McCoy (ID 76894) v. Burris et al

Filing 11

MEMORANDUM AND ORDER ENTERED: The Clerk of Court shall serve Defendants under the e-service pilot program in effect with the Kansas Department of Corrections ("KDOC"). 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 Complaint. Officials responsib le for the operation of HCF are directed to undertake a review of the subject matter of the Amended Complaint. Upon completion of the review, a written report shall be compiled which shall be filed with the Court and served on Plaintiff. The Clerk of 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 08/14/19. 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. 18-3077-SAC

DOUGLAS BURRIS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although
Plaintiff is currently incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas,
the claims giving rise to his Complaint occurred during his incarceration at the Hutchinson
Correctional Facility in Hutchinson, Kansas (“HCF”).
In his original Complaint, Plaintiff alleges that while he was an inmate at HCF his
constitutional rights were violated when Defendants opened his legal mail outside of his
presence. Plaintiff alleges that his legal mail was opened outside of his presence on three
occasions. On April 7, 2017, UTS Drinkwater handed Plaintiff legal mail with a notation
“opened in error by storeroom.” When Plaintiff pointed out that his legal mail had been opened,
UTS Drinkwater stated that he would look into the situation to see what had happened and to
make sure it did not happen again. On April 10, 2017, UTS Drinkwater again delivered legal
mail to Plaintiff that had been opened outside of Plaintiff’s presence and was signed for by
Defendant Hamby.
Plaintiff filed a grievance, and on April 20, 2017, received a response from Defendant
Nickels, the UTM of A-cellhouse at HCF, stating that the problem had been addressed.
Unsatisfied with this response, Plaintiff forwarded his grievance to the warden. The warden
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responded, stating that the “storeroom staff have been educated in the proper procedure in
handling legal material mistakenly delivered to their location. I am confident this has been
corrected and should not happen again.” Unsatisfied with this response, Plaintiff appealed his
grievance to the KDOC Secretary of Corrections on May 21, 2017. On May 30, 2017, the
Secretary of Corrections’ designee, Defendant Burris, responded stating that “the response
rendered to the inmate by staff at the facility is appropriate.” On July 17, 2017, UTS Drinkwater
again gave Plaintiff legal mail that had been opened and resealed, with a note stating that it was
“received from the storeroom already opened.”
Plaintiff alleges that all three pieces of legal mail were marked “attorney client
communication” in quarter-inch letters, and that Defendants “intentionally, willfully, maliciously
and with reckless and callous indifference violated Plaintiff’s rights by opening and reading the
Plaintiff’s legal correspondence from Plaintiff’s attorney.” Plaintiff also alleges Defendants
Burris, Schnurr, Richard Roe Mailroom Supervisor, and John Doe Storeroom Supervisor, failed
to properly train and supervise Defendants Hamby, Zolam, Keen, Turner, John Doe Mailroom
Worker and John Doe Storeroom Worker in the proper handling of legal mail. Plaintiff also
claims that Defendants Burris, Schnurr, Nickels, Richard Roe Mailroom Supervisor, and John
Doe Storeroom Supervisor, failed to stop the other Defendants from opening and reading
Plaintiff’s properly-identified legal mail. Plaintiff also alleges that for the three instances when
his legal mail was opened, there was a delay of several days in receiving his legal mail because
Defendants were withholding his mail “in an effort to try and conceal the fact that the Plaintiff’s
legal mail had been opened and read outside of Plaintiff’s presence.”
The Court entered a Memorandum and Order and Order to Show Cause (Doc. 5)
(“MOSC”) directing Plaintiff to show good cause why his Complaint should not be dismissed or

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to file a proper amended complaint to cure the deficiencies set forth in the MOSC.

In the

MOSC, the Court noted that Plaintiff alleges that his legal mail was opened outside of his
presence on three occasions while he was incarcerated at HCF. According to the Kansas Adult
Supervised Population Electronic Repository (“KASPER”), Plaintiff was incarcerated at HCF
from approximately March 22, 2017, to January 29, 2018. Plaintiff does not allege that his legal
mail was improperly opened at HCF after the alleged incident on July 17, 2017. The Court
found that although Plaintiff makes a conclusory statement that Defendants acted “intentionally,
willfully, maliciously and with reckless and callous indifference,” a pro se litigant’s “conclusory
allegations without supporting factual averments are insufficient to state a claim upon which
relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
at 555 (citations omitted). The complaint’s “factual allegations must be enough to raise a right to
relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id.
at 555, 570.
The Tenth Circuit has held that where prison officials opened one piece of
constitutionally protected mail by accident, “[s]uch an isolated incident, without any evidence of
improper motive or resulting interference with [the inmate’s] right . . . of access to the courts,
does not give rise to a constitutional violation.” Florence v. Booker, 23 F. App’x 970, 972 (10th
Cir. 2001) (citing Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990)). Likewise, this Court
has held that where a plaintiff has alleged merely two isolated incidents in which jail officials
opened legal mail, plaintiff “must therefore show either an improper motivation by defendants or
denial of access to the courts.” Thompson v. Hooper, No. 05-3470-JWL, 2006 WL 1128692, at

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*4 (D. Kan. April 25, 2006) (citing Florence, 23 F. App’x at 972); see also Bagguley v. Barr,
893 F. Supp. 967, 972 (D. Kan. 1995) (“[A]ssuming these three envelopes were opened in
violation of the applicable federal regulations, such conduct, under the circumstances of this
case, does not rise to the level of a constitutional violation.”); Williams v. Armstrong, No. 123136-SAC, 2013 WL 812185, at *4 (D. Kan. March 5, 2013) (claim dismissed where prisoner’s
legal mail was opened on one or more occasions and was explained to him as an error); Elrod v.
Swanson, 478 F. Supp. 2d 1252, 1275 (D. Kan. 2007) (plaintiff could not show injury from
alleged opening of legal mail where plaintiff did not argue interference with communication with
counsel and did not show anything more than an inadvertent mistake by prison officials);
Rashaw-Bey v. Carrizales, No. 09-3075-JAR, 2010 WL 3613953, at *8 (D. Kan. Sept. 3, 2010)
(inadvertent opening of three envelopes with no allegation of deliberate conduct on part of prison
officials insufficient to establish a First Amendment constitutional violation). Because Plaintiff
did not allege improper motive or interference with access to the courts or counsel, the Court
found that he failed to allege a constitutional violation and that his claim was subject to
dismissal.
Plaintiff filed an Amended Complaint (Doc. 10) in which he continues to only allege the
three instances of his legal mail being opened, but now he makes the allegation that the Warden,
John Doe Mailroom Supervisor, and Richard Roe Mailroom Supervisor directed the other
defendants to open Plaintiff’s mail. (Doc. 10, at 6, 8.)

Plaintiff then asserts that his legal mail

was regarding another pending case in which he was suing two Reno County Sheriff’s Officers
and three Hutchinson Police Department Officers, and included copies of motions that were filed
in that case.

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Plaintiff alleges that on April 5, 2017, Defendant Hamby opened and read his legal mail
and informed Warden Schnurr of the information concerning the civil action against the five
defendants, who were Hutchinson residents and one of whom was currently employed at HCF.
Plaintiff alleges that Defendant Hamby knew the defendants in that case because they were
Hutchinson residents. (Doc. 10, at 12.) Plaintiff alleges that “Defendant Schnurr then advised
Defendant Hamby to forward the legal mail to him (Schnurr) and to intercept any additional
legal mail sent to Plaintiff Mr. McCoy from the law firm of Shook, Hardy & Bacon and to open
the parcel, read the contents, and to advise him of content contained within the documents.”
(Doc. 10, at 10.) Plaintiff alleges that the mail was forwarded to the Warden, who read the mail
and then returned it to the HCF mailroom, where Defendant Keen then opened and read the
documents. Id. Plaintiff alleges his legal mail that was received at HCF on April 10, 2017, was
read by Hamby, and then Hamby relayed the contents to Schnurr before forwarding the mail to
the mailroom, where Defendant Keen decided to read the contents before forwarding the mail to
Plaintiff. (Doc. 10, at 12.)

Regarding the last incident, Plaintiff alleges that his legal mail was

received at HCF on July 12, 2017, and Defendant Zolam read his mail and relayed the contents
to Schnurr and then forwarded the mail to Schnurr, who read the contents before forwarding the
mail to the mailroom where Defendant Turner then read the contents before forwarding it to
Plaintiff.
The Court liberally construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v.
Blake, 469 F.3d 910, 913 (10th Cir. 2006).

Because the Court must accept all well-pleaded

allegations in the Amended Complaint as true, the Court finds that the proper processing of

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Plaintiff’s claims cannot be achieved without additional information from appropriate officials of
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 orders the appropriate officials of HCF 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”).
(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 Complaint.
(3)

Officials responsible for the operation of HCF are directed to

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

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

or elsewhere, are related to this 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

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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 HCF to interview all

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

No answer or motion addressed to the Amended Complaint shall

be filed until the Martinez Report required herein has been prepared.
(7)

Discovery by Plaintiff shall not commence until Plaintiff has

received and reviewed Defendant’s answer or response to the 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 14th day of August, 2019.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge

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