McCoy (ID 76894) v. Kansas Department of Corrections et al
Filing
12
MEMORANDUM AND ORDER ENTERED: The Clerk of the Court shall issue summons and a copy of the Complaint, along with this Order, to be served on the Kansas Department of Corrections, pursuant to Rule 4(j) of the Federal Rules of Civil Procedure, and sha ll prepare waiver of service forms for the remaining defendants, pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, all to be served at no cost to Plaintiff absent a finding by the Court that Plaintiff is able to pay such costs. Plaintiff's motion for issuance of summons and waiver of service 11 is denied as moot. Signed by Magistrate Judge David J. Waxse on 07/13/17. Mailed to pro se party Deron McCoy, Jr. by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON MCCOY, JR.,
Plaintiff,
v.
CASE NO. 16-3239-SAC-DJW
KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
MEMORANDUM AND ORDER FOR MARTINEZ REPORT
Plaintiff, a state prisoner appearing pro se and in forma
pauperis,
filed
U.S.C. § 1983.
this
rights
were
civil
rights
complaint
pursuant
to
42
Mr. McCoy alleges that his Eighth Amendment
violated
when
members
of
the
Special
Operations
Response Team (“SORT”) used excessive force against him during a
shakedown
of
his
cell
at
the
Lansing
Correctional
Facility
(“LCF”) on January 21, 2016.
According to Plaintiff, he was lying on his bed in his cell
with the light out.
He heard his cell door open and saw figures
entering but could not tell who they were in the darkness.
When
the light came on, the first thing he noticed was “a hand with
a[n] object in it coming at me.”
1
He got up off the bed and saw
the
hand
with
the
thrusting motion.
object
moving
toward
him
in
an
upward
It appeared to Mr. McCoy that the person
intended to stab him with the object.
He instinctively grabbed
the object without making any contact with the person holding it
and threw the object out of the immediate vicinity.
At that point, Plaintiff saw that Defendant Mosher had been
holding the object and that Defendants McCurrie and Acker were
with him.
Once he was able to identify the people who entered
his cell, he submitted to their order to get on the ground and
put his hands behind his back.
While Plaintiff was lying on the
ground, Defendant McCurrie “knee dropped” onto Plaintiff’s jaw,
causing his forehead to strike the cement floor of the cell.
He
felt legs wrap around his neck, and he felt his arms being
pushed up at an unnatural angle causing him “extreme pain.”
Plaintiff
heard
Defendant
McCurrie
say,
“Just
break
it”
referring to Plaintiff’s arms or wrist and realized Defendant
McCurrie
was
the
person
applying
Plaintiff lost consciousness.
he
was
standing
with
his
the
leg
lock
chokehold.
When he regained consciousness,
arms
handcuffed
behind
him
with
Defendant McCurrie in front of him and Defendants Mosher and
Acker behind holding his arms.
Mr. McCoy was then taken to the LCF medical clinic for
evaluation and moved to restrictive housing.
He alleges he
suffered injury to a previously injured shoulder, had a knot and
2
bruising on his forehead, and cuts and marks on his neck and
wrists.
Plaintiff further alleges he was told that Defendants
McCurrie, Mosher and Acker “ran into [his] cell by accident and
was looking for ‘Jason McCoy’ who was in cell 450 A-2 cellhouse
directly above cell 350 (the cell [Plaintiff] lived in).”
Doc.
#1, p. 6.
The Court finds that the proper processing of Plaintiff’s
claims cannot be achieved without additional information from
appropriate officials of the Lansing Correctional Facility.
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
See
Accordingly,
the Court orders the appropriate officials of LCF to prepare and
file a Martinez report.
Once the report and Defendants’ answers
have been received, the Court can properly screen Plaintiff’s
claims under 28 U.S.C. § 1915.
The Court notes that the Kansas Department of Corrections
is not a proper party as it is a state agency entitled to
Eleventh Amendment immunity and is not a “person” subject to
suit under § 1983.
See Blackburn v. Dep't of Corr., 172 F.3d
62, *1 (Table) (10th Cir. 1999) (unpublished); citing Buchwald v.
University of New Mexico School of Medicine, 159 F.3d 487, 494
n.
3
(10th
Cir.
1998);
and
Will
Police, 491 U.S. 58, 70-71 (1989).
v.
Michigan
Dep't
of
State
However, it is an interested
party for the purpose of preparing the Martinez report ordered
3
herein.
Upon
the
filing
of
that
report,
the
Department
of
Corrections may move for dismissal from this action.
IT IS THEREFORE ORDERED:
(1)
The Clerk of the Court shall issue summons and a copy
of the Complaint, along with this Order, to be served on the
Kansas Department of Corrections, pursuant to Rule 4(j) of the
Federal Rules of Civil Procedure, and shall prepare waiver of
service forms for the remaining defendants, pursuant to Rule
4(d) of the Federal Rules of Civil Procedure, all to be served
at no cost to Plaintiff absent a finding by the Court that
Plaintiff is able to pay such costs.
(2)
than
The report required herein shall be filed no later
sixty
Defendants’
(60)
days
answers
from
shall
the
be
date
filed
of
within
this
order,
twenty
(20)
and
days
following receipt of that report by counsel for Defendants or as
set forth in the waiver of service, whichever is later.
(3)
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; and
4
c.
To
determine
whether
other
like
complaints,
whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
(4)
be
Upon completion of the review, a written report shall
compiled
which
shall
be
attached
to
and
filed
with
the
defendants’ answers or responses to the complaint.
Statements
of
Copies
all
witnesses
shall
be
in
affidavit
form.
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 of the
incident underlying Plaintiff’s claims shall also be included.
(5)
Authorization
is
granted
to
the
officials
of
the
Lansing Correctional Facility to interview all witnesses having
knowledge of the facts, including the plaintiff.
(6)
No answer or motion addressed to the complaint shall
be filed until the
Martinez
report required herein has been
prepared.
(7)
Plaintiff
Discovery
has
by
received
Plaintiff
and
shall
reviewed
not
commence
Defendants’
until
answers
responses to the complaint and the report ordered herein.
or
This
action is exempted from the requirements imposed under Fed. R.
Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED Plaintiff’s motion for issuance of
summons and waiver of service (Doc. #11) is denied as moot.
5
Copies of this order shall be transmitted to Plaintiff, to
Defendants, and to the Attorney General for the State of Kansas.
IT IS SO ORDERED.
DATED:
This 13th day of July, 2017, at Kansas City,
Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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