Khan v. Barela et al

Filing 146

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING IN PART 128 Plaintiff's Motion for Order Directing Preparation of Martinez Report. Defendants' Martinez Report is due by September 7, 2021. Plaintiff's response is due by October 21, 2021. Defendants' reply is due by November 8, 2021. (rcf)

Case 2:15-cv-01151-MV-SMV Document 146 Filed 07/19/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIK KHAN,
Plaintiff,
v.

No. 15-cv-1151 MV/SMV

CHRIS BARELA, BOARD OF COUNTY
COMMISSIONERS OF DOÑA ANA COUNTY,
ARAMARK CORPORATION,
BILL STICKLES, and DAVID BEAM,
Defendants.1
ORDER TO SUBMIT MARTINEZ REPORT
THIS MATTER is before the Court on Plaintiff’s Motion for Order Directing Preparation
of Martinez Report [Doc. 128], docketed on October 13, 2020. Defendants2 filed no response, and
the time for doing so has passed. Plaintiff sued Defendants pursuant to 42 U.S.C. § 1983 seeking
monetary damages. See generally [Doc. 100]. Plaintiff complains that the policies, practices, or
customs of Defendants directly caused multiple violations of his constitutional rights while he was
detained at the Doña Ana County Detention Center (“DACDC”) over the course of four years as
a pretrial detainee. See id. Having considered the Motion, the record, and the relevant law, and
being otherwise fully advised in the premises, the Court will grant the Motion in part as described
herein.

1

This caption reflects the Defendants listed in the Third Amended Complaint, except that Plaintiff substituted
Defendant David Beam for the John Doe Defendant on June 24, 2020. [Docs. 100, 109]. Moreover, Defendants
Bill Stickles and David Beam were dismissed as parties on November 6, 2020. [Doc. 133]. Finally, in its Motion to
Dismiss, Defendant Aramark states that its proper name is “Aramark Correctional Services, LLC.” [Doc. 123].
2
Claims remain pending against three Defendants: Chris Barela (“Barela”), Board of County Commissioners of Doña
Ana County (“Board”), and Aramark Correctional Services, LLC (“Aramark”).

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Order for the Martinez Report
In order to develop a record sufficient to ascertain whether there are any factual or legal
bases for Plaintiff’s claims,3 Defendants are ORDERED to submit materials that will help the
Court resolve Plaintiff’s claims, in the form of a Martinez report, as explained herein.
In a suit brought by a pro se prisoner, the court may order the defendants to investigate the
incidents underlying the suit and to submit a report of the investigation, known as a “Martinez
report.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991); see Martinez v. Aaron, 570 F.2d
317, 319–20 (10th Cir. 1978) (affirming the propriety and necessity of such reports). The Martinez
report assists the court in determining whether there is a factual and legal basis for the prisoner’s
claims. Hall, 935 F.2d at 1109. The court may use the Martinez report in a variety of procedural
situations, including when deciding whether to grant summary judgment, either on motion or
sua sponte. Id. at 1109–11; Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (noting that district
courts have the power to enter summary judgment sua sponte, as long as the opposing party was
on notice). However, the prisoner must be given an opportunity to present evidence to controvert
the facts set out in the report. Hall, 935 F.2d at 1109.
In this case, there are claims against multiple defendants and groups of defendants who are
separately represented by counsel. Not all of the claims pertain to every defendant. Accordingly,
the Court will order the separately represented defendants and groups of defendants to submit

separate Martinez reports addressing only the allegations made against them. Defendants’

3

Plaintiff alleges that he was detained at DACDC between May 9, 2012, and June 29, 2016, and all of his claims arise
from events during those four years. [Doc. 100] at 2, ¶ 5. Therefore, all materials submitted by Defendants must
address the claims over the course of those four years.

2

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Martinez report must address the allegations against them as well as any defenses raised in their
answer that they wish to pursue.
Aramark
Plaintiff alleges that he was deprived of his right to receive information because the
policies, practices, or customs of Aramark (together with other Defendants) prevented him from
accessing hardcover books, newspapers, and newspaper clippings. Id. at 7–9, 19–21. Plaintiff
claims Defendants’ complete prohibition was without a legitimate penological justification and no
reasonable alternatives were available. Id. at 19. Aramark must file a Martinez report addressing
these allegations. This is the only claim Aramark’s report must address.
Barela and the Board
Plaintiff makes the same allegations regarding his right to receive information against
Barela and the Board. It is not clear whether the policies and procedures described by Plaintiff are
policies and procedures of Barela and the Board or of Aramark. Barela and the Board must also
file a Martinez report addressing these allegations.
Second, Plaintiff alleges that he was unreasonably strip searched—including body-cavity
visual inspections—on multiple occasions in 2016 after returning from the courthouse and medical
trips because of Defendants’ policies, practices, or customs. Id. at 9–13, 21–22. Plaintiff asserts
that not all inmates4 were strip searched before entering the general population after outside
contact. Id. at 13. Rather, he alleges that he was strip searched as a punishment, pursuant to
Defendants’ policies, for exercising his rights to access the courts and medical care. Id.

4

Although Plaintiff was a pretrial detainee at the time, the Court uses the term “inmate(s)” throughout this Order for
simplicity and consistency.

3

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Third, Plaintiff alleges that Defendants’ policies, practices, or customs violated his right to
exercise his religion. Id. at 23. Plaintiff complains that Defendants’ policies prevented him from
receiving a clock, prayer schedule, Muslim calendar, and a diet accommodation during Ramadan.
Id. at 14, 23. Moreover, when Defendants updated their meal accommodation policy to allow for
Ramadan accommodations, Plaintiff was served ham. Id. at 14–15. Plaintiff alleges that
Defendants’ policies placed a substantial burden on his right to freely exercise his religion, without
a rational basis, with the intent to punish him, and that Defendants were deliberately indifferent to
his free exercise rights. Id. at 23.
Fourth, Plaintiff alleges that Defendants established Christianity as the religion of
DACDC, in violation of the Establishment Clause. Id. at 19. Plaintiff complains that Defendants
officially promoted Christianity through “movie presentations, group sermons, free Bible studies,
access to Christian literature, and/or free Bibles.” Id. at 24. For example, Plaintiff alleges that
DACDC employees officially introduced Christian ministers and compelled inmates to be
respectful and listen to their sermons. Id. at 17–18, 24. He further alleges that one DACDC
employee himself preached multiple sermons to inmates. Id. at 18. Plaintiff also asserts that
Christian volunteers5 and inmates were routinely permitted to disregard security protocols, such
as when volunteers freely entered housing units without officer escorts and when officers allowed
Christian prayers circles despite mandatory lockdowns. Id. at 16–18. Plaintiff alleges that
Defendants’ policies did not have a secular purpose, had a primary effect of advancing Christianity,
and fostered government entanglement with religion. Id. at 25.

5

Plaintiff explains that DACDC allows religious “volunteers” to enter the facility to provide religious services for
inmates. [Doc. 100] at 15. The Court uses the term “volunteer” to refer to such persons.

4

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Finally, Plaintiff alleges that Defendants, with the intent to discriminate, deprived him of
equal protection of the law, based on his Muslim faith, and without legitimate penological
justification. Id. at 15–16, 25. Plaintiff complains that Christian inmates had disproportionate
access to religious group activities, Christian volunteers for religious counsel, free access to a
religious library with Christian materials, and greeting cards with Christian religious messages;
nothing comparable was provided for similarly situated Muslim inmates. Id. at 25–26. Moreover,
Plaintiff asserts that Defendants sought out, supported, and introduced Christian speakers to
address inmates but did not do the same for speakers of other religions, such as Islam. Id. at 26.
Furthermore, Plaintiff alleges that when he met with a Muslim religious volunteer to celebrate a
religious feast, Plaintiff was handcuffed to a table; Christian inmates were never handcuffed for
religious meetings, and Christian volunteers were able to freely enter the housing unit without
officer escorts. Id. at 16–17.
Directions for Preparing the Martinez Report
Defendants’ Martinez reports must address the allegations against them as well as any
defenses raised in their answers that they wish to pursue. Defendants must abide by the following
instructions in preparing their reports.
1. Mail Claims and Strip Search Claim
Specifically, Defendants must produce all materials relevant to Defendants’ policies,
practices, or customs regarding inmate mail (particularly hardcover books, newspapers, and
newspaper clippings) and strip searches, including, but not limited to: any written or unwritten
mail and strip search policies, what entity had authority over the policies’ creation and
implementation, any information related to the rationale for the policies, a list of Plaintiff’s rejected

5

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mail (if one exists) with the reasons for each rejection, a list of each time Plaintiff was strip
searched at DACDC (if one exists) with the reason for each strip search, any grievances submitted
by Plaintiff regarding mail or strip searches, and any and all pertinent policies and procedures.
2. Religious Claims
Defendants must also produce all materials relevant to Defendants’ policies, practices, or
customs regarding religious accommodations, activities, and resources for inmates, including, but
not limited to: diet accommodations, religious item accommodations, services, literature
(including a list of book titles contained in the Chaplain’s office), group activities, any compulsory
religious sermons, practices for recruiting religious volunteers, security protocols regarding group
activities and meetings with religious volunteers, what entity had authority over the relevant
policies’ creation and implementation, any information regarding oversight and/or training of
Good News employees, any information regarding DACDC employees giving sermons, any
memoranda from Chaplains Bill Stickles or David Beam that were explicitly or tacitly approved
by Defendants, a list of expenditures spent by Defendants on religious programs or services or
activities, a sworn statement describing the number of religious volunteers admitted to DACDC
and their religious affiliation, any information regarding Plaintiff’s requests for religious
accommodations, any grievances submitted by Plaintiff regarding his religious complaints, and
any and all pertinent policies and procedures.

6

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3. Additional Instructions (General)
Defendants must also produce all job descriptions for the DACDC Director position, any
performance reviews of Barela, and any training materials and policies for employees, contractors,
and volunteers about the constitutional rights of inmates.6
In addition, Defendants must abide by the following instructions in preparing their report:
1) The report must include a written brief that discusses Plaintiff’s claims. Factual
assertions in the briefs must be supported by proof, such as affidavits or documents. See Hayes v.
Marriott, 70 F.3d 1144, 1147–48 (10th Cir. 1995).
2) The report must state whether records pertaining to the allegations exist.
3) The report must state whether policies or regulations addressing the allegations exist.
4) If relevant records, policies, or regulations do exist, copies must be included as
attachments to the reports. The attachments should be arranged in a logical order and must be
properly authenticated by affidavits. See Farmers All. Mut. Ins. Co. v. Naylor, 452 F. Supp. 2d
1167, 1176–77 (D.N.M. 2006).
In addition, Defendants shall provide a Vaughn index7 that includes a substantial
description of any documents Defendants contend should not be disclosed. In camera review of
those documents may be required by further Court order.

6

Plaintiff’s Motion contained a list of 20 specific categories of requested materials. The Court considered each of
them and, where appropriate, included the requested materials in the above list. The requests for materials not
mentioned in this Order are denied because the requests were either too broad or the materials were publicly available
or not relevant.
7
A Vaughn index is a compilation prepared by the government agency . . . listing each of the withheld documents and
explaining the asserted reason for its nondisclosure.” Anderson v. Dep’t of Health & Hum. Servs., 907 F.2d 936,
940 n.3 (10th Cir. 1990) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)).

7

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The Martinez report must be filed and served on Plaintiff no later than September 7, 2021.
Plaintiff must file his response or objections to the report no later than October 21, 2021.
Defendants must file their reply, if any, no later than November 8, 2021.
The parties are hereby given notice that the Martinez report may be used in deciding
whether to grant summary judgment, either by motion or sua sponte. Therefore, the parties
should submit whatever materials they consider relevant to Plaintiff’s claims.8
IT IS SO ORDERED.
_______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

8

Plaintiff requests “that the parties be directed to file a separate motion for summary judgment at a time they deem
appropriate because his investigation is still ongoing.” [Doc. 128] at 6. This request is denied. If Plaintiff “shows by
affidavit or declaration that, for specified reasons, [he] cannot present facts essential to justify [his] opposition” to the
motion for summary judgment, he may ask for the material(s) he wants at that time. Fed. R. Civ. P. 56(d) (emphasis
added).

8