KAREN MOLZEN, Magistrate Judge.
In this pro se prisoner civil rights matter, the court previously dismissed Plaintiff's access to the courts claim and theories of recovery against certain defendants on the basis of respondeat superior. See Doc. 7. Thereafter, the remaining defendants answered. See Doc. 9. The matter is now before me sua sponte upon a review of the record, where I note that all of Plaintiff's remaining claims are related to his assertions of denial of medical care.
Although Defendants' last affirmative defense is failure to exhaust administrative remedies, see id. at 5, a month has elapsed since they filed their Answer and Defendants have not moved to dismiss on that basis. Under Martinez v. Aaron, 570 F.2d 317, 320 (10th Cir. 1978), this court may order defendants to investigate the incident or incidents underlying plaintiff's lawsuit and submit a report of their investigation in order to develop a factual or a legal basis for determining whether a prisoner plaintiff has a meritorious claim. See, 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 motion for summary judgment or sua sponte entry of summary judgment. When a 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 forth in the report. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Wherefore, to assist the court in evaluating plaintiff's claims in this matter,
IT IS HEREBY ORDERED THAT:
1. Defendants prepare a Martinez report, accompanied by a dispositive motion, that addresses the denial of medical care and related matters alleged in Plaintiff's Complaint by:
(a) setting forth the facts needed to resolve the claims, e.g, names of corrections officials and other inmates who directly dealt with Plaintiff during the alleged incidents or witnessed the alleged incidents; whether records exist pertaining to the events; whether prison policies or regulations address the situation;
(b) providing copies of those records and documents that do exist, including but not limited to: incident reports; inmate misconduct reports; grievances kited by Plaintiff and decisions made by corrections officials in response; and copies of any prison policies or regulations that address the situation; and (c) providing affidavits in support of the report, if necessary;
2. The documents submitted with the report may be submitted simultaneously with the report, but the submission of documents alone, or documents submitted with an index but without an accompanying report, shall not be considered in compliance with this order. However, the court is aware of the potential sensitivity of the materials contained in corrections files and that there may be valid reasons for keeping secret much of the content of a corrections file. As such, Defendants may redact confidential portions of documents submitted with the report and also submit a memorandum setting forth any objections they may have to Plaintiff being permitted to review any portion of the report and its
attachments. If Defendants do not submit such materials with the report, Plaintiff shall be permitted to review the contents of the entire report as submitted;
3. Defendants submit their report and dispositive motion by September 30, 2003;
4. Defendants serve a copy of the report and motion on Plaintiff, who shall file his response by October 31, 2003; and 5. Defendants file their reply by November 14, 2003.
THE PARTIES ARE HEREBY GIVEN NOTICE that the Martinez Report may be used in deciding whether to grant summary judgment on Plaintiff's claims, whether by motion or sua sponte; as such, the parties should submit whatever materials they consider relevant to Plaintiff's claims. See Hall, 935 F.2d 1106.