Jamerson (ID 74123) v. Heimgartner et al

Filing 28

MEMORANDUM AND ORDER ENTERED: The Clerk of the Court shall serve Defendants 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 Report. 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 02/01/19. Mailed to pro se party James Lee Jamerson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES LEE JAMERSON,
Plaintiff,
v.

CASE NO. 17-3205-SAC

JAMES HEIMGARTNER, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights
complaint pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at El Dorado Correctional FacilityCentral in El Dorado, Kansas (“EDCF”).

The Court dismissed this action on April 25, 2018.

(Docs. 14, 15.) This matter is before the Court on remand from the Tenth Circuit Court of Appeals.
The Tenth Circuit affirmed dismissal of Count One of Plaintiff’s Complaint, but held with regard
to Counts Two and Three that Plaintiff’s district court filings “suggest he may be able to amend
his complaint to address the district court’s § 1997e(e) concerns.” (Doc. 22, at 11.) The Tenth
Circuit also vacated the denial of Plaintiff’s motion to amend to add the state law tort of outrage.
The Tenth Circuit also noted that if Plaintiff files an amended complaint that satisfies the Court’s
concerns about § 1997e(e), the Court will need to address equitable tolling. Id. at 12.
The Court entered an Order (Doc. 23) granting Plaintiff the opportunity to file a complete
and proper amended complaint. Plaintiff filed a Motion for Leave to Amend (Doc. 24) on
November 15, 2018, and a subsequent Motion for Leave to Amend (Doc. 25) on January 7, 2019.
The Court denied the motion at Doc. 24 as moot, and found the proposed amended complaint
attached to Plaintiff’s motion at Doc. 25–1 deficient for the reasons set forth in the Court’s Order
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at Doc. 26. The Court granted Plaintiff another opportunity to file a complete and proper amended
complaint. Plaintiff filed his Third Amended Complaint (Doc. 27) on January 28, 2019 (“TAC”).
Plaintiff alleges in his TAC that Defendants violated his Eighth and Fourteenth
Amendment rights by falsifying documents in order to hold Plaintiff in solitary confinement status
for more than three years. Plaintiff alleges he received a false disciplinary conviction because he
refused to put his life in danger by becoming an informant. Plaintiff alleges that Defendants, with
malice and under false pretenses, labeled Plaintiff as an inmate who conspired to move contraband
and a Security Threat Group Member (“STG”) of an unknown prison gang. Plaintiff alleges that
Defendants also violated the Kansas Tort Claims Act, K.S.A. 75-6101, and Section 9 of the Kansas
Bill of Rights. Plaintiff names as defendants: James Heimgartner, EDCF Warden; Douglas Burris,
KDOC Secretary; Tim Robinson, E.A.I. at Lansing Correctional Facility (“LCF”); (fnu) Baker,
Major at LCF; Amanda King, Mental Health Counselor at EDCF; Carrie Marlett, UT at EDCF;
Daniel Jackson, UT at EDCF; Laurie Rohling, UT at EDCF; (fnu) Johnson, Disciplinary Hearing
Officer at EDCF; and John Doe, Mental Health Counselor at LCF.
The Court finds that the proper processing of Plaintiff’s claims cannot be achieved without
additional information from appropriate officials of EDCF and LCF. 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 orders the appropriate officials of EDCF and LCF to prepare and file a Martinez Report.
Once the report has been received, the Court can properly screen Plaintiff’s claims under 28 U.S.C.
§ 1915.
IT IS THEREFORE ORDERED BY THE COURT that:
(1)

The Clerk of Court shall serve Defendants under the e-service pilot program in

effect with the Kansas Department of Corrections (“KDOC”).

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(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 AG/Defendants shall have an additional sixty (60) days to answer or
otherwise respond to the Third Amended Complaint.
(3)

Officials responsible for the operation of EDCF and LCF are directed to undertake

a review of the subject matter of the Third Amended 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 Third Amended Complaint; and
c.

To determine whether other like complaints, whether pending in this Court

or elsewhere, are related to this Third Amended Complaint and should be considered
together.
(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 certain exhibits or portions 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 claims shall also be included.
(5)

Authorization is granted to the officials of EDCF and LCF to interview all witnesses

having knowledge of the facts, including Plaintiff.
(6)

No answer or motion addressed to the Third Amended Complaint shall be filed

until the Martinez Report required herein has been prepared.

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(7)

Discovery by Plaintiff shall not commence until Plaintiff has received and reviewed

Defendants’ answer or response to the Third Amended 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 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 Plaintiff, to Defendants, and to the Attorney
General for the State of Kansas.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 1st day of February, 2019.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge

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