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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