                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         SEP 19 1997
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


WILLIAM CARPENTER,

             Plaintiff-Appellant,
                                                       No. 97-6006
v.
                                                 (W. District of Oklahoma)
                                                  (D.C. No. 95-CV-1661)
DREW EDMONDSON; JACK
COWLEY,

             Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. 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       This order and judgment is not binding precedent, except under the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 and 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.
      William D. Carpenter appeals the grant of summary judgment in favor of

defendant on his pro se Eighth Amendment and 42 U.S.C. § 1983 civil rights

claims entered in the United States District Court for the Western District of

Oklahoma. After de novo review, the district court adopted the report and

recommendation prepared by the Magistrate Judge. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291, DENIES Carpenter’s Petition for Writ

of Mandamus, and AFFIRMS.

      At the time of the events which allegedly give rise to this cause of action,

Carpenter was incarcerated at the Oklahoma State Reformatory (“OSR”) in

Granite, Oklahoma. Carpenter alleged that on May 11, 1995, he was attacked by

three inmates who cut him with razor blades, leaving him with severe injuries. In

Count I of his Complaint against defendants, Carpenter claimed the incident and

his injuries were “the direct result of OSR staff negligence and a deliberate

attempt to put my life in jeopardy.” In Count II, Carpenter claimed medical

malpractice against the OSR medical staff for removing the stitches from his

wounds prematurely.

      At the request of the district court, the defendants filed a Martinez Report

pursuant to Martinez v. Aaron, 570 F.2d 317, 318-20 (10th Cir. 1978). The

defendants subsequently filed a motion to dismiss or, in the alternative, a motion

for summary judgment to which Carpenter responded. Treating the motion as one


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for summary judgment, the district court granted the motion, determining

Carpenter had “not offered affidavits or other evidence creating a genuine issue

for trial.”

       On appeal, Carpenter makes the following four claims: (1) the district court

erred in not requiring the defendants to comply with Federal Rule of Civil

Procedure 26(b); (2) the district court erred in failing to require appropriate

compilation of the Martinez report; (3) the district court erred in not considering

Carpenter’s evidence of sworn affidavits corroborating his claims; and (4) the

district court erred in allowing the magistrate judge to assume jurisdiction without

gaining written consent of both parties pursuant to 28 U.S.C. § 636(c).

       This court reviews a grant of summary judgment de novo. Applied Genetics

Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1998).

Carpenter’s first claim on appeal is that the defendants failed to comply with the

“initial disclosure” requirements of Federal Rule of Civil Procedure 26(a). Rule

26 of the Federal Rules of Civil Procedure requires “initial disclosure . . .

[e]xcept to the extent otherwise stipulated or directed by order or local rule.”

Fed. R. Civ. P. 26(a)(1). Rule 26.2(e) of the Local Rules of the United States

District Court for the Western District of Oklahoma specifically exempts

“prisoner” cases from initial disclosure requirements. Carpenter makes no claim

that Local Rule 26.2(e) violates his rights, but merely argues that the district court


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should have required compliance with Federal Rule of Civil Procedure 26.

Because Rule 26 is not applicable to this case, Carpenter’s claim is without merit

and the district court did not err.

      Carpenter’s second claim is that the district court did not require the

defendants to follow the appropriate procedures in compiling their Martinez

Report. See Martinez, 570 F.2d at 318-20 (10th Cir. 1978). Carpenter claims the

court should have required defendants to interrogate certain parties. Contrary to

Carpenter’s assertions, however, there is no required procedure for reports

ordered under Martinez. 1

      With respect to Carpenter’s third claim, that the district court failed to

consider his evidence of corroborating affidavits, this court determines the district

court did not err. The standard for a summary judgment motion is that there is

“no genuine issue of material fact and that the moving party is entitled to


      1
       Carpenter cites Martinez for the proposition that certain procedures are
required, quoting:
      [t]he trial court ordered before answer that prison officials conduct
      an investigation of the incident to include an interrogation of those
      concerned. The transcripts of the interrogations, . . . and explanation
      by the officials were to be attached to the answer of the defendants.
             ....
             We consider this order and practice to be not only proper but
      necessary for the orderly consideration of the issues in this case and
      other cases of this nature.
Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). This language alone,
however, does not mandate courts to require interrogation of specific people for
each Martinez report and nothing in Martinez so requires. See id.

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judgment as a matter of law.” Fed. R. Civ. P. 56(c). The Supreme Court has held

that there is no genuine issue of material fact unless the non-moving party

presents sufficient evidence for a reasonable jury to return a verdict in favor of

that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986).

Summary judgment may be granted if the non-moving party’s evidence is merely

colorable and not sufficiently probative. See id. at 249-50.

      Having considered the evidence contained in Carpenter’s affidavits, the

district court determined there was no genuine issue of material fact. Carpenter’s

affidavits supported his claim that the OSR Warden had made public statements

about him. Carpenter then argues that his attackers were motivated by this

statement and that the warden had conspired to cause the attack against Carpenter.

As the district court noted, however, “[t]hese contentions are supported only by

vague and conclusory references to statements made by [the warden] in an

interview and without any cogent showing that the attackers or other officials are

connected with the shadowy drug conspiracy that purportedly targeted the

plaintiff.” This court agrees that there was no genuine issue of material fact

presented and the district court thus did not err.

      Carpenter’s fourth and final claim is that the district court erred in referring

the case to the Magistrate Judge for a report and recommendation without

Carpenter’s consent pursuant to 28 U.S.C. § 636(c). The referral in this case,


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however, was pursuant to 28 U.S.C. § 636(b)(1)(B) which allows the district court

to refer matters to the magistrate judge in order to make findings and prepare a

report and recommendation, which the district court then reviews de novo.

Although Section 636(c) requires consent of both parties, no such requirement

exists as to Section 636(b)(1)(B). The district court thus did not err in referring

the matter to the magistrate judge without first gaining Carpenter’s consent.

      For the foregoing reasons, this court DENIES Carpenter’s Petition for Writ

of Mandamus and AFFIRMS the ruling of the district court below.

                                                ENTERED FOR THE COURT,



                                                Michael R. Murphy
                                                Circuit Judge




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