                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            DEC 19 2003
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 JERRY WILLIAM DICKEY,

               Plaintiff-Appellant,                      No. 03-4073
          v.                                     (D.C. No. 2:97-CV-782-TC)
 J. MERRICK, Lieutenant;                                     (D. Utah)
 MATTINGLEY, Sgt.; BEEMUS, Lt.;
 NELSON, Officer; GAMVROULAS,
 Officer; RENFRO, Officer,

               Defendants-Appellees.


                           ORDER AND JUDGMENT            *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Plaintiff Jerry Dickey, appearing pro se, appeals the district court’s grant of

Defendants’ motion for summary judgment. We exercise jurisdiction under 28

U.S.C. § 1291.



      *
       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 case 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff’s suit arises from beatings that he suffered at the hands of other

inmates on October 16, 1995, and April 30, 1996, at the Salt Lake Metro Jail,

where he was incarcerated while awaiting trial for murder. Defendants were jail

officials at the time. Plaintiff sued under 42 U.S.C. § 1983, alleging that

Defendants violated the Fourteenth Amendment by failing to protect him from his

fellow inmates.

      The United States District Court for the District of Utah, following

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), ordered a report on the

incidents. After receiving the report, the court granted summary judgment to

Defendants. The district court held that Plaintiff had failed to exhaust available

administrative remedies on his claim arising from the April 30, 1996, assault, and

that Plaintiff could not demonstrate deliberate indifference to his safety by jail

officials prior to the October 16, 1995, assault. We must reverse and remand,

however, because Defendants never filed a motion for summary judgment.

      Plaintiff’s appeal presents four issues. Plaintiff contends that (1) he

exhausted all available remedies on his claims; (2) he has adequately

demonstrated Defendants’ deliberate indifference; (3) he received inadequate

notice of summary judgment requirements and did not receive Defendants’ motion

for summary judgment; and (4) the district court improperly denied his request for




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appointed counsel. Our resolution of the third issue is sufficient to decide this

appeal.

Procedural History

      Plaintiff filed his original complaint in October 1997. On December 1,

1997, the district court dismissed Plaintiff’s complaint without prejudice for

failure to exhaust administrative remedies. Plaintiff appealed, and on

September 2, 1998, we reversed and remanded, ruling that it was clear from the

record that Plaintiff had exhausted at least one of his six claims, and unclear that

he had failed to exhaust the others. See Dickey v. Kennard, 156 F.3d 1243 (10th

Cir. 1998) (unpublished).

      After the district court dismissed certain claims and defendants, Plaintiff

filed an amended complaint, which Defendants answered. The magistrate judge

subsequently directed Defendants to prepare a Martinez report addressing

Plaintiff’s failure-to-protect claims and whether Plaintiff had exhausted

administrative remedies on these claims. The order concluded:

      The report shall be filed within forty-five (45) days of this Order and
      will clearly state, along with the report, if the defendants are seeking
      summary judgment pursuant to Rule 56 of the Federal Rules of Civil
      Procedure. The plaintiff may file a response within thirty (30) days
      of [service] of the Martinez report.

R., Vol. II, Doc. 64.




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      Defendants filed the report on June 16, 2000. On the final page of the

report, Defendants state, “For the foregoing reasons, [Defendants] respectfully

request that the court find that [Plaintiff’s] claim of failure to protect is frivolous

and should be dismissed.” Aplee. App. at 168. But they then add, “If the court

finds insufficient evidence to dismiss [Plaintiff’s] case based upon the filing of

this Martinez report, the defendants will file a Motion for Summary Judgment

pursuant to [Rule] 56 of the Federal Rules of Civil Procedure.” Id. (emphasis

added). Defendants certified that they mailed a copy of the report to Plaintiff on

June 16, 2000.

      According to the district court’s docket sheet, the Martinez report was

docketed both as a report and as a motion for summary judgment, apparently on

February 27, 2001. There is no indication in the record on appeal that the district

court ever informed Plaintiff that it would treat the report as a motion for

summary judgment. Plaintiff did not respond to the report, and never filed a

response to a motion for summary judgment.

      The district court then required Defendants to supplement the Martinez

report to clarify factual issues regarding the grievance process at Salt Lake Metro

Jail. On February 19, 2003, the district court granted summary judgment to

Defendants. The district court denied, without explanation, Plaintiff’s motion for

reconsideration, and Plaintiff timely appealed to this court.


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Notice of Summary Judgment

      Plaintiff argues on appeal that “[t]he lower court issued a ruling based on a

motion for summary judgment that I never received or was given useful

instructions on procedures to effect a summary judgment.” Aplt. Br. at 4.

Defendants do not address this argument in their brief. Plaintiff preserved this

issue below when he argued in his motion for reconsideration that he lacked

notice that the district court intended to treat the Martinez report as a motion for

summary judgment.

      We have previously stated that “[a] Martinez report is treated like an

affidavit,” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), and “Martinez

reports have been used in this circuit almost exclusively to provide the court

preliminary information, furnished by prison administration personnel, in pro se

cases brought by prisoners against prison officials,” Ketchum v. Cruz, 961 F.2d

916, 920 n.3 (10th Cir. 1992). Thus, a Martinez report ordinarily is not a motion,

much less a motion for summary judgment.

      But even assuming that there are situations in which a Martinez report may

be construed as a motion, this was not such a case. The magistrate judge

instructed Defendants to “clearly state, along with the report, if the defendants are

seeking summary judgment . . . .” R., Vol II., Doc. 64. Defendants stated, at the

end of the report, “If the court finds insufficient evidence to dismiss [Plaintiff’s]


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case based upon the filing of this Martinez report, the defendants will file a

Motion for Summary Judgment . . . .” Aplee. App. at 168. This was not a clearly

stated motion for summary judgment.

      As we wrote in Hall, “[d]istrict 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.” 935 F.2d at 1111 (internal

quotation marks omitted). Failure to provide proper notice requires reversal here.

Conclusion

      REVERSED and REMANDED to the district court for further proceedings.

Plaintiff’s motion to proceed without prepayment of the appellate filing fee is

GRANTED. We remind Plaintiff that he remains obligated to make partial

payments toward the appellate filing fee until it is paid in full.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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