief U.S.
District Judge M. Christina Armijo dismissed all claims against New Mexico Department of
Corrections and the “John Doe” defendant, directing the Clerk of Court (“Clerk”) instead to
substitute “FNU Westerfield” for the previously-captioned John Doe defendant. Mem. Op.
Order 12-13, ECF No. 47. The Court left intact Plaintiff’s claims against Defendants Baca,
Smith, and Westerfield, and ordered the Clerk to issue notice and waiver of service forms to each
of the three (collectively, “Defendants”). Id. at 13. On August 11, 2017, Defendants jointly filed
an Answer to Plaintiff’s Complaint. ECF No. 48.
In a suit brought by a pro se prisoner, the Court may order defendants to investigate the
incident or incidents underlying a plaintiff’s lawsuit and submit a report of their investigation in
order to develop a factual or legal basis for determining whether a meritorious claim exists.
Martinez v. Aaron, 570 F.2d 317, 320 (10th Cir. 1978); see also, e.g., 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. See Hall v.
Bellmon, 935 F.2d 1106, 1111-12 (10th Cir. 1991); Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986) (“[D]istrict courts are widely acknowledged to possess the power to enter summary
judgments sua sponte, so long as the losing party was on notice that she had to come forward
with all of her evidence.”). When a Martinez Report is used for summary judgment purposes,
however, a pro se plaintiff must be afforded an opportunity to present conflicting evidence to
controvert the facts set out in the report. Hall, 935 F.2d at 1109. Accordingly, in addition to the
information requested by the Court herein, Defendants should submit whatever materials they
consider relevant to Plaintiff’s claims and their defenses. Plaintiff should do the same in his
Wherefore, IT IS HEREBY ORDERED that Defendants file a Martinez Report within 30
days of entry of this Order in accordance with the following:
Defendants’ Martinez Report must address in a written brief all of the
allegations against each Defendant as well as any defenses raised in their answer
that they wish to pursue. Defendants shall also include as attachments any
affidavits or documents relevant to any allegation or defense. The submission of
documents without an accompanying brief will not be considered in compliance
with this Order.
Allegations and defenses must be supported by factual assertions in the brief,
which, in turn, must be supported by proof, such as affidavits or documents that
are to be included as attachments.
The brief must also state whether policies or regulations pertaining to Plaintiff’s
allegations exist, and, if so, the relevant policies or regulations must also be
included as attachments.
Copies of all affidavits and documents included as attachments should be
arranged in a logical order and be Bates-stamped or otherwise be clearly serially
marked. Defendant must also provide affidavits to properly authenticate
The Court is aware that materials contained in corrections and law enforcement
files may be sensitive and that there may be valid reasons for keeping such
information secret. As such, Defendants may move to seal confidential portions
of documents submitted with the Martinez Report and provide a redacted version
of the Report to Plaintiff. If Defendants seek to seal or redact any portion of their
Report, they must file a motion to seal at least fourteen (14) days before the
Martinez Report filing and service deadline. The motion to seal shall describe
with specificity the type of documents Defendants wish to seal and shall assert the
reasons for nondisclosure.
Should Defendants choose to file a motion for summary judgment concurrently
with their Martinez Report, that motion shall be filed separate and apart from the
Report and must comply with the applicable federal and local rules of procedure,
with the following caveat: rather than file attachments to a motion for summary
judgment in support of the factual assertions therein, Defendants shall instead cite
to the Martinez Report. 1 Defendants must provide citations supporting their
assertions with specificity. At the very least, Defendants should direct Plaintiff
and the Court to the specific page or pages supporting an assertion.
The Court may strike any filing that fails to comply with this order.
IT IS FURTHER ORDERED that Plaintiff shall file and serve his response to the facts
contained within Defendants’ Martinez Report within thirty (30) days of its filing. If Defendants
file a motion for summary judgment, Plaintiff must file a separate response to that motion within
thirty (30) days. Defendants shall file and serve their reply, if any, to a motion for summary
judgment within fourteen (14) days of Plaintiff’s response. Defendants need not file a reply to
Plaintiff’s Response to the Martinez Report.
IT IS SO ORDERED.
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Under the Local Rules, “exhibits to a motion, response or reply” are not to exceed a total of fifty (50) pages unless
by agreement of the parties or with leave from the Court after the filing a motion. D.N.M.LR-Civ. 10.5. Given that
the Martinez Report will essentially serve as the parties’ exhibits to a summary judgment motion, response, and
reply, should such filings be made, the Court hereby grants leave for the Martinez Report to exceed the exhibit page
limit set forth in the Local Rules.
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