Requena (ID 48877) v. Roberts et al

Filing 60

ORDER ENTERED: Plaintiff's motion to appoint counsel 44 is denied. Plaintiff's motion for leave to discover witnesses, subpoena witnesses for deposition and/or for interrogatories 45 is denied without prejudice. Plaintiff's moti on for leave to reissue previous issuance of summons 47 is liberally construed as a motion for service and is granted. Plaintiff's motion for issuance of subpoena 48 is denied without prejudice. Plaintiff's motion for summary judgment 49 is denied. Plaintiff's motion for leave to file correct caption 52 is granted. The clerk of the court shall modify the caption to identify the defendants as Wendy Newkirk, Michael Cranston, and Levon Crotts. Plaintiff' motion for leave to file supplemental complaint 52 is denied. Plaintiff's motions for leave to submit evidence 53 , 54 & 57 and motion for leave to continue submission of evidence 56 are denied. The clerk of the court shall serve defendants New kirk, Cranston, and Crotts under the e-service pilot program in effect with the Kansas Department of Corrections (KDOC). The Clerk of the Court shall enter KDOC as an interested party on the docket for the limited purpose of preparing the Martinez r eport. Upon the filing of that report, KDOC may move for termination from this action. Signed by U.S. Senior District Judge Sam A. Crow on 03/25/19. Mailed to pro se party Adrian M. Requena and Attorney General for the State of Kansas by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ADRIAN M. REQUENA,
Plaintiff,
v.

CASE NO. 13-3043-SAC

WENDY NEWKIRK, MICHAEL CRANSTON,
and LEVON CROTTS,
Defendants.

O R D E R
This matter is a civil rights action filed under 42 U.S.C. § 1983.
Plaintiff, proceeding pro se, commenced this action while he was a
prisoner in state custody.1
On March 31, 2016, the Court dismissed this matter. On appeal,
the U.S. Court of Appeals for the Tenth Circuit remanded this matter
on plaintiff’s claim that his Eighth Amendment rights were violated
by the failure of defendants Newkirk, Cranston, and Crotts to protect
him from a beating that took place on June 30, 2012. Requena v. Roberts,
893 F.3d 1195 (10th Cir. 2018).
On January 7, 2019, the U.S. Supreme Court denied the petition
for writ of certiorari filed by petitioner. Requena v. Roberts, 139
S.Ct. 800 (Mem.) (Jan. 7, 2019).
The Court enters the present order to direct service of process,
to order the preparation of a report pursuant to Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978), and to address a number of motions filed
by the plaintiff.

1

Plaintiff has notified the Court of his release from custody.

Motion to appoint counsel (Doc. 44)
Plaintiff moves for the appointment of counsel. There is no
constitutional right to the appointment of counsel in a civil matter.
Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Durre v. Dempsey,
869 F.2d 543, 547 (10th Cir. 1989). Rather, the decision whether to
appoint counsel in a civil action lies in the discretion of the
district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
The party seeking the appointment of counsel has the burden to convince
the court that the claims presented have sufficient merit to warrant
the appointment of counsel. Steffey v. Orman, 461 F.3d 1218,
1223 (10th Cir. 2016)(citing Hill v. SmithKline Beecham Corp., 393 F.3d
1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel
appointed would have assisted [the movant] in presenting his strongest
possible case, [as] the same could be said in any case.” Steffey, 461
F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)). The Court should consider “the merits of the prisoner’s
claims, the nature and complexity of the factual and legal issues,
and the prisoner’s ability to investigate the facts and present his
claims.” Rucks, 57 F.3d at 979.
The Court declines to appoint counsel at this point in this
matter. It appears that plaintiff is able to present his claims, and
it is not yet clear how complex the relevant issues of law and fact
may be. If it becomes apparent that the appointment of counsel is
needed in this matter, the Court will reconsider this request.
Motion for leave to discover witnesses, subpoena witnesses for
deposition and/or for interrogatories (Doc. 45) and Motion for
issuance of subpoena (Doc. 48)
Plaintiff requests discovery in these motions. Because the

Court, elsewhere in this order, directs the preparation of a report
pursuant to Martinez v. Aaron,the Court will deny these motions
without prejudice. The purpose of the Martinez report is to provide
a written response by prison officials to a prisoner’s allegations,
supported by affidavits and internal reports. As plaintiff will be
provided with documents relevant to his claim upon the filing of the
report, it is the practice of the Court to stay discovery pending the
preparation and service of the Martinez report, which may require some
or all of the material sought by plaintiff. After that report has been
filed, plaintiff may renew his requests for discovery.
Motion for leave to reissue previous issuance of summons (Doc. 47)
Plaintiff seeks the issuance of summons on defendants Newkirk,
Cranston, and Crotts. As part of its order in this matter, the Court
will direct the service of the complaint upon these defendants
pursuant to the agreement for electronic service between the Kansas
Department of Corrections and the District of Kansas. To the extent
plaintiff requests service, the motion is granted.
Motion for summary judgment (Doc. 49)
Plaintiff moves for summary judgment based upon the order of
remand in this matter. Summary judgment is governed by Rule 56 of the
Federal Rules of Civil Procedure. Under Rule 56(a), summary judgment
is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). At this point, the plaintiff is not entitled to summary
judgment on his claim of an Eighth Amendment violation. Rather, a
response to that claim is directed in this order, and the parties will
have the opportunity to present their positions through their
pleadings and exhibits. Plaintiff’s motion for summary judgment is

premature and will be denied.
Motion for leave to file correct caption (Doc. 51)
Plaintiff moves the Court to modify the caption to show
defendants Newkirk, Cranston, and Crotts as the defendants in this
matter. The motion is granted.
Motion for leave to file supplemental complaint (Doc. 52)
Plaintiff moves for leave to file a supplemental complaint under
Fed. R. Civ. P. 15(d). Rule 15(d) states that “[o]n motion and
reasonable notice the court may, on just terms, permit a party to serve
a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.”
The Court has considerable discretion in deciding whether to allow
a supplemental pleading. Walker v. United Parcel Serv. Inc., 240 F.3d
1268, 1278 (10th Cir. 2001).
The Court has reviewed the supplemental complaint and denies the
motion. Plaintiff previously has filed two amended complaints and
numerous exhibits in this matter, and the material he presents in the
proposed supplemental proceeding does not appear to be material that
was not available earlier or that is closely related to the limited
issue identified upon remand, namely, whether the defendants violated
the Eighth Amendment by failing to adequately protect plaintiff from
harm from other prisoners.
Motions for leave to submit evidence (Docs. 53, 54, 57) and Motion
for leave to continue submission of evidence (Doc. 56)
In these motions, plaintiff attempts to add material to the
record which is unrelated to the claim on remand. While plaintiff may
pursue new claims in a new action, he offers no reason why this material
is properly considered in this action. These motions are denied.

The Martinez Report
The Court finds that the proper processing of plaintiff’s claim
alleging a violation of the Eighth Amendment cannot be achieved
without additional information from officials of the Hutchinson
Correctional Facility (HCF). See Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978); see also Hall v Bellmon, 935 F.2d 1106 (10th Cir. 1991).
Accordingly, the Court will direct officials of the HCF to prepare
and file a Martinez report.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to
appoint counsel (Doc. 44) is denied.
IT IS FURTHER ORDERED plaintiff’s motion for leave to discover
witnesses,

subpoena

witnesses

for

deposition

and/or

for

interrogatories (Doc. 45) is denied without prejudice.
IT IS FURTHER ORDERED plaintiff’s motion for leave to reissue
previous issuance of summons (Doc. 47) is liberally construed as a
motion for service and is granted as set forth herein.
IT IS FURTHER ORDERED plaintiff’s motion for issuance of subpoena
(Doc. 48) is denied without prejudice.
IT IS FURTHER ORDERED plaintiff’s motion for summary judgment
(Doc. 49) is denied.
IT IS FURTHER ORDERED plaintiff’s motion for leave to file
correct caption (Doc. 51) is granted. The clerk of the court shall
modify the caption to identify the defendants as Wendy Newkirk,
Michael Cranston, and Levon Crotts.
IT IS FURTHER ORDERED plaintiff’ motion for leave to file
supplemental complaint (Doc. 52) is denied.
IT IS FURTHER ORDERED plaintiff’s motions for leave to submit
evidence (Docs. 53, 54, and 57) and motion for leave to continue

submission of evidence (Doc. 56) are denied.
IT IS FURTHER ORDERED:
(1)

The clerk of the court shall serve defendants Newkirk,
Cranston, and Crotts under the e-service pilot program in
effect with the Kansas Department of Corrections (KDOC).

(2)

Upon the electronic filing of the Waiver of Service Executed
pursuant to the e-service program, KDOC shall have sixty (60)
days to prepare the Martinez report. Upon the filing of that
report, the Kansas Attorney General shall have an additional
sixty (60) days to answer or otherwise respond to the
complaint.

(3)

Officials responsible for the operation of the HCF are
directed to undertake a review of the subject matter of the
claim:
(a)

To ascertain the facts and circumstances; and

(b)

To consider whether any action can and should be taken
by the institution to resolve the subject matter of the
claim.

(4)

Upon completion of the review, a written report shall be
compiled which shall be filed with the Court and served on
plaintiff. The KDOC must seek leave of the Court if it wishes
to file any exhibit or portion of the report under seal or
without service on plaintiff. Statements of all witnesses
shall be in affidavit form. Copies of pertinent rules,
regulations, official documents, and, wherever appropriate,
the reports of medical or psychiatric examinations shall be
included in the written report. Any recordings related to
plaintiff’s claim also shall be included.

(5)

Authorization is granted to officials of the HCF to interview
all witnesses having knowledge of the facts, including
plaintiff.

(6)

No answer or motion addressed to the complaint shall be filed
until the Martinez Report required herein has been prepared.

(7)

Discovery by plaintiff is stayed until plaintiff has received
and reviewed defendants’ answer or response to the complaint
and the report ordered herein. This action is exempted from
the requirements imposed under Fed. R. Civ. P. 26(a) and 26(f).

IT IS FURTHER ORDERED that the Clerk of the Court shall enter
KDOC as an interested party on the docket for the limited purpose of
preparing the Martinez report ordered herein. Upon the filing of that
report, KDOC may move for termination from this action.
Copies of this order shall be transmitted to the parties and to
the Attorney General for the State of Kansas.
IT IS SO ORDERED.
DATED:

This 25th day of March, 2019, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge