                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 26 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 FRANCISCO GONZALEZ-
 LIRANZA,

          Plaintiff-Appellant,
                                                        No. 99-2302
                                                 (D.C. No. CIV-98-997-JP)
 v.
                                                       (New Mexico)
 JOHNNY NARANJO, Sgt.,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Mr. Gonzalez was injured when he was attacked by other inmates while a

pretrial detainee in the Bernalillo County Detention Center. He filed a pro se

civil rights complaint under 42 U.S.C. § 1983 alleging constitutional violations

against Sargeant Naranjo, who was a correctional officer at the facility, as well as

against the facility administrator and the facility itself. In his verified complaint,

Mr. Gonzalez alleged that he asked Sargeant Naranjo to move him out of the

section in which he was housed because he was having problems with other

inmates and feared for his safety. He alleged that Sargeant Naranjo took no

action other than to respond that if Mr. Gonzalez did not want problems he should

have stayed in Cuba. Mr. Gonzalez further alleged that about one hour later, as

another officer advised him to check into protective detention, he was attacked by

fifteen or twenty other inmates and beaten with broom and mop handles. He

suffered a serious eye injury, and alleges that as a result he cannot see out of that

eye and has severe headaches. He alleged that his constitutional rights were

violated when Sargeant Naranjo failed to take prompt measures to ensure his

safety after having notice that he was in danger.

      The district court sua sponte dismissed the claims against all defendants

except Sargeant Naranjo, 1 who moved for summary judgment. The court ordered

the preparation of a Martinez report, see Martinez v. Aaron, 570 F.2d 317 (10th


      1
          Mr. Gonzalez does not pursue these claims on appeal.

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Cir. 1978) (en banc).

      Mr. Gonzalez argued in the district court that he was denied an appropriate

opportunity to respond to Sargeant Naranjo’s motion for summary judgment and

the Martinez report. 2 We agree. The motion for summary judgment and

accompanying memorandum were filed March 12, 1999. The order for a Martinez

report was entered March 15. Two weeks later, Mr. Gonzalez’ copy of the March

15 order was returned undelivered and the court determined that it did not have

Mr. Gonzalez’ current address. The court then entered a show cause order

requiring Mr. Gonzalez to show why the action should not be dismissed for

failure to comply with local rules.

      The record further reflects that Mr. Gonzalez subsequently sent a

handwritten note to the court stating that after he had heard nothing from the

court or defense counsel, he became concerned and called the pro se clerk at the

court to verify receipt of his change of address. The clerk informed him that no

change of address had been received and further informed him that a show cause

order had been entered. Although the district court thereafter vacated the show


      2
        Although Mr. Gonzalez did not formally brief this issue on appeal, he
attempted to supplement the record by submitting to this court affidavits from
eyewitnesses supporting his version of the facts. Because “[a] pro se litigant’s
pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers,” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991), we conclude that Mr. Gonzalez has impliedly raised this issue for our
review.

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cause order, the record does not reflect that Mr. Gonzalez ever received the

motion for summary judgment, the memorandum in support, or the order directing

the preparation of the Martinez report. These items are critical because they

informed Mr. Gonzalez of the arguments he would have to be prepared to meet,

and informed him that the report would be used in deciding whether to grant

summary judgment and that he should therefore submit whatever materials he

wished to support his claim. Despite the fact that in his objections to the

Martinez report Mr. Gonzalez pointed out that he had never received a copy of the

summary judgment materials and would file a response after he had been served,

the magistrate judge accepted the version of events set out in the report as

undisputed and recommended that summary judgment be granted. In so doing, the

magistrate judge faulted Mr. Gonzalez for failing to present factual evidence to

controvert the summary judgment motion he had, in fact, never received. Mr.

Gonzalez objected to the magistrate’s report and again pointed out that he had

never received defendant’s material and therefore had not been given the chance

to properly respond. The district court adopted the report and granted summary

judgment without addressing Mr. Gonzalez’s failure to receive the materials.

      We conclude the district court erred in adopting the report and granting

summary judgment before Mr. Gonzalez had received the summary judgment

materials and the Martinez report and had been allowed to respond to them. See


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Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); Jaxon v. Circle K Corp.,

773 F.2d 1138, 1140 (10th Cir. 1985).

      The rights of pro se litigants require careful protection where highly
      technical requirements are involved, especially when enforcing those
      requirements might result in a loss of the opportunity to prosecute or
      defend a lawsuit on the merits.

            District courts must take care to insure that pro se litigants are
      provided with proper notice regarding the complex procedural issues
      involved in summary judgment proceedings.

Jaxon, 773 F.2d at 1140 (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.

1984)). Here Mr. Gonzalez repeatedly called the court’s attention to the fact that

he had not received defendant’s filings. Moreover, Mr. Gonzalez clearly

understood the need to submit a response to defendant’s material and repeatedly

requested the opportunity to do so after he had been provided that material. The

grant of summary judgment under these circumstances was improper.

      Moreover, it appears to us that summary judgment may have been

inappropriate in any event due to the existing conflict in the material before the

district court. Characterizing the Martinez report as presenting “undisputed

facts,” the magistrate judge stated that “[o]ther than only Plaintiff’s bald assertion

in the complaint, there is no evidence that Plaintiff asked to be moved.” Rec.,

vol. I, doc. 25 at 2, 5. In so doing, the magistrate judge disregarded our cases

addressing the function of a Martinez report in summary judgment proceedings.

      The evidence must, of course, be viewed most favorably to the nonmoving

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party. Hall, 935 F.2d at 1111. When, as here, a plaintiff’s complaint is based on

facts within his personal knowledge and has been sworn under penalty of perjury,

it is to be treated as an affidavit. 3 Id. We have held on numerous occasions that

if the facts described in a Martinez report conflict with those set out in such a

verified complaint, summary judgment may not be granted because such a conflict

creates an issue of fact. See, e.g., Green v. Branson, 108 F.3d 1296, 1302 (10th

Cir. 1997); Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995); Mosier v.

Maynard, 937 F.2d 1521, 1524 (10th Cir. 1991); Hall, 935 F.2d at 1111. The

conflict here concerns the material issue of whether Sargeant Naranjo knew that

Mr. Gonzalez’ physical safety was threatened and failed to take appropriate

action. Our review of Mr. Gonzalez’ complaint and the material contained in the

Martinez report convinces us that a factual dispute exists on this critical issue and

that summary judgment was therefore not proper.

      We REVERSE the district court’s grant of summary judgment in favor of

Sargeant Naranjo and REMAND with instructions to proceed on Mr. Gonzalez’s

section 1983 claim. We remind Mr. Gonzalez that he is required to continue his




      3
        We recognize that allegations in a complaint will not create a fact issue if
they are conclusory. See Hall, 935 F.2d at 1111. The allegations in Mr.
Gonzalez’ complaint, however, are specific.

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partial payments of the costs and fees associated with this suit until the fees owed

to the district court and to this court are fully paid.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge




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