McCoy (ID 76894) v. Kansas Department of Corrections et al
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.,
CASE NO. 16-3239-SAC-DJW
KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
MEMORANDUM AND ORDER FOR MARTINEZ REPORT
Plaintiff, a state prisoner appearing pro se and in forma
U.S.C. § 1983.
Mr. McCoy alleges that his Eighth Amendment
Response Team (“SORT”) used excessive force against him during a
(“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.
the light came on, the first thing he noticed was “a hand with
a[n] object in it coming at me.”
He got up off the bed and saw
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
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.
felt legs wrap around his neck, and he felt his arms being
pushed up at an unnatural angle causing him “extreme pain.”
referring to Plaintiff’s arms or wrist and realized Defendant
Plaintiff lost consciousness.
When he regained consciousness,
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
bruising on his forehead, and cuts and marks on his neck and
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).”
#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).
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
Police, 491 U.S. 58, 70-71 (1989).
However, it is an interested
party for the purpose of preparing the Martinez report ordered
Corrections may move for dismissal from this action.
IT IS THEREFORE ORDERED:
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.
The report required herein shall be filed no later
following receipt of that report by counsel for Defendants or as
set forth in the waiver of service, whichever is later.
Officials responsible for the operation of the Lansing
Correctional Facility are directed to undertake a review of the
subject matter of the complaint:
To ascertain the facts and circumstances;
To consider whether any action can and should be
taken by the institution to resolve the subject matter of
the complaint; and
whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
Upon completion of the review, a written report shall
defendants’ answers or responses to the complaint.
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.
Lansing Correctional Facility to interview all witnesses having
knowledge of the facts, including the plaintiff.
No answer or motion addressed to the complaint shall
be filed until the
report required herein has been
responses to the complaint and the report ordered herein.
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.
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.
This 13th day of July, 2017, at Kansas City,
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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