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
COUNSEL

Paul E. Carter, Dennis P. Schaack, and Terry Goddard, Phoenix, Arizona, for the petitioners.

IN RE: STATE OF ARIZONA 6539
Hon. Frank R. Zapata, Phoenix, Arizona, for the respondent.

Robert V. Tuzon, Tucson, Arizona, for the real party in interest.

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 intervention, pursuant to 28 U.S.C. § 1651(a), to prohibit the district 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 propriety of the district court’s order is an issue of first impression 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 petition. 

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 status 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

1Petitioners have filed a motion to add Dora B. Schriro, Director of the

Arizona Department of Corrections, as a petitioner. We grant that motion.

6540 IN RE: STATE OF ARIZONA
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 concluded that Tuzon had stated claims for deliberate indifference 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 indifferent 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 officials to resolve the subject matter of the complaint. Defendants 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 institution; (3) affidavits to support any facts alleged in the report;

and (4) copies of any documents pertaining to the administrative 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 dismiss 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

IN RE: STATE OF ARIZONA 6541
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 seeking 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 erroneous 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 matter 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; specifically, whether a district court has the authority to require

6542 IN RE: STATE OF ARIZONA
a defendant to prepare a Martinez report. See Martinez v.

Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam).2 The purpose 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, complicated 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 requiring state authorities to use administrative or grievance procedures. 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 preliminary decisions on issues like jurisdiction. Id.

The Federal Judicial Center has also acknowledged the utility 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 Procedure 26; (2) the order grants Tuzon impermissible and excessive injunctive relief; (3) the order circumvents the

requirement that Tuzon exhaust his administrative remedies

2A 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). 

IN RE: STATE OF ARIZONA 6543
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 ethical 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 district 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 statutory authority either permitting or forbidding the requested

report, although the Fifth and Tenth Circuits have approved

the use of such reports.3See, e.g., Norton v. Dimazana, 122

F.3d 286, 292 (5th Cir. 1997); Martinez, 570 F.2d 317; Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). Absent statutory 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 circuits). 

[3] We start with first principles. Federal Rule of Civil Procedure 16 vests the district court with early control over cases

3The 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). 

6544 IN RE: STATE OF ARIZONA
“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 discretion 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 defendant, 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 Procedure 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 subject 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 screening, the district court may order a response to any surviving

IN RE: STATE OF ARIZONA 6545
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 petitioners’ 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 determine 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),” petitioners 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 submitted 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 documents 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 grievance was filed under the wrong number and that the grievance log entry

notes ‘whole file missing.’ ” Id. at 10. 

6546 IN RE: STATE OF ARIZONA
The Order Does Not Provide Tuzon with Impermissible

Injunctive Relief

Petitioners allege that the order provides Tuzon with prospective 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 Procedure 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 structure the direction of the litigation. The information to be provided 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 conference all factual and legal bases upon which they wish to litigate 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 nondefendants) to perform certain tasks and presumably to allocate resources to perform those tasks. We reject this contention for the following reasons. First, a review of the district

IN RE: STATE OF ARIZONA 6547
court docket reflects that several non-parties have already provided 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 information about the amount or kind of additional work the nonparties 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 speculate whether the district judge has impermissibly overreached 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 petition. 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 argument 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

6548 IN RE: STATE OF ARIZONA
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 retaliation are of a type not limited to Tuzon and thus may affect

other inmates. In light of the results of petitioners’ investigation of Tuzon’s grievance file, the district court could further

conclude that, in this case, it was appropriate to create a comprehensive, substitute record. See Martinez, 570 F.2d at 319-

20. 

[11] The district court did not clearly err in ordering petitioners 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.

IN RE: STATE OF ARIZONA 6549