Spurlock (ID 114673) v. English et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion for the Appointment of Counsel (Doc. 3 ) is denied without prejudice. The Clerk of Court shall serve Defendants Richard English and Sam Cline under the e-service pilot program in effect with t he 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/Defendant shall have an additional sixty (60) days to answer or otherwise respond to the Complaint. 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 07/29/20. Mailed to pro se party James Allen Spurlock by regular mail. (smnd)

Case 5:20-cv-03121-SAC Document 6 Filed 07/29/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES ALLEN SPURLOCK,
Plaintiff,
v.

CASE NO. 20-3121-SAC

RICHARD ENGLISH, 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 the El Dorado Correctional
Facility in El Dorado, Kansas (“EDCF”).
I. Nature of the Matter before the Court
Plaintiff alleges in his Complaint that Defendants failed to protect him in violation of his
Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff alleges that he
was placed in protective custody due to threats from gang members. Plaintiff was in protective
custody at Lansing Correctional Facility and then at Hutchinson Correctional Facility. Plaintiff
was transferred to EDCF and was placed in general population. Plaintiff was approached by gang
members and told he either needed to join their gang or “coverup/cut off” his swastika tattoo.
When Plaintiff refused to comply, he was beaten by two gang members. Plaintiff was directed by
staff to write a report about the incident, which he did. This information “got out” to the prison
population and Plaintiff was labeled a snitch.
Plaintiff was then placed in protective custody at EDCF. When Plaintiff explained to
Defendant English that he was in protective custody because he was afraid he would be attacked
again and possibly killed, English told Plaintiff on several occasions to “man-up & deal with it.”
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Plaintiff was told that the main gang members had either been transferred or were in the hole and
he did not need to worry for his safety.
Plaintiff alleges that on June 25, 2019, the protective custody unit he was in was removed
from EDCF and Plaintiff was then in general population. Plaintiff alleges that Defendant Cline
directed Defendant English to discontinue the protective custody program at EDCF. They no
longer brought meals to the protective custody unit and Plaintiff was forced to attend the chow
hall. Plaintiff requested placement in protective custody and filed grievances and wrote to the
Warden regarding his placement in general population. Plaintiff alleges that on August 4, 2019,
while in general population, he was assaulted by two gang members in his cell, suffered substantial
injuries and was transported to the hospital. Plaintiff was in the infirmary for several days
following the incident. Plaintiff was then placed back in protective custody. Plaintiff names Unit
Team Richard English and Warden Sam Cline as defendants and seeks compensatory and punitive
damages.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
(2).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

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(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A 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). On the other hand, “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).
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 ‘entitlement 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 Court of Appeals has explained “that, to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did
it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.

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Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. Discussion
“Prison and jail officials, as well as municipal entities that employ them, cannot absolutely
guarantee the safety of their prisoners. Nonetheless, they have a constitutional duty to take
reasonable steps to protect the prisoners’ safety and bodily integrity.” Wright v. Collison, 651 F.
App’x 745, 748 (10th Cir. 2016) (unpublished) (quoting Cox v. Glanz, 800 F.3d 1231, 1247–48
(10th Cir. 2015)). “To establish a cognizable Eighth Amendment claim for failure to protect an
inmate from harm by other inmates, the plaintiff must show that he [was] incarcerated under
conditions posing a substantial risk of serious harm, the objective component, and that the prison
official was deliberately indifferent to his safety, the subjective component.” Id. (citing Smith v.
Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006) (brackets and internal quotation marks omitted)).
The Court finds that the proper processing of Plaintiff’s claims cannot be achieved without
additional information from appropriate officials of EDCF. 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

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orders the appropriate officials of EDCF 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.
IV. Motion to Appoint Counsel
Plaintiff filed a Motion for the Appointment of Counsel (Doc. 3), arguing that he is
indigent, the issues are complex, he is in segregation with limited law library access, he has limited
knowledge of the law, and he has been unable to obtain counsel.
The Court has considered Plaintiff’s motion for appointment of counsel. There is no
constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543,
547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether
to appoint counsel in a civil matter lies in the discretion of the district court. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the court that
there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461
F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the
prisoner] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey,
461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to
investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).
The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a
colorable claim against a named defendant; (2) the issues are not complex; and (3) Plaintiff appears
capable of adequately presenting facts and arguments. The Court denies the motion without
prejudice to refiling the motion if Plaintiff’s Complaint survives screening.

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IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for the
Appointment of Counsel (Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED that:
(1)

The Clerk of Court shall serve Defendants Richard English and Sam Cline 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/Defendant shall have an additional sixty (60) days to answer or
otherwise respond to the Complaint.
(3)

Officials responsible for the operation of EDCF 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
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)

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.

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(5)

Authorization is granted to the officials of EDCF to interview all witnesses having

knowledge of the facts, including Plaintiff.
(6)

No answer or motion addressed to the 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

Defendants’ answer or response to the 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 July 29, 2020, in Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge

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