Lamm v. Grubbs et al

Filing 9

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed without prepayment of fees is granted. The clerk of the court shall prepare waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Procedure and summons to be served by a United States Marshal or a Deputy Marshal at no cost to plaintiff. The clerk of the court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report. Signed by Senior District Judge Sam A. Crow on 6/15/2011. (Mailed to pro se party Jeramie Lamm by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JERAMIE LAMM,
Plaintiff,
v.

CASE NO.

11-3019-SAC

MICHAEL J. GRUBBS,
et al.,
Defendants.
O R D E R
This civil complaint, 42 U.S.C. § 1983, was filed pro se by an
inmate of the El Dorado Correctional Facility, El Dorado, Kansas.
Having examined the materials filed, the court finds as follows.

MOTION TO PROCEED WITHOUT FEES
Plaintiff has filed a motion for leave to proceed in forma
pauperis (Doc. 2), and has submitted an Inmate Account Statement in
support as statutorily mandated.

Under 28 U.S.C. § 1915(b)(1), a

plaintiff granted such leave is not relieved of the obligation to
pay the full fee of $350.00 for filing a civil action.

Instead,

being granted leave to proceed in forma pauperis merely entitles an
inmate to proceed without prepayment of the full fee, and to pay
the filing fee over time through payments deducted automatically
from his inmate trust fund account as authorized by 28 U.S.C. §
1915(b)(2).

Furthermore, § 1915(b)(1), requires the court to
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assess an initial partial filing fee of twenty percent of the
greater of the average monthly deposits or average monthly balance
in the prisoner’s account for the six months immediately preceding
the date of filing of a civil action.

However, where an inmate has

no means by which to pay an initial partial filing fee, the
prisoner shall not be prohibited from bringing a civil action.
U.S.C. § 1915(b)(4).

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Having carefully considered the plaintiff’s

financial records, the court finds no initial partial filing fee
may be imposed at this time due to plaintiff’s limited resources,
and grants plaintiff leave to proceed without prepayment of fees.
The court reiterates that plaintiff remains obligated to pay the
$350.00 filing fee from payments automatically collected from his
inmate trust fund account as funds become available.

FACTUAL ALLEGATIONS AND CLAIMS
Plaintiff names as defendants: Michael Grubbs, Correctional
Officer (CO), Lansing Correctional Facility, Lansing, Kansas (LCF);
Andrew Garcia, CO, LCF; Kyle Conord, CO, LCF; Adam Hoover, CO, LCF;
Terry

Avery,

CO,

LCF;

Yvonne

Sieg,

CO,

LCF;

John

Speer,

Intelligence and Investigation (I&I) officer, LCF; and three John
Does, COs, LCF.
As the factual basis for this complaint, Mr. Lamm alleges as
follows.

On February 7, 2009, upon being returned to his cell in

the Intensive Management Unit (IMU) at LCF following a “shake

2

down,” he made a couple comments upon seeing it left “in disarray”
and the bed unmade.

Defendant Garcia heard him say “this is

bullshit,” and entered the cell where he and plaintiff ended up in
a

“physical

confrontation.”

This

confrontation

plaintiff suffering a bloody nose only.

resulted

in

Conord and Hoover entered

the cell and attempted to hold plaintiff down while Garcia was on
top of him.

Hoover called an emergency code, but before other COs

arrived, plaintiff had been restrained with his hands cuffed behind
his back.

When plaintiff was being escorted out of his cell, he

made another comment that Garcia was in the wrong.

John Doe #1

slammed plaintiff on the ground and plaintiff was beaten. Numerous
officers did nothing to intervene including defendants Garcia,
Conord, Hoover, Avery, and Sieg.

John Doe #1, John Doe #2, John

Doe #3, and defendant Gruggs carried him “hog-tied” and banged his
head into an entry, dropped him on the floor, used excessive force,
and beat him physically while escorting him away from his cell.
The blow to his head was “so severe” that plaintiff almost lost
consciousness and sustained a cut and “significant swelling.”

The

three John Doe defendants were wearing black, which meant they were
SST (Special Security Team).

Plaintiff was carried out of view of

the camera where defendants Grubbs and Does again dropped him,
slammed him into the concrete, punched and kicked him.

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Plaintiff

did not resist or give defendants any reason to beat him.1
carried to segregation.

He was

Plaintiff was taken to the infirmary, his

injuries were examined and photographed and he was treated.

His

injuries included cuts to his face and head, a swollen left ear and
forehead, a sore ankle and a bloody mouth.
Plaintiff asserts that the acts of defendants were done
maliciously and sadistically and amounted to cruel and unusual
punishment in violation of the Eighth Amendment.

He also claims

defendants committed the “tort of assault and battery.”
also

alleges

that

defendant

Speers

conducted

Plaintiff

an

internal

investigation and interviewed other inmates that had witnessed the
beatings.

Speers reported that there was no wrongdoing, and no

action was taken.
indifferent”

to

punishment.
capacities for

He claims that Speers was thus “deliberately
his

right

Plaintiff

to

sues

be

free

defendants

of
in

cruel
their

and

unusual

individual

money damages.

The court finds that proper processing of plaintiff’s claims
cannot be achieved without additional information from appropriate
officials of the LCF.

See Martinez v. Aaron, 570 F.2d 317 (10th

Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir.
1991).
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion

1

Plaintiff neglects to mention in his complaint, that which is
revealed in his exhibits. He was given two disciplinary reports as a result of
this incident, and may face charges for assault on a correctional officer.

4

for Leave to proceed without prepayment of fees (Doc. 2) is
granted.
IT IS FURTHER ORDERED:
(1) The clerk of the court shall prepare waiver of service
forms pursuant to Rule 4(d) of the Federal Rules of Procedure and
summons, to be served by a United States Marshal or a Deputy
Marshal at no cost to plaintiff absent a finding by the court that
plaintiff is able to pay such costs.

The report required herein,

shall be filed no later than sixty (60) days from the date of this
order, and the answer shall be filed within twenty (20) days
following the receipt of that report by counsel for defendant.
(2) Officials responsible for the operation of the Lansing
Correctional Facility are directed to undertake a review of the
subject matter of the complaint:
(a) to ascertain the facts and circumstances;
(b) to consider whether any action can and should be taken by
the institution to resolve the subject matter of the complaint;
(C)

to

determine

whether

other

like

complaints,

whether

pending in this court or elsewhere, are related to this complaint
and should be considered together.
(3) Upon completion of the review, a written report shall be
compiled which shall be attached to and filed with the defendant’s
answer or response to the complaint.
shall

be

in

affidavit

form.

Statements of all witnesses

Copies

5

of

pertinent

rules,

regulations, official documents and, wherever appropriate, the
reports of medical or psychiatric examinations shall be included in
the

written

report.

Any

tapes

of

the

incident

underlying

plaintiff’s claims shall also be included.
(4) Authorization is granted to the officials of the Kansas
Department

of

Corrections

to

interview

all

witnesses

having

knowledge of the facts, including the plaintiff.
(5) No answer or motion addressed to the complaint shall be
filed until the Martinez report requested herein has been prepared.
(6) Discovery by plaintiff shall not commence until plaintiff
has received and reviewed defendant’s answer or response to the
complaint and the report required herein.

This action is exempted

from the requirements imposed under F.R.C.P. 26(a) and 26(f).
Copies of this Order shall be transmitted to plaintiff, to
defendants, to the Secretary of Corrections, to the Attorney
General of the State of Kansas, and to the Finance Office of the
facility where plaintiff is currently incarcerated.
IT IS FURTHER ORDERED the clerk of the court shall enter the
Kansas Department of Corrections as an interested party on the
docket for the limited purpose of preparing the Martinez report
ordered herein.

Upon the filing of that report, the KDOC may move

for termination from this action.
IT IS SO ORDERED.
Dated this 15th day of June, 2011, at Topeka, Kansas.
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s/Sam A. Crow
U. S. Senior District Judge

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