State of Arizona v. Usdc-Azt ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: STATE OF ARIZONA; TERRY 
GODDARD; PAUL CARTER; DORA B.
SCHRIRO,
STATE OF ARIZONA; TERRY L.
GODDARD, Arizona Attorney
General; PAUL CARTER, Assistant
Attorney General; DORA B. No. 07-70300

SCHRIRO, Director of the Arizona D.C. No.
Department of Corrections, CV-04-00235-FRZ
Petitioners,
OPINION
v.
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
ARIZONA,
Respondent,
ROBERT V. TUZON,
Real Party in Interest.

Petition for Writ of Prohibition
Submitted May 7, 2007
Filed June 9, 2008
Before: Alex Kozinski, Chief Judge, Ronald M. Gould and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion
6537
IN RE: STATE OF ARIZONA 6539
COUNSEL
Paul E. Carter, Dennis P. Schaack, and Terry Goddard, Phoe-
nix, Arizona, for the petitioners.
6540 IN RE: STATE OF ARIZONA
Hon. Frank R. Zapata, Phoenix, Arizona, for the respondent.
Robert V. Tuzon, Tucson, Arizona, for the real party in inter-
est.
OPINION
PER CURIAM
This is a petition for a writ of prohibition. Petitioners—
State of Arizona, its Attorney General Terry Goddard and
Assistant Attorney General Paul E. Carter1 —seek our inter-
vention, pursuant to 28 U.S.C. § 1651(a), to prohibit the dis-
trict court from enforcing portions of a scheduling order
entered in a prisoner civil rights lawsuit filed by real party in
interest Robert V. Tuzon. Petitioners object to provisions of
the order that call for petitioners to undertake a review of the
subject matter of Tuzon’s amended complaint, and to file a
report with the district court about their findings. We
requested a response from the district court because the pro-
priety of the district court’s order is an issue of first impres-
sion in this circuit. We have reviewed the responses from the
district court, petitioners and the real party in interest, as well
as the record of the district court case, and we deny the peti-
tion.
I. FACTS AND PROCEDURAL HISTORY
On May 6, 2004, Tuzon filed a complaint seeking relief
under 42 U.S.C. § 1983. On March 1, 2005, the district court
screened the complaint, granted Tuzon in forma pauperis sta-
tus and directed that the complaint be served. On January 17,
2006, Tuzon filed an amended complaint alleging, inter alia,
damages in connection with (1) an attack on Tuzon by other
1
Petitioners have filed a motion to add Dora B. Schriro, Director of the
Arizona Department of Corrections, as a petitioner. We grant that motion.
IN RE: STATE OF ARIZONA 6541
inmates on September 17, 2003; (2) confiscation of Tuzon’s
legal documents by prison library staff in December 2003; (3)
confiscation of Tuzon’s money in July 2003, and ongoing
through the date of the complaint; and (4) inadequate medical
treatment.
On April 3, 2006, after screening the amended complaint,
the district court dismissed certain claims and defendants
without prejudice, and directed the remaining defendants to
file answers to the remaining claims. The district court con-
cluded that Tuzon had stated claims for deliberate indiffer-
ence to his safety and for denial of access to the courts. The
district court dismissed claims that defendants had confiscated
Tuzon’s personal property and had been deliberately indiffer-
ent to his medical needs.
The defendants duly served three separate answers. After
the final one was filed, the district court issued the scheduling
order that is the subject of this petition. The order requires
that defendants review the subject matter of the complaint in
order: (1) to ascertain the facts and circumstances underlying
the complaint; and (2) to consider whether any action can and
should be taken by the institution or other appropriate offi-
cials to resolve the subject matter of the complaint. Defen-
dants were further ordered to file a written report with the
court, which includes: (1) a thorough explanation of the
actions described in the complaint; (2) the results, if any, of
the review undertaken by officials responsible for the institu-
tion; (3) affidavits to support any facts alleged in the report;
and (4) copies of any documents pertaining to the administra-
tive record. The remainder of the order schedules various
deadlines for discovery and motions practice.
Defendants’ response to the order was due on January 12,
2007. On January 10, 2007, defendants filed a motion to dis-
miss the complaint, alleging that Tuzon failed to exhaust his
claims because he did not complete available administrative
grievance procedures with respect to any of the counts alleged
6542 IN RE: STATE OF ARIZONA
in the complaint. On July 27, 2007, the district court granted
in part and denied in part defendants’ motion to dismiss, and
further stayed enforcement of the order pending disposition of
this petition.
II. DISCUSSION
Standard of Review
In determining whether a writ of prohibition should issue,
we consider the following factors: (1) whether the party seek-
ing the writ has no other adequate means, such as direct
appeal, to attain the desired relief; (2) whether the petitioner
will be damaged or prejudiced in a way that is not correctable
on appeal; (3) whether the district court’s order is clearly erro-
neous as a matter of law; (4) whether the district court’s order
is an oft-repeated error or manifests a persistent disregard for
the federal rules; and (5) whether the district court’s order
raises new and important problems or issues of law of first
impression. Calderon v. U. S. Dist. Court, 134 F.3d 981, 983
& n.3 (9th Cir. 1998). Although all five factors need not be
satisfied for the writ to issue, the absence of clear error as a
matter of law is often dispositive. See McDaniel v. U.S. Dist.
Court, 127 F.3d 886, 888 (9th Cir. 1997) (absence of clear
error may itself dispose of petition).
We review the district court’s order for clear error as a mat-
ter of law. See Burlington N. & Santa Fe Ry. Co. v. U. S. Dist.
Court, 408 F.3d 1142, 1146 (9th Cir. 2005) (seeking writ of
mandamus to overturn order to produce documents). Here,
this standard is informed by the general principle that district
courts have wide latitude in controlling discovery, which we
review for an abuse of discretion. See id. at 1146-47; see also
Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th
Cir. 2004).
[1] The issue presented here is one of first impression; spe-
cifically, whether a district court has the authority to require
IN RE: STATE OF ARIZONA 6543
a defendant to prepare a Martinez report. See Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam).2 The pur-
pose of the report “is to give the court the benefit of detailed
factual information that may be helpful in identifying a case
involving a constitutional challenge to an important, compli-
cated correctional practice, particularly one that may affect
more than the inmate who has filed the 1983 action.” Lewis
v. Fong, Nos. 86-3465, 86-4011 and 86-4616, 1986 U.S. Dist.
LEXIS 17837, at *5 (E.D. Pa. Nov. 12, 1986). In Martinez,
the court indicated that a “record” could be created by requir-
ing state authorities to use administrative or grievance proce-
dures. 570 F.2d at 319-20. The court also explained that the
record is especially important to develop the facts as to the
color of state law and to enable the trial court to make prelim-
inary decisions on issues like jurisdiction. Id.The Federal Judicial Center has also acknowledged the util-
ity of Martinez reports: “By ordering a defendant to file a
Martinez report early in the litigation, the court can in some
cases save time and effort — either that required to dispose
of frivolous cases on motion or that required to deal formally
with a problem the penal institution might be able and willing
to address informally.” Federal Judicial Center, Resource
Guide for Managing Prisoner Civil Rights Litigation
§ III.C.3.c.3 at 33 (1996).
Petitioners contend that the district court’s order is clearly
erroneous for five reasons: (1) the order requires a “unilateral
super-disclosure” in violation of Federal Rule of Civil Proce-
dure 26; (2) the order grants Tuzon impermissible and exces-
sive injunctive relief; (3) the order circumvents the
requirement that Tuzon exhaust his administrative remedies
2
A district court recently directed defendants to file a Martinez report,
finding authority to do so from Martinez, another Tenth Circuit opinion
and the Federal Judicial center’s report on managing civil litigation. Orr
v. Dawson, No. CV06-53-S-BLW, 2006 U.S. Dist. LEXIS 68943, at *12
(D. Idaho Sept. 25, 2006).
6544 IN RE: STATE OF ARIZONA
before filing suit and denies petitioners the benefit of their
defense that Tuzon failed to exhaust; (4) the order violates
petitioners’ due process rights and denies them the benefit of
a qualified immunity defense; and (5) the order creates an eth-
ical quandary for petitioners’ counsel.
We conclude that the district court did not err or abuse its
discretion in directing that petitioners investigate Tuzon’s
claims and present their findings to the court and to Tuzon.
The nature of Tuzon’s claims, as well as the timing of the dis-
trict court’s order, satisfies us that under the circumstances in
this case any burden of production was appropriately shifted
to petitioners.
District Court Discretion in Managing Prisoner Civil
Rights Litigation
[2] As the parties seem to agree, there is no specific statu-
tory authority either permitting or forbidding the requested
report, although the Fifth and Tenth Circuits have approved
the use of such reports.3 See, e.g., Norton v. Dimazana, 122
F.3d 286, 292 (5th Cir. 1997); Martinez, 570 F.2d 317; Hard-
wick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). Absent statu-
tory mandate or precedent from the Supreme Court or the
Ninth Circuit, we cannot conclude that the order is erroneous
as a matter of law, as that term is used in mandamus analysis.
See Bauman v. U.S. Dist. Court, 557 F.2d 650, 660 (9th Cir.
1977) (district court order not clearly erroneous where there
were no Supreme Court or Ninth Circuit decisions deciding
the issue and where there was split of authority in other cir-
cuits).
[3] We start with first principles. Federal Rule of Civil Pro-
cedure 16 vests the district court with early control over cases
3
The Eighth Circuit affirmed a dismissal based upon a report, but did
not specifically address the report’s propriety. See Hendricks v. Havener,
587 F.2d 21 (8th Cir. 1978).
IN RE: STATE OF ARIZONA 6545
“toward a process of judicial management that embraces the
entire pretrial phase, especially motions and discovery.” Fed.
R. Civ. P. 16 advisory committee’s note, 1983 Amendment;
see Fed. R. Civ. P. 16(a) (“In any action, the court may order
the attorneys and any unrepresented parties to appear for one
or more pretrial conferences. . . .”). Rule 16 further recognizes
the inherent power of the district court to enforce its pretrial
orders through sanctions, Fed. R. Civ. P. 16(f), and the discre-
tion of the district judge to apply an appropriate level of
supervision as dictated by the issues raised by each individual
case. See, e.g., Fed. R. Civ. P. 16(c)(2).
For example, district courts are to issue a scheduling order
within 120 days after service of the complaint on the defen-
dant, setting various deadlines for joinder, amendment of
pleadings, motions and discovery, but the order may also
include “other appropriate matters.” Fed. R. Civ. P. 16(b).
Failure to comply with the scheduling order exposes a party
to “any just orders,” as determined by the district judge,
including dismissal, entry of default or contempt of court.
Fed. R. Civ. P. 16(f), 37(b)(2).
[4] While the scope of the district court’s authority over
pretrial proceedings is broad, it is tempered in pro se prisoner
civil rights cases. For example, Federal Rule of Civil Proce-
dure 26 specifically exempts pro se prisoner lawsuits from the
initial disclosure requirements, Fed. R. Civ. P. 26(a)(1)
(B)(iv), and from initial conference requirements, Fed. R. Civ.
P. 26(f). Cf. Fed. R. Civ. P. 26(b)(1) (“For good cause, the
court may order discovery of any matter relevant to the sub-
ject matter involved in the action.”). The district court is not
required to conduct a pretrial conference in prisoner cases,
though there is no rule forbidding it. See Fed. R. Civ. P. 16(a).
[5] In addition, a district court must determine at the outset
of the litigation or suit whether a pro se prisoner has filed a
colorable action. See 28 U.S.C. § 1915A(a)-(b). After screen-
ing, the district court may order a response to any surviving
6546 IN RE: STATE OF ARIZONA
claims and the case proceeds as any ordinary civil litigation
would, with a few exceptions. For example, the parties may
take discovery and file dispositive motions. See generally
Fed. R. Civ. P. 12, 26.
[6] In this case, the district court did not order production
of the Martinez report until after petitioners had filed their
answer. Since that time, the district court has ruled on peti-
tioners’ Rule 12(b) motion, concluding that certain of Tuzon’s
claims were either exhausted or did not require exhaustion.4
Thus, this was not a situation where a defendant was called
upon to create a record at the outset of the litigation in order
to assist the district court to screen the complaint or to deter-
mine jurisdiction. However, because the district court has
identified defects in the administrative record at this point, an
investigation and report seem not only prudent but necessary
to determine whether this case involves a legal challenge to
an important complicated constitutional issue that may affect
more inmates than Tuzon. See Lewis, 1986 U.S. Dist. LEXIS
17837, at *5.
4
In their “Unenumerated Motion to Dismiss Under Rule 12(b),” peti-
tioners sought to dismiss all of Tuzon’s claims on the basis that he failed
to exhaust them before filing suit.
In particular, as to Count I, defendants initially argued that plaintiff sub-
mitted no inmate letter or grievance. When Tuzon attached copies of his
inmate letter, grievance, and appeal to the Director as exhibits to his
response, defendants “conducted an investigation and now assert that
Plaintiff’s Grievance documents are genuine and that he submitted the
documents to security officers assigned to his housing unit, but the docu-
ments were not forwarded to . . . [the] Grievance Coordinator.” Order
dated July 27, 2007, at 4.
Furthermore, in reviewing plaintiff’s alleged failure to grieve his denial
of eyeglasses (Count IX), defendants initially alleged that plaintiff had not
exhausted his remedies, but subsequently “acknowledge[d] that the griev-
ance was filed under the wrong number and that the grievance log entry
notes ‘whole file missing.’ ” Id. at 10.
IN RE: STATE OF ARIZONA 6547
The Order Does Not Provide Tuzon with Impermissible
Injunctive Relief
Petitioners allege that the order provides Tuzon with pro-
spective or injunctive relief, as defined in 18 U.S.C. § 3626,
because the terms of the order award Tuzon relief other than
compensatory money damages. See 18 U.S.C. § 3626(g)(7).
[7] Petitioners’ definition of “prospective relief” under the
statute is correct. However, petitioners provide no authority
for their proposition that the terms of the order, issued sua
sponte by the district court under Federal Rule of Civil Proce-
dure 16, constitute “relief” to Tuzon. See, e.g., Orange
County v. Hongkong and Shanghai Banking Corp. Ltd., 52
F.3d 821, 825 (9th Cir. 1995) (fundamental characteristics of
injunction include design to accord or to protect some or all
of the substantive relief sought by a complaint in more than
a preliminary fashion). Tuzon did not request the report in his
complaint. Instead, the district court appears to have issued
the order in connection with the district court’s customary
pretrial management prerogatives as a way to create an
administrative record to assist the district court and to struc-
ture the direction of the litigation. The information to be pro-
vided is consistent with ordinary pretrial obligations and
reporting requirements in non-prisoner civil cases, where both
parties have an affirmative duty to allege at the pretrial con-
ference all factual and legal bases upon which they wish to lit-
igate the case. See Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609-10 (9th Cir. 1992).
[8] Moreover, at this stage, the order does not implicate
concerns about overreaching by the district court into daily
prison administration. See Lewis v. Casey, 518 U.S. 343, 361-
63 (1996). Petitioners contend that the order overreaches
because it directs prison administrators (including non-
defendants) to perform certain tasks and presumably to allo-
cate resources to perform those tasks. We reject this conten-
tion for the following reasons. First, a review of the district
6548 IN RE: STATE OF ARIZONA
court docket reflects that several non-parties have already pro-
vided affidavits in support of petitioners’ Rule 12(b) motion,
and also appear on petitioners’ trial witness list. See, e.g.,
Defs. Mot. to Dismiss, Ex. George Decl., Ex. Olson Decl.,
Defs. Witness List. Second, petitioners provide no informa-
tion about the amount or kind of additional work the non-
parties would have to perform in order to comply with the
terms of the order, as opposed to the amount and kind of work
they would ordinarily perform for any other prisoner lawsuit
or the work they have already performed for this case.
Because we cannot analyze the unique burden this order
places on petitioners and their employees, we decline to spec-
ulate whether the district judge has impermissibly over-
reached into daily prison administration.
The Order Does Not Deprive Petitioners of Their Qualified
Immunity Defense
[9] Petitioners argue that the order denies them the benefit
of their qualified immunity defense. But petitioners are free
to raise the immunity issue at any time and could have raised
it in their Rule 12(b) motion, which was filed before this peti-
tion. If petitioners choose to await the disposition of their
exhaustion defenses before raising immunity claims, that is
certainly their prerogative; however, it is factually inaccurate
to allege that the order, rather than petitioners’ trial strategy,
forecloses the benefits of their immunity defense.
Petitioners’ Remaining Claims are Either Moot or Not Ripe
Petitioners argue that the order forces government counsel
into an ethical quandary and forecloses their opportunity to
move for dismissal on exhaustion grounds. The latter argu-
ment is moot because, as noted above, the district court has
ruled on petitioners’ dismissal motion, filed after the order
was entered, finding Tuzon failed to exhaust some claims.
Petitioners’ argument that the order places government
counsel in an ethical quandary is not yet ripe, as the petition
IN RE: STATE OF ARIZONA 6549
only alleges that “it is possible” that the order will require
government counsel to violate an adverse representation rule.
CONCLUSION
[10] As a permissible option within its broad discretion, a
district court in an appropriate case can issue a Martinez-style
order that is reasonably tailored to the pretrial needs of the
district court to assess the case. While it may be possible in
some instances for a Martinez order to represent an abuse of
discretion by the district court, that is not the case here, where
the scope of the investigation and report has been limited by
two screening orders and a subsequent dismissal order. In
addition, Tuzon’s claims of deliberate indifference and retali-
ation are of a type not limited to Tuzon and thus may affect
other inmates. In light of the results of petitioners’ investiga-
tion of Tuzon’s grievance file, the district court could further
conclude that, in this case, it was appropriate to create a com-
prehensive, substitute record. See Martinez, 570 F.2d at 319-
20.
[11] The district court did not clearly err in ordering peti-
tioners to investigate the substance of Tuzon’s surviving
claims and to file a report containing its findings. Because we
find no clear error, we do not reach the remaining Bauman
factors. The petition for a writ of prohibition is
DENIED.