Lamm v. Grubbs et al
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
MICHAEL J. GRUBBS,
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.
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. §
Furthermore, § 1915(b)(1), requires the court to
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).
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;
Intelligence and Investigation (I&I) officer, LCF; and three John
Does, COs, LCF.
As the factual basis for this complaint, Mr. Lamm alleges as
On February 7, 2009, upon being returned to his cell in
the Intensive Management Unit (IMU) at LCF following a “shake
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
plaintiff suffering a bloody nose only.
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
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.”
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.
did not resist or give defendants any reason to beat him.1
carried to segregation.
Plaintiff was taken to the infirmary, his
injuries were examined and photographed and he was treated.
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.”
investigation and interviewed other inmates that had witnessed the
Speers reported that there was no wrongdoing, and no
action was taken.
He claims that Speers was thus “deliberately
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.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion
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.
for Leave to proceed without prepayment of fees (Doc. 2) is
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;
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.
Statements of all witnesses
regulations, official documents and, wherever appropriate, the
reports of medical or psychiatric examinations shall be included in
plaintiff’s claims shall also be included.
(4) Authorization is granted to the officials of the Kansas
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
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.
s/Sam A. Crow
U. S. Senior District Judge
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