United States District Court, D. New Mexico
ORDER TO FILE A MARTINEZ REPORT
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on review of the record. On May
21, 2018, the Court dismissed Plaintiff's claims against
Defendant Bernalillo County Metropolitan Detention Center.
Doc. 11. The Court left intact Plaintiff's
claims against the individual defendants Sanchez, Delgado,
Kendo, and Olivas and ordered the Clerk to issue notice and
waiver of service forms to the remaining Defendants.
Id. On September 13, 2018, Defendants collectively
filed an Answer to Plaintiff's Complaint. Doc.
suit brought by a pro se prisoner, the Court may
order the 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 her response.
IT IS HEREBY ORDERED that Defendants file a Martinez
Report within thirty (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 Plaintiffs response. Defendants need
not file a reply to Plaintiffs Response to the