United States District Court, D. New Mexico
ORDER TO FILE A MARTINEZ REPORT
HONORABLE GREGORY J. FOURATT, MAGISTRATE JUDGE.
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.
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 response.
IT IS HEREBY ORDERED that Defendants file a Martinez
Report within 30 days of entry of this Order
in accordance with the following:
1. 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.
2. 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.
3. 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
4. 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 submitted documents.
5. 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.
6. 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. 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.
7. The Court may strike any filing that fails to comply with
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 Plaintiffs Response to the