Ortiz v. Torgenson

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 9, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DANIEL ORTIZ,

Plaintiff - Appellant,

v. No. 19-4163
(D.C. No. 2:17-CV-00328-TC)
SARAH TORGENSON, Officer; ROGER (D. Utah)
PETERSON, Lt.; GLENN PICKETT, Sgt.;
RUSTY BRAITHWAIT, Officer; FNU
ALLRED, CHS; FNU GEORGE, CHS;
HEATHER ANDERSON, Sgt.; FNU
EKKART, Officer; BRUCE O.
BURNHAM, M.D.; TIMOTHY DENNIS,
PA; CLIFF SORENSON, Officer;
ROBBIE SYLVESTER, Sgt.,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
_________________________________

Daniel Ortiz, a Utah state prisoner proceeding pro se, appeals from the district

court’s grant of summary judgment against him in a civil rights lawsuit brought

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
against certain prison guards and medical professionals. He also appeals the district

court’s denial of his motion to compel discovery. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm in part, vacate in part, and remand for further

proceedings.

I. STANDARDS OF REVIEW

We review the district court’s summary judgment ruling de novo, viewing the

evidence in the light most favorable to Ortiz. See Punt v. Kelly Servs., 862 F.3d

1040, 1046 (10th Cir. 2017). When some contradictory evidence exists, the basic

summary judgment question is whether a reasonable jury could find for the

nonmovant on the disputed issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

We review the district court’s discovery ruling for abuse of discretion. See

Punt, 862 F.3d at 1046.

II. FACTUAL BACKGROUND

The evidence in the light most favorable to Ortiz is as follows.

A. The Attack on Ortiz

Ortiz is a Utah state prisoner housed at the Central Utah Correctional Facility

in Gunnison, Utah. To prevent violence between the Norteño and Sureño prison

gangs, the prison uses an A/B day rotation. Sureños are allowed out of their cells

only on A days, and Norteños only on B days. Ortiz was considered a Sureño.

Wednesday, July 29, 2015, was a B day and Ortiz was locked down in his cell,

per the usual rotation. Sometime in the afternoon, however, defendant Torgenson

2
(a control room officer) ordered Ortiz to attend an Offender Management Review

(OMR), and opened his cell door for that purpose. An OMR is a meeting requested

by an inmate to discuss housing, safety, or other issues with prison staff. Although

an inmate requests the meeting, prison staff decides when to hold it.

As ordered, Ortiz left his cell and walked without incident to the OMR room.

He felt uncomfortable doing so, however, because he saw “many inmates”—

presumably rival Norteños—“walking about” through the housing unit. R. vol. I

at 82, ¶ 4.

Inside the OMR room were prison officials of varying ranks and roles,

including defendants Allred, Braithwaite, 1 George, Peterson, and Pickett. The

purpose of the OMR was to discuss a complaint from Ortiz about a matter unrelated

to this lawsuit. According to Ortiz, the discussion was abrupt, and Peterson then

ordered him to return to his cell. Ortiz protested that he “thought [he] had seen

. . . Norte[ñ]os out and that [he] may be in danger.” Id. at 83, ¶ 5. “At that,” he says,

“I was told by defendant Peterson, not to worry, ‘The Norte[ñ]os are locked down,

just head straight down to your cell and rack in.’” Id.

But the Norteños were not locked down. Ortiz had barely exited the OMR

room into the hallway leading to his housing unit before two of them attacked him.

Peterson and other officials subdued the attackers and extricated Ortiz, but not before

1
The caption spells Braithwaite’s name as “Braithwait.” In briefing and in the
record below, his counsel refers to him as “Braithwaite,” so we presume this is the
correct spelling.

3
he sustained injuries. 2

B. The Out-of-Bounds Incident

About two-and-a-half months later (October 10, 2015), Ortiz was singing

songs with other inmates just outside an unnamed inmate’s cell. Defendant

Anderson—a housing sergeant who began working in Ortiz’s unit a little after the

July 29 incident—broke up this group and issued Ortiz a disciplinary charge for

going “out of bounds” (i.e., “stepping inside another inmate[’]s cell”). Id. at 161,

¶ 17. Anderson immediately “placed [Ortiz] on T.R.O. which is Temporary

Restriction Order, a ‘temporary’ lockdown and loss of privileges for up to 18

working days (Mon-Fri).” Id. Ortiz’s cellmate, Robert Cruz, also received an out-of-

bounds charge and was placed in T.R.O. lockdown. Cruz had never known of an

inmate placed in T.R.O. lockdown for an out-of-bounds violation. Another inmate

named Garcia received an out-of-bounds charge arising from the same incident but

Anderson did not place him on T.R.O.

Ortiz had a “T.R.O. interview” with Anderson and Peterson on October 15. Id.

¶ 18. During the interview, they did not discuss the out-of-bounds charge. Peterson

instead told Ortiz that a senior supervisor had been transferred away from Ortiz’s

housing unit because of Ortiz’s grievance regarding the attack on July 29. Peterson

“then kept going on about how because of that grievance he had gotten in alot [sic] of

trouble and had to work days without pay.” Id. at 162, ¶ 20. Anderson, for her part,

We provide more details about his injuries and the treatment he received
2

when we discuss his medical care claim, below.

4
“began to reprimand [Ortiz] about asking [prison officials] for a grievance form on

October 10, when [he] was first placed on T.R.O. She yelled at [Ortiz] for asking

another inmate . . . to retrieve a grievance form for [him].” Id. at 161, ¶ 19. And she

said to Ortiz, “You complain too much, I don[’]t want you in my housing unit.” Id.

at 162, ¶ 21 (internal quotation marks omitted).

Ortiz’s cellmate, Cruz, had his T.R.O. interview around the same time. Cruz

says that, during that interview, Peterson said “Ortiz had snitched and had confessed

that we were drinking prison brew.” Id. at 170, ¶ 6. Cruz also stated that Peterson

said “Ortiz was working with [prison officials] and that [he] had told on all of us, that

we were breaking the rules and drinking ‘hooch.’” Id.

Around this time, Anderson imposed a second disciplinary charge against

Ortiz. The record is ambiguous about whether she imposed the second charge at the

same time as the out-of-bounds charge (October 10), or not until after the T.R.O.

interview (on October 15), or perhaps a couple of days after that. In any event,

Anderson charged Ortiz with tampering with the cuff port on his cell door. In truth,

Ortiz says, the cuff port was faulty and Anderson knew it was faulty because she

submitted a maintenance work order in that regard. And although Ortiz shared his

cell with Cruz, Anderson charged only Ortiz with that violation.

Following his T.R.O. interview, Ortiz was sent to the “Severe Management

Unit” (SMU) for twenty-two days, where he was only allowed out of his cell three

times per week, for fifteen minutes each. Id. at 162, ¶ 21. Ortiz says he’s never

known another inmate to be transferred out of his housing unit for an out-of-bounds

5
infraction, and he is the only one of the three charged with that infraction who was

transferred. But Cruz, whose declaration Ortiz submitted in opposition to summary

judgment, says he was also transferred to the SMU after his T.R.O. interview.

On October 30, Ortiz attempted hang himself in his SMU cell, or at least was

discovered with noose in hand (the record is ambiguous). Prison officials transferred

him to the main infirmary in Draper, Utah, for about a week, and then transferred him

back to the Gunnison facility. After his return, he was given a stricter security

classification and housed in a maximum-security unit. For a few days he lost

numerous privileges, such as phone calls, visits, and his property. By November 9,

however, he returned to the general population and received his property again.

At some unspecified time during all of this, a prison disciplinary officer

acquitted Ortiz of the cuff port charge. No party points to anything in the record

about the ultimate disposition of the out-of-bounds charge.

C. Ortiz’s Grievance

On October 21, 2015—after his transfer to the SMU but before his suicide

attempt—Ortiz submitted a grievance. He began by stating, “I am being [harassed]

and retaliated against for having written a griev[a]nce and also for wanting to write

one on Sgt. Anderson.” R. vol. II at 99. He noted he had previously grieved

harassment by (unnamed) prison officers, and he had grieved the A/B schedule. He

then said, “After writing these griev[a]nces,” and proceeded to narrate the July 29

assault. Id. at 100. At the end of that narrative, Ortiz opined that “[t]his was no

‘accident’ or ‘mistake’, why wasn’t procedure followed? [A]nd how did those guys

6
know I was in O.M.R[.] and [how were they] allowed out of their section to wait for

me? I now believe this was done on purpose to retaliate on me.” Id.

Ortiz then recounted that the July 29 assault prompted him to write a grievance

“to get off the A-B schedule.” Id. Ortiz said he was “told by Lt. Peterson when he

handled my griev[a]nce that I ‘had put a huge spotlight on me’ and that, ‘it would go

all bad for me if I p[u]rsue it.’ ([Referring] to my griev[a]nce[.])” Id. So, he

continued, “I am now writing this griev[a]nce for retaliation based on the incidents

which I have stated here. . . . Clearly this is all retaliation.” Id.

Prison officers denied relief to Ortiz at all three levels of the Utah prison

system’s grievance process, essentially concluding that Ortiz had not presented

enough evidence to show that his treatment after the out-of-bounds incident was

retaliatory.

III. PROCEDURAL HISTORY

Ortiz filed a 42 U.S.C. § 1983 lawsuit in the United States District Court for

the District of Utah in April 2017. He variously accused defendants of deliberate

indifference toward the threat of assault (failure to protect), deliberate indifference

toward the injuries caused by that assault (inadequate medical care), and retaliating

against him for grieving the assault.

The district court screened the complaint, allowed most of it to go forward,

and ordered the U.S. Marshals Service to serve process on defendants. In the same

order, the district court ordered defendants to file a Martinez report within 90 days of

7
answering the complaint, and a summary judgment motion 30 days after that. 3 The

order went on to state that “Plaintiff may file a response [to the Martinez report]

within 30 days of the report’s filing date,” and he “must submit a response [to any

summary judgment motion] within 30 days of the motion’s filing date.” Supp. R.

at 14.

While defendants prepared their Martinez report, Ortiz began serving

interrogatories, requests for admission, and requests for production of documents.

This prompted defendants to file a “notice of non-response to continued requests for

discovery.” Id. at 30 (capitalization normalized). Defendants stated that, “[o]ften,

relevant documents are produced as part of the Martinez Report,” so they “should be

allowed to file their Martinez Report prior to any production of records directly to the

Plaintiff.” Id. at 31. Defendants said nothing specifically about interrogatories or

requests for admission but pointed the court to a ruling (from a different case and

judge, but within the same district) postponing discovery until after the Martinez

report. “Thus,” defendants concluded, “Plaintiff’s repeated requests [for] discovery

are premature and Defendants will prepare a Martinez Report addressing Plaintiff’s

claims.” Id.

A Martinez report is a procedure first approved in Martinez v. Aaron,
3

570 F.2d 317, 319 (10th Cir. 1978). As explained in later cases, the district court
may “direct prison officials to respond in writing to the [prisoner’s] various
allegations, supporting their response by affidavits and copies of internal disciplinary
rules and reports. The purpose of the Martinez report is to ascertain whether there is
a factual as well as a legal basis for the prisoner’s claims.” Gee v. Estes, 829 F.2d
1005, 1007 (10th Cir. 1987). We discuss Martinez reports in greater detail below
(Part IV).

8
 Defendants’ notice prompted Ortiz to file a motion to compel discovery. Ortiz

attached copies of (apparently) all his outstanding discovery requests.

Defendants never responded to the motion to compel. About two weeks later,

however, defendants filed their Martinez report—nearly all of it under seal because

they had marked nearly all of it as private under Utah public records laws.

Defendants’ report comprised their declarations prepared specifically for the report,

the prison’s contemporaneous internal report on the incident in which Ortiz was

assaulted, Ortiz’s grievance records, Ortiz’s medical records, and the prison’s

grievance policy.

With defendants’ summary judgment deadline in mind (thirty days after the

Martinez report), Ortiz wrote to the court “to inquire about some motions that . . .

have not yet been decided. I really need these motions to be looked at by the judge

so I can proceed with this case and appropriately respond to Defendants[’] Motion for

Summary Judgement.” Id. at 161. Among the motions Ortiz listed was his motion to

compel discovery.

Defendants filed their summary judgment motion a few weeks later.

Defendants’ statement of undisputed material facts, as required by DUCivR 56-

1(b)(3), cited portions of the Martinez report for support. Defendants argued that

Ortiz did not exhaust his failure-to-protect claim, and, alternatively, the claim failed

on its merits. Defendants further argued that Ortiz’s medical-care and retaliation

claims failed on their respective merits.

Ortiz responded to the summary judgment motion and disputed many of

9
defendants’ allegedly undisputed facts. He also attached declarations from himself

and fellow prisoners. He further argued that he expected he could provide more

evidence if defendants were required to answer the discovery requests at issue in his

still-pending motion to compel. And he attached to his response brief a document he

titled “Letter Under Oath,” which he signed under penalty of perjury. R. vol. I at

154, 155. In that letter, he cited his motion to compel and asserted that he could not

adequately dispute summary judgment on the failure-to-protect and retaliation claims

without obtaining the requested discovery.

The district court granted defendants’ summary judgment motion in full. See

Ortiz v. Torgensen, No. 2:17-CV-328 TC, 2019 WL 1376837 (D. Utah Mar. 27,

2019). 4 Regarding failure-to-protect, the district court found that Ortiz had not

exhausted his claim. Regarding medical care, the district court found that the

evidence showed only a dispute over the appropriate type of treatment, not a lack of

treatment or interference with treatment. And regarding retaliation, the district court

found that Ortiz had presented some evidence of retaliatory motive, but not enough to

prove that such a motive was the but-for cause of the allegedly retaliatory actions.

Throughout its summary judgment order, the district court treated the Martinez

report as undisputed to the extent Ortiz did not directly refute it. This is true even as

to portions of the Martinez report never cited by defendants in their statement of

4
The district court’s caption identifies the first named defendant as
“Torgensen.” The record shows that “Torgenson” is the correct spelling. See R.
vol. I at 19; R. vol. II at 89.

10
undisputed facts.

At the end of the summary judgment order, the district court denied Ortiz’s

motion to compel discovery because “[t]he subsequent Martinez report process

rendered this request unnecessary.” Id. at *15. The district court said nothing about

the Letter Under Oath.

IV. DISCOVERY

Ortiz argues on appeal that the district court erred in denying his discovery

requests. This argument potentially affects all of Ortiz’s merits arguments. Whether

Ortiz demonstrated a genuine issue of material fact turns, in part, on whether he had a

fair chance to develop necessary evidence. So we address the discovery question

first.

Defendants say that “Ortiz’s motion to compel was premature. It was filed

before discovery even began.” Answer Br. at 17. But Federal Rule of Civil

Procedure 26(d)(1) says, “A party may not seek discovery from any source before the

parties have conferred as required by Rule 26(f), except in a proceeding exempted

from initial disclosure under Rule 26(a)(1)(B) . . . .” And Rule 26(a)(1)(B)(iv) says

that “an action brought without an attorney by a person in the custody of the United

States, a state, or a state subdivision” is exempt from initial disclosures. Thus, Rule

26 did not require Ortiz to wait until the normal opening of discovery. Regardless,

defendants point to no local rule nor any order in the record (and we could find none)

forbidding discovery ahead of the Martinez report.

Defendants go on to say that Ortiz’s motion to compel “might not have been

11
patently frivolous if he had filed it after the Martinez report was filed, and if he had

specified to the district court exactly what items of additional evidence would have

legitimately helped him prove his case.” Answer Br. at 17–18. But the district court

never ruled that Ortiz’s motion, or any discovery request, was patently frivolous.

Nor did the district court order that he re-file it with greater specificity after the

Martinez report. In any event, Ortiz filed a request shortly after receiving the

Martinez report, asking the district court to rule on his still-outstanding motion to

compel so he could prepare for summary judgment. The district court did not act on

that request and did not act on the motion to compel until its summary judgment

order.

Finally, defendants argue that “Ortiz should have raised any legitimate

discovery concerns back when the district court was still considering the motion for

summary judgment.” Id. at 18. But he did:

• His motion to compel was still pending, and he had specifically

requested a ruling on it before summary judgment.

• He asserted in his summary judgment response that he could provide

better evidence if defendants would comply with his discovery requests.

• He attached his Letter Under Oath to his response brief stating that, at

least with respect to his failure-to-protect and retaliation claims, he did

not have the evidence he needed because defendants refused to answer

12
 his discovery requests. 5

In short, defendants’ arguments are unpersuasive. They assume procedural

restrictions that the district court never imposed and they ignore relevant portions of

the record.

The district court gave only one reason for denying the motion to compel:

“The subsequent Martinez report process rendered this request unnecessary.” Ortiz,

2019 WL 1376837, at *15. We have reviewed Ortiz’s discovery requests. The

Martinez report addresses many of them, but not all. The remaining discovery

requests are still arguably “relevant to any party’s claim or defense” and

“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). If the district court

had addressed them directly, we cannot say on this record that its discretion would

have been wide enough to deny all of them.

The district court’s reliance on the Martinez report in lieu of compelling

discovery was problematic from another perspective. The district court treated the

report as undisputed, whether or not defendants cited it in their summary judgment

brief. But a district court may not use a Martinez report to “resolve material disputed

factual issues by accepting the report’s factual findings when they are in conflict with

pleadings or affidavits.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

And “[a] bona fide factual dispute exists even when the plaintiff’s factual allegations

5
Federal Rule of Civil Procedure 56(d) allows summary judgment nonmovants
to make this kind of request. Neither defendants nor the district court acknowledged
his Letter Under Oath, much less argued or ruled, respectively, that it was not a
proper Rule 56(d) request.

13
that are in conflict with the Martinez report are less specific or well-documented than

those contained in the report.” Id.

We have allowed Martinez reports to be used for their truth against a plaintiff

if the plaintiff has been warned that failing to respond to the Martinez report could

lead to that result. See Schlicher v. Thomas, 111 F.3d 777, 780 (10th Cir. 1997).

Ortiz received no such warning here. He was told he “may file a response” to the

Martinez report, but the only thing to which the district court said he “must submit a

response” was defendants’ summary judgment motion. Supp R. at 14 (emphasis

added).

Moreover, Ortiz would have had difficulty preparing a meaningful response to

this particular Martinez report. Defendants’ report was not a “report” in the sense of

synthesizing the evidence and presenting defendants’ position on what happened.

Instead, it was a collection of individual declarations, contemporaneous accounts,

and pages upon pages of grievance and medical records. Yet it seems the district

court expected Ortiz to respond to every paragraph of every declaration and every

sentence of every other document. We need not decide whether a district court may

fairly require such a response. Even if it may, the district court did not provide

notice that it expected as much.

For all these reasons, we find the district court abused its discretion when it

denied Ortiz’s motion to compel. But we “must disregard all errors and defects that

do not affect any party’s substantial rights.” Fed. R. Civ. P. 61. Thus, the question

for us now is harmlessness—would Ortiz’s requested discovery have changed

14
anything? We address that question in the context of the two claims he specifically

addressed in his Letter Under Oath: failure to protect and retaliation.

V. FAILURE TO PROTECT

Before bringing a civil rights lawsuit regarding prison conditions, prisoners

must exhaust available administrative remedies. See 42 U.S.C. § 1997e(a). “[T]o

properly exhaust administrative remedies prisoners must complete the administrative

review process in accordance with the applicable procedural rules—rules that are

defined . . . by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218

(2007) (citation and internal quotation marks omitted).

Utah prison regulations require inmates to file grievances within seven

working days of the grievable event. The earliest grievance in the record is dated

October 21, well over seven days after the July 29 assault. But that October 21

grievance summarizes a previous grievance about the assault. And, in a summary

judgment declaration, Ortiz added that:

• he grieved the assault on August 6 (within seven working days of

July 29);

• the meeting where Peterson threatened him if he continued to pursue the

grievance took place on August 13; and

• based on Peterson’s threats, Ortiz felt “compelled to circle the ‘yes’ part

of the grievance resolve form.”

R. vol. I at 85, ¶ 10.

The district court did not accept this account, essentially finding Ortiz not
15
credible on the question of whether he submitted an August 6 grievance. District

courts may not judge credibility at summary judgment, see Anderson, 477 U.S. at

255, but Ortiz does not challenge this part of the district court’s reasoning. Nor,

importantly, does he argue that his discovery requests would have caused defendants

to produce the August 6 grievance if the district court had granted his motion to

compel.

Instead, Ortiz argues that his October 21 grievance:

• was enough to preserve the failure-to-protect issue arising on July 29,

and

• should be deemed timely because Peterson’s threats “hinder[ed] him

from p[u]rsuing a grievance” and created a “reluctance to grieve the

matter until he was transferred to a different location” (i.e., the transfer

to the SMU after the out-of-bounds incident).

Aplt. Opening Br. at 9. In other words, Ortiz continues to claim that Peterson

intimidated him, but he no longer argues that his alleged August 6 grievance is

relevant to his failure-to-protect claim. He has not abandoned his assertion that he

filed an August 6 grievance related in some way to the July 29 attack (as will become

clear in our discussion of retaliation, below). But he no longer argues that the August

6 grievance is relevant to whether he exhausted his failure-to-protect claim. He

instead stakes his entire argument on the October 21 grievance. Thus, for purposes

of his failure-to-protect claim, we focus on that grievance.

We will assume for argument’s sake that Peterson indeed intimidated Ortiz out
16
of filing (or further pursuing) a timely grievance of the July 29 assault. We will

further assume that Ortiz did not feel safe filing a new grievance until he was

transferred to a different housing unit—the SMU—where he was no longer under

Peterson’s supervision. Even under these assumptions, we must affirm the district

court’s conclusion that Ortiz failed to exhaust his remedies as to the July 29 assault.

Ortiz’s October 21 grievance describes the July 29 assault as factual context

for his belief that Peterson (and Anderson, the housing sergeant) were motivated to

retaliate against him. Indeed, Ortiz describes the July 29 assault itself as a set-up,

meant as retaliation for previous unspecified grievances. In his own words, “Clearly

this is all retaliation.” R. vol. II at 100.

Utah prison regulations require the inmate to “identify[] the specific nature of

the grievance.” R. vol. I at 53 (regulation FD02/02.06(A)(1)). We fail to see how

prison officials could have understood the “specific nature” of the October 21

grievance to be anything but retaliation, and only retaliation.

Ortiz highlights the Ninth Circuit’s statement that prison grievances “need not

include legal terminology or legal theories unless they are in some way needed to

provide notice of the harm being grieved. . . . The primary purpose of a grievance is

to alert the prison to a problem and facilitate its resolution, not to lay groundwork for

litigation.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Even under this

standard, Ortiz’s October 21 grievance did not alert Utah prison officials to a failure-

to-protect problem.

For this reason, we affirm the district court’s finding that Ortiz failed to

17
exhaust his administrative remedies as to his failure-to-protect claim.

VI. RETALIATION FOR FILING GRIEVANCES

As recounted above (Part II.B), Ortiz says he received unusually harsh

discipline for an out-of-bounds charge arising on October 10, 2015. Ortiz believes

Anderson and Peterson imposed more severe discipline than they normally would

have because they wanted to punish him for his grievances, and particularly for

complaining about the July 29 incident.

It is well-settled that “prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.” Gee v.

Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (internal quotation marks omitted).

“This principle applies even where the action taken in retaliation would be otherwise

permissible.” Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990). A prisoner

claiming retaliation must “allege specific facts showing retaliation [on account] of

the exercise of the prisoner’s constitutional rights,” Frazier v. Dubois, 922 F.2d 560,

562 n.1 (10th Cir. 1990), and he “must prove that ‘but for’ the retaliatory motive, the

incidents to which he refers, including the disciplinary action, would not have taken

place,” Smith, 899 F.2d at 949–50.

The district court focused on the but-for element. It acknowledged Ortiz’s

evidence (e.g., what Peterson and Anderson allegedly said to Ortiz about his

grievances) but weighed it against defendants’ explanation that he was moved to the

SMU for going out of bounds. The court also noted that his subsequent housing

moves were due to his suicide attempt. The district court thus reasoned that Ortiz

18
“may . . . have shown that retaliation for filing grievances played a role in moving

[him] to more restrictive housing but he failed to show that such retaliation was the

decisive factor.” Ortiz, 2019 WL 1376837, at *10 (internal quotation marks

omitted).

We presume the district court meant to say that Ortiz had not presented enough

evidence from which a reasonable jury could conclude that retaliation was “the

decisive factor.” Even under that presumption, we disagree.

Defendants’ summary judgment argument regarding retaliation appears to have

been an afterthought. Notably, defendants’ itemized assertions of material fact

(which Ortiz was required to specifically admit or deny) said nothing about the out-

of-bounds incident. The out-of-bounds incident only came up in the argument

section, and only as a simple denial and brief counter-explanation: “Ortiz claims he

was retaliatorily moved out of [his unit] by Lt. Peterson on October 10, 2015. But

this is not true. Ortiz was moved because he went out of bounds.” R. vol. I at 128

(citation omitted). In support, defendants cited an unsigned November 2015

memorandum from “Birch OMR” to “Grievance Coordinator” providing (apparently)

the prison officials’ side of the story. R. vol. II at 111.

Thus, defendants presented barely any argument for summary judgment on the

out-of-bounds incident. Yet the district court’s opinion sets forth twelve bullet-

pointed “Undisputed Material Facts” regarding the incident (some of them several

sentences long), followed by seven substantial paragraphs of analysis. See Ortiz,

2019 WL 1376837, at *8–11.

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 We recognize that the special difficulties of conducting a pro se prisoner trial

frequently counsel in favor of double- or triple-checking whether a genuine issue of

material fact exists, even if it means going beyond the parties’ arguments. Moreover,

“[w]hen an issue or claim is properly before the court, the court is not limited to the

particular legal theories advanced by the parties, but rather retains the independent

power to identify and apply the proper construction of governing law.” Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).

But especially in these circumstances, the district court must also double- and

triple-check that it is following the standards governing summary judgment. We

have reviewed the district court’s enumeration of supposedly undisputed facts and we

conclude that certain material facts are genuinely disputed.

First, the district court accepted the above-mentioned “Birch OMR” memo as

undisputed, apparently because it was part of the Martinez report and Ortiz never

explicitly denied it. This anonymous memo asserts that “[d]ue to the nature of the

incident and issues with active gang members it was decided to place the out of

bounds inmates on TRO for safety and security of the institution.” R. vol. II at 111.

Ortiz’s evidence, although partly circumstantial, raises a genuine dispute about this

explanation, even if Ortiz did not specifically identify and refute the memo.

Second, the district court treated another Martinez report document—a

February 2016 narrative written by Peterson, responding to a later grievance—as

undisputed. The later grievance, which we could not locate in the record, apparently

re-raised Ortiz’s move to the SMU after his T.R.O. interview. Peterson wrote in

20
response, “The reason [Ortiz] was moved from Birch is he has stated in previous

grievances he was afraid of Birch Staff retaliating against him.” Id. at 130. The

district court relied on this as evidence undermining but-for causation. But

Peterson’s letter does not identify these “previous grievances,” and the earliest

grievance in the record expressing fear about staff retaliation was the October 21

grievance, written six days after Ortiz’s T.R.O. interview and transfer to the SMU.

Thus, Peterson’s explanation is impeachable and should not have been deemed

undisputed—and then used against Ortiz—at summary judgment.

More generally, the district court approached Ortiz’s retaliation claim as if he

bore the burden to prove that every assertion in support of his claim created a

genuine dispute of material fact. We recognize that Ortiz attributes a retaliatory

motive to essentially everything that happened to him for a few months after the out-

of-bounds incident, but inability to raise a genuine issue for trial about all of it does

not necessarily mean he fails to raise a genuine issue about any of it.

As we read Ortiz’s claim, the basic question is whether Anderson or Peterson,

or both, imposed an allegedly harsher punishment than normal for an out-of-bounds

charge—i.e., T.R.O. lockdown and then transfer to the SMU—because they wanted

to punish Ortiz for filing grievances. As to that, the evidence in the light most

favorable to Ortiz is as follows:

• in August, Peterson threatened Ortiz with bad consequences if he

continued the grievance process regarding the July 29 assault;

• following the out-of-bounds incident in October, Ortiz and Cruz were
21
 sent directly to T.R.O. lockdown—a harsher punishment than what they

had observed from previous out-of-bounds incidents;

• at Ortiz’s T.R.O. interview, Peterson complained that Ortiz’s grievance

following the July 29 assault had gotten him in trouble and had gotten a

senior supervisor transferred;

• at the same interview, Anderson criticized Ortiz regarding his

grievances and told Ortiz she did not want him in her housing unit;

• at Cruz’s T.R.O. interview, Peterson accused Ortiz of being a snitch;

• Anderson additionally charged Ortiz with cuff port tampering, despite

knowing that the cuff port was faulty—and Ortiz was eventually

acquitted of the charge;

• following their T.R.O. interviews, Ortiz and Cruz were sent to the

SMU—a significantly harsher punishment compared to previous out-of-

bounds punishments they had observed; and

• Peterson and Anderson submitted nothing in the Martinez report or at

summary judgment denying, or even providing context for, any of the

foregoing. 6

On Anderson’s and Peterson’s side of the ledger, we note that:

• Ortiz did not pursue his grievance of the July 29 assault, so, even under

his story, they had less of a motive to retaliate two months later; and

6
Anderson’s Martinez report declaration—but, notably, not Peterson’s—
denies calling Ortiz a snitch. See R. vol. III at 27, ¶ 8.

22
 • they treated Ortiz and Cruz equally (apart from the cuff port tampering

charge), thus undermining the inference that they were singling out

Ortiz based on his grievances.

On balance, however, we believe that a reasonable jury could still find that, but for a

desire to punish Ortiz for his grievances, Peterson and Anderson would not have

disciplined him as harshly. 7

This assumes, of course, that Peterson or Anderson (or both) caused Ortiz to

be placed in T.R.O. lockdown or sent to the SMU (or both). See Stidham v. Peace

Officer Standards & Training, 265 F.3d 1144, 1156–57 (10th Cir. 2001) (holding that

§ 1983 plaintiff must allege and prove each defendant’s liability for the constitutional

deprivation). They say nothing about this in the Martinez report, yet Ortiz

specifically inquired in his discovery requests about their involvement in these

decisions. Ortiz also asked for other information that might support his but-for case,

such as maintenance records relating to the cuff port and historical records about the

type of discipline imposed for out-of-bounds charges.

We must therefore vacate summary judgment on Ortiz’s retaliation claim

against Anderson and Peterson and remand for further proceedings. We will not

dictate what those proceedings should look like, other than to say that Ortiz must

7
A retaliation plaintiff must also prove that “the defendant’s actions caused
the plaintiff to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity.” Shero v. City of Grove, 510 F.3d 1196, 1203
(10th Cir. 2007). Defendants have never argued, here or below, that the conditions of
confinement in T.R.O. lockdown or the SMU fail to meet this standard.

23
receive a fair opportunity to seek discovery regarding retaliation under the same

standards that apply to discovery in any other case. Thus, the district court might

reopen discovery on retaliation generally, or it might revisit the motion to compel and

require Ortiz to specify which of his discovery requests he still wishes to enforce.

There may be other possibilities that we have not considered but that would be within

the district court’s discretion. And, concerning the discovery requests we have

specifically mentioned above, we cannot say on this record that the district court

would necessarily abuse its discretion if it looked at those requests on their merits

and then refused to compel defendants’ response. But we likewise cannot say on this

record that it was harmless to relieve defendants of that burden merely because they

produced a Martinez report.

For these reasons, we vacate and remand on the retaliation claim against

Anderson and Peterson and connected discovery issues. 8

VII. FAILURE TO PROVIDE ADEQUATE MEDICAL CARE

A. Additional Background

Immediately after the July 29 attack, prison staff escorted Ortiz to the medical

8
Ortiz also sued defendant “Ekkart” (actually Tanya Ekker, see R. vol. II at
48) for allegedly opening and reading his legal mail and discussing its contents with
other defendants, all with intent to retaliate against Ortiz for filing grievances. Ortiz
did not allege that this was connected to the out-of-bounds incident. The district
court granted summary judgment to Ekker because Ortiz had not “give[n] the
slightest hint that she had any way to even know about his history of grievances . . . ,
let alone retaliate against him for them.” Ortiz, 2019 WL 1376837, at *7. Ortiz does
not challenge this reasoning on appeal and has therefore abandoned his claim against
Ekker.

24
clinic. He reported “severe” pain in his jaw, neck, and a finger on his right hand. R.

vol. I at 157, ¶ 1. The medical staff relayed Ortiz’s condition to defendant Burnham,

a physician employed by the prison, who was apparently not on-site that day.

Burnham prescribed ibuprofen (800 mg).

The next day (July 30, 2015), Ortiz submitted a medical care request,

complaining of continuing pain in his jaw, neck, and finger. On July 31, 2015,

defendant Dennis, a physician’s assistant, examined Ortiz. Ortiz complained only of

jaw pain during that examination. Dennis saw no evidence of a fracture but

prescribed three days of ibuprofen (800 mg) and liquid meals (so Ortiz would not

need to chew) and ordered an x-ray of the jaw.

Later the same day, Dennis heard through a nurse that Ortiz was complaining

of right hand pain too, so Dennis authorized an x-ray of that hand. Unnamed prison

medical staff then attempted to perform the x-ray on Ortiz’s hand, but the equipment

was not working properly.

Ortiz submitted another medical care request on August 5. The next day, he

received the hand x-ray, which, according to the radiologist, revealed an “[a]ge

indetermina[te]” displacement injury and a “prior fracture,” but “[n]o acute fracture.”

R. vol. II at 326.

Dennis saw Ortiz again the day after that (August 7). Ortiz complained of

significant jaw pain but Dennis believed Ortiz was exaggerating. Dennis nonetheless

continued Ortiz’s liquid meal prescription for another week.

Ortiz again complained of hand/finger pain on September 27, and Dennis saw

25
Ortiz on September 30. Dennis noticed minor swelling, ordered x-rays again (which

revealed nothing new), and prescribed naproxen (500 mg) and physical therapy. That

was the last time Dennis saw Ortiz for a medical complaint relevant to this lawsuit.

In October and November 2015, Ortiz was scheduled for six physical therapy

appointments. He missed four of those appointments due to circumstances out of his

control. After the last missed appointment, the physical therapist (not a defendant

here) decided not to reschedule due to missed appointments. 9

In March 2016, Ortiz requested medical care for pain in his neck and

continuing problems with his finger (he could not bend it fully). Burnham—the

physician who prescribed ibuprofen on the day of the assault the previous summer—

saw Ortiz and ordered an MRI of his neck. Burnham turned down Ortiz’s request for

additional physical therapy.

Ortiz received the MRI but Burnham did not afterwards follow up. Ortiz

submitted another medical request in May 2017 and Burnham examined him again.

Burnham gave Ortiz a cervical pillow, but also told Ortiz “he would do nothing more

for [his] neck.” R. vol. I at 160, ¶ 15. Ortiz still lacks full mobility in his neck.

B. Analysis

“[T]o state a cognizable claim [for an Eighth Amendment violation due to

9
Defendants Sorenson and Sylvester were the prison guards who would have
transported Ortiz to the appointments he missed. The district court granted summary
judgment in their favor on Ortiz’s claim that they interfered with his medical care.
Ortiz does not argue on appeal that this was error, so he has abandoned his claim
against Sorenson and Sylvester.

26
inadequate medical care], a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs.” Estelle v.

Gamble, 429 U.S. 97, 106 (1976). This standard

involves both an objective and a subjective component.
The objective component is met if . . . [the medical need]
has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention. The
subjective component is met if a prison official knows of
and disregards an excessive risk to inmate health or safety.

Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks

and citations omitted).

But “a complaint that a physician has been negligent in diagnosing or treating

a medical condition does not state a valid claim of medical mistreatment under the

Eighth Amendment.” Estelle, 429 U.S. at 106. Thus, “where a doctor merely

exercises his considered medical judgment,” the plaintiff must show “an

extraordinary degree of neglect.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir.

2006). “Matters that traditionally fall within the scope of medical judgment are such

decisions as whether to consult a specialist or undertake additional medical testing.”

Id.

As the district court accurately noted, Burnham and Dennis treated Ortiz every

time he asked, and they always prescribed some sort of medicine, diagnostic test,

therapy, or other treatment. Ortiz therefore must show that Burnham’s treatment or

Dennis’s treatment (or both) displayed “an extraordinary degree of neglect.” Id. He

has not presented evidence from which a reasonable jury could reach that conclusion.

27
He instead asserts, without specifics, that they should have done more. But “a

prisoner who merely disagrees with a diagnosis or a prescribed course of treatment

does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d

803, 811 (10th Cir. 1999). We therefore affirm the district court’s grant of summary

judgment in favor of Burnham and Dennis.

VIII. SEALED PORTIONS OF THE RECORD

As noted previously, defendants filed most of the Martinez report under seal.

When this court prepared the record on appeal, see 10th Cir. R. 10.3(C) (providing

that the court prepares the record in pro se cases), the court maintained the seal but

ordered defendants to explain why those records were appropriately sealed. After

receiving defendants’ response, the clerk’s office referred the ultimate resolution to

this panel.

We may not seal the record unless there is “some significant interest that

outweighs the presumption in favor of open access to judicial records.” United States

v. Pickard, 733 F.3d 1297, 1300 (10th Cir. 2013) (internal quotation marks omitted).

Defendants say that most of the Martinez report documents are “classified as private,

protected, or controlled records under Utah Code Ann. § 63G-2-304, and, as such,

should not be disclosed to the public.” Aplee. Response re: Sealed Record (Resp.)

at 1–2 (Mar. 13, 2020). Assuming this state law should govern a federal court’s

decision whether to seal, the cited statute applies to “medical, psychiatric, or

psychological data about an individual.” Utah Code Ann. § 63G-2-304(1). Parts of

the Martinez report fit this description, but not all of it.

28
 Defendants further say that the Martinez report should remain sealed “to

maintain the institutional safety and control of the prison.” Resp. at 2. But they do

not explain how prison safety would be affected by unsealing the report. Apart from

the medical records, the report comprises declarations from defendants gathered for

purposes of the report itself, contemporaneous institutional reports about the July 29

attack, and Ortiz’s grievance file from October 2015 through May 2016. Records

such as these are routinely disclosed without restriction in prisoner litigation.

We further note that the Martinez report procedure is a court-ordered

mechanism to assist the court in evaluating the merits of the case. It places trust in

prison officials to fairly and thoroughly develop the relevant facts. The public has a

strong interest in seeing for itself what prison officials produce.

We conclude that only Ortiz’s medical records should remain under seal.

Accordingly, we order the clerk to

• file an unsealed version of volume II, minus pages 164–355 (Ortiz’s

medical records); and

• unseal volume III of the record, which contains no medical records.

IX. CONCLUSION

We affirm the district court’s judgment as to Ortiz’s failure-to-protect claim,

denial-of-medical-care claim, and retaliation claim as it relates to defendant Ekker.

We vacate the judgment as to Ortiz’s retaliation claim as it relates to defendants

Anderson and Peterson. We also vacate the district court’s denial of his motion to

compel discovery. We remand for proceedings consistent with this opinion. Finally,
29
we deny Ortiz’s motion to appoint appellate counsel.

Entered for the Court

Gregory A. Phillips
Circuit Judge

30