*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 27, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MURTAZA ALI,

Plaintiff-Appellant,

v. No. 08-5033

WALTER DINWIDDIE, Warden at

DCCC; STEVEN BECK, Warden at

MACC; ANITA TRAMMELL, Deputy

Warden at MACC; LEWIS McGEE,

Chief of Security at MACC; RONNIE

BOWEN, Captain at MACC; MATTHEW

HAMPTON, Officer at MACC; C. T.

HURD, Unit Manager at MACC;

RUSSELL GOLDEN, Hearing Officer at

MACC; PHILLIP WILSON, Hearing

Officer at MACC; THOMAS SHARP,

Warden’s Asst. at MACC; AL BLAIR,

Warden’s Assistant at DCCC; DEBBIE L.

MORTON, Designee for Director of

DOC; JOHN DOE, Unknown Employee,

Chief of Security at DCCC 01/2006; and

DEPARTMENT OF CORRECTIONS,

STATE OF OKLAHOMA, The State of

Oklahoma, ex rel.,

Defendants-Appellees.

(D.C. No. 4:07-CV-00059-TCK-SAJ)

(N. D. Oklahoma)

ORDER AND JUDGMENT*
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Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

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

oral argument would not materially assist in the determination of this appeal. See Fed. R.

App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without

oral argument. 

Murtaza Ali (Plaintiff), a state prisoner appearing pro se, appeals the district

court’s dismissal of his civil rights suit brought pursuant to 42 U.S.C. § 1983. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSE and REMAND.

Plaintiff brings several constitutional claims arising out of an incident which

occurred while he was incarcerated at the Mack Alford Correctional Center (MACC). 

Plaintiff alleges that MACC correctional officer Matthew Hampton entered his cell,

insulted him using a racial epithet, ordered him to place his hands against the wall of the

cell, and proceeded to punch and kick him. Plaintiff claims that MACC personnel then

refused to provide him medical assistance to treat the injuries, and instead placed him in

segregated confinement. He was subsequently transferred to the Dick Conner

Correctional Center (DCCC) and placed in a unit with what he characterized as the most

dangerous and violent inmates in the prison. 

The complaint names fifteen parties as defendants, including the State of

Oklahoma and the Department of Corrections (DOC). The other thirteen defendants were
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all employees of the DOC, and were sued in both their individual and official capacities. 

Plaintiff’s alleges that: (1) MACC personnel were not adequately trained to look after his

safety and well being; (2) Defendant Hampton used excessive force against him; (3)

MACC personnel deliberately ignored his need for medical attention after the attack; (4)

his transfer to DCCC was an act of retaliation for his decision to file a civil rights lawsuit;

and (5) MACC’s disciplinary and grievance proceedings violated his right to substantive

and procedural due process. 

In light of these allegations, the district court ordered the Department of

Corrections to prepare a Special Report reviewing Plaintiff’s complaint pursuant to this

court’s opinion in Martinez v. Aaron, 570 F.2d 317, 318-319 (10th Cir. 1978) (en banc)

(per curiam). Based on the report, the court found that

Hampton entered Plaintiff’s cell to investigate an odor coming from the

cell. Defendant Hampton observed that Plaintiff had slurred speech and

appeared intoxicated. Hampton asked Plaintiff to step out of the cell. 

While Defendant Hampton was “pat searching” Plaintiff, a small plastic

baggie containing four (4) blue pills fell to the floor. As Hampton knelt

down to pick up the baggie of contraband, Plaintiff’s right shoulder struck

Hampton’s left shoulder, knocking the correctional officer back. Defendant

Hampton responded by using his arm to push Plaintiff away and

handcuffing him. . . . After being handcuffed, Plaintiff was taken to the

showers for a strip search, at which time Defendant Hampton and another

correctional officer noticed Plaintiff holding something in his hand. 

Plaintiff refused an order to turn over the object in his hand, placed the

object in his mouth and swallowed. Plaintiff later admitted that he had

swallowed five Zanax pills. Plaintiff was then escorted to get medical

attention where duty nurse Pugh examined him. Nurse Pugh recommended

that Plaintiff be transported to the hospital for detox due to the unknown

quantity of drugs he had ingested. The nurse also filed a report of her

examination which indicated that she did not find any significant injuries

caused by the incident. Plaintiff was transported to Colgate Hospital and
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treated for potential drug overdose. Significantly, Plaintiff did not complain

of any injuries while at the hospital.

ROA, Doc. 57 at 6. The Special Report also indicated that Plaintiff was charged with

several disciplinary violations as a result of this incident, and was given a written notice

of the charges and was found guilty of the violations after a full hearing on the merits. 

The district court relied upon the Eleventh Amendment to dismiss Plaintiff’s

claims against the State of Oklahoma and the DOC, as well as his claims for monetary

damages against the individual defendants sued in their official capacities. Plaintiff does

not challenge those rulings. Plaintiff does appeal the court’s denial of his motion to

amend his complaint, as well as the court’s entry of summary judgment in favor of the

defendants on all of his remaining claims.

“We review the denial of a motion to amend for abuse of discretion.” Anderson v.

Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). The Federal Rules of Civil Procedure

provide that the district court “should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). “Refusing leave to amend is generally only justified

upon a showing of undue delay, undue prejudice to the opposing party, bad faith, or

dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility

of the amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). 

Plaintiff filed two motions to amend his complaint, both of which sought to

conform his allegations to the evidentiary materials contained in the Martinez report. The

initial motion was actually a request for leave to file an amended complaint, and came
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twenty days after the filing of the Martinez report. The second motion to amend came

five months after the filing of the Martinez report. The district court denied both motions,

writing that “in light of the procedural posture of this case, the Court finds Plaintiff’s two

motions to file an amended complaint should be denied. Defendants have filed

dispositive motions based on the claims asserted by Plaintiff in the original complaint. 

Resolution of Defendants’ pending motions would be further delayed if Plaintiff were

allowed to file either of the proposed amended complaints.” ROA, Doc. 57 at 20.

We conclude that the district court abused its discretion in denying Plaintiff’s

initial request for leave to file an amended complaint. While undue delay is a justification

for denying a motion to amend, the district court’s reliance upon undue delay in this case

is not supported. The Defendants’ motion to dismiss was filed on the same day as the

filing of the Martinez report. Twenty days after receiving the documentation contained in

the Martinez report, Plaintiff filed his motion to amend. Whatever delay would have been

created by allowing Plaintiff’s amendment, it was certainly not undue. To hold otherwise

would amount to a rule allowing an inmate to receive information contained in a Martinez

report, but not to allow the inmate to promptly amend his complaint upon learning of this

additional evidence. So while undue delay is a valid reason for denying leave to amend

in some cases, it is not a legitimate basis for denial here, where the Plaintiff filed a

prompt motion to amend upon receipt and review of the Martinez report. 

This case differs from our opinion in Dopp v. Loring, 245 Fed. Appx. 842 (10th

Cir. 2007), where we affirmed a district court’s denial of a plaintiff’s Rule 15(a) motion
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in order to conform his complaint “to the subsequent pleadings and evidentiary materials,

particularly, the Martinez report,” based on “the fact the . . . Defendants had filed a

motion to dismiss based on the claims in the original complaint and resolution of that

motion would be delayed if [the plaintiff] were allowed to amend his complaint.” Id. at

850. In Dopp, we emphasized that “the request to amend came almost a year after the

Martinez report was filed.” Id. Here, the motion to amend was filed only twenty days

after the filing of the Martinez report. Unlike the inmate-plaintiff in Dopp, Plaintiff did

not create needless delay by waiting to file a motion to amend after a long period of time. 

Plaintiff’s motion was filed promptly after he received the Martinez report.

Defendants argued in the district court that “[t]he proposed amendments requested

by Plaintiff would . . . be an exercise in futility since they do not add any new factual or

legal elements to Plaintiff’s already existing § 1983 claims.” See ROA, Doc. 34 at 3

(going on to note that “[i]f this court is inclined to grant Defendants’ pending Motion to

Dismiss . . ., then the inclusion of . . . additional factual allegations of the Plaintiff

contained in his Amended Complaint would be futile[.]”). The district court did not

address Defendants’ futility argument or directly discuss the substance of the proposed

amendments. We decline to affirm the district court’s dismissal on this alternative

rationale. 

Plaintiff also argues that the district court should have allowed him to conduct

discovery, rather than relying on the Special Report prepared by the DOC, and requests

that we overrule our decision in Martinez authorizing that practice. We must decline
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Plaintiff’s invitation to overrule Martinez. See Barber v. T.D. Williamson, Inc., 254 F.3d

1223, 1229 (10th Cir. 2001) (noting that “one panel cannot overrule the judgment of

another panel of this court . . . absent en banc consideration or a superseding contrary

decision by the Supreme Court.”) (internal quotation omitted).

As we conclude that the district court abused its discretion by not allowing

Plaintiff to amend his complaint, we need not review the district court’s decision to grant

summary judgment in favor of the Defendants in their individual capacities on the

remaining claims. C.f. Crane v. Young, No. 95-7033, 1995 U.S. App. LEXIS 15169, at

*3 (10th Cir. June 20, 1995) (noting that an inmate’s civil rights complaint cannot be

dismissed before a proper ruling on a motion to amend). 

REVERSED and REMANDED for further proceedings. 

Entered for the court,

Mary Beck Briscoe

Circuit Judge