Williams (ID 117920) v. Zmuda et al

Filing 32

MEMORANDUM AND ORDER ruling on multiple motions; SEE WRITTEN ORDER for details. Denying without prejudice 12 Plaintiff's Motion to Compel the KDOC to Provide Information; finding as moot 17 Plaintiff's Motion to Inform the Court of Def ault of Legal Suspense; granting 18 Plaintiff's Motion to Request Information; granting in part and finding moot in part 19 Plaintiff's Motion to Request Status/Decision; granting in part and denying in part 20 Plaintiff's Motio n for the Court to Compel the Kansas Department of Corrections to Provide Copies; denying 21 Plaintiff's Motion to Strike Exhibit 24 to the Martinez Report; granting in part and denying in part 23 Defendants' motion for extension of t ime; granting 25 Defendants' Motion for Screening; granting in part and denying in part 28 Plaintiff's Motion to Compel Speedy Delivery; denying without prejudice 31 Plaintiff's Motion to Inform the Courts. Defendants are gran ted an extension of time until June 18, 2021, in which to answer or otherwise respond to Plaintiff's Complaint. The Court directs the Clerk to provide Plaintiff with a current copy of the docket in this case by U.S. Mail. Signed by Magistrate Judge Gwynne E. Birzer on 6/7/21. Mailed to pro se party Darren L. Williams at HUTCHINSON Correctional Facility, PO Box 1568, Hutchinson, KS 67504 by regular mail. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARREN L. WILLIAMS,
Plaintiff,
v.
JEFF ZMUDA, et al.,
Defendants.

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Case No. 20-3277-JWB-GEB

ORDER
Plaintiff, a state prisoner appearing pro se, filed this civil rights complaint pursuant
to 42 U.S.C. § 1983. The events giving rise to his Complaint occurred during his
incarceration at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). On
March 10, 2021, the Court entered a Memorandum and Order (ECF No. 6) directing the
appropriate officials of HCF to prepare and file a Martinez Report. The Martinez Report
(ECF No. 9) was filed on April 8, 2021. This matter is before the Court on multiple motions
filed by the parties.
Plaintiff filed a Motion to Inform the Court of Default of Legal Suspense (ECF No.
17) suggesting that Defendants have failed to timely respond to the Complaint. Plaintiff
points to language in the Court’s order (ECF No. 6) providing an answer should be filed
30 days following submission of the Martinez Report. Because the Court is granting an
extension of time to file a responsive pleading as set forth below, Plaintiff’s motion (ECF
No. 17) is found to be MOOT.

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Plaintiff also filed a Motion to Request Information (ECF No. 18) seeking
clarification as to why this case was reassigned to a different judge. Plaintiff seeks an
explanation of “why Senior District Judge Same A. Crow has recused himself” or what
other reasons exist for the reassignment. (Id.) The Court GRANTS this motion to the extent
the Court formally informs Plaintiff that Judge Crow did not recuse from this case, but
rather this case was reassigned in keeping with the practice in the District of Kansas of
reassigning pro se prisoner cases after the case proceeds past the initial screening. This
case was reassigned as per the normal procedure.
Plaintiff filed a Motion to Request Status/Decision (ECF No. 19) requesting the
status of his pending motions and other filings. The Court finds the motion (ECF No. 19)
as MOOT, in part, in light of this Order ruling on pending motions. The Court GRANTS
the motion in part by directing the Clerk to provide Plaintiff with a copy of the docket in
this case.
Additionally, Plaintiff filed a Motion for the Court to Compel the Kansas
Department of Corrections to Provide Copies (ECF No. 20) asking the Court to compel
the KDOC to provide Plaintiff with copies of all filings. The Court GRANTS the motion
in part, to the extent the Clerk is providing Plaintiff with a copy of the docket so he has the
opportunity to ensure possesses copies of all documents filed. The Court also DENIES the
motion in part without prejudice to later refiling. The KDOC is obligated to provide copies;
however, Plaintiff has not set forth a particular document he failed to receive. In fact, he
has responded to the Martinez Report and other documents filed in this case. If Plaintiff

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believes he has not received a copy of a particular filing after reviewing the docket in this
case, he can request a copy at that time.
Plaintiff also filed two discovery-related motions: a Petition for the Court to Compel
the KDOC to Provide Information (ECF No. 12), and a Motion to Strike Defendants’
Exhibit 24 (ECF No. 21). First, Plaintiff’s motion to compel (ECF No. 12) is DENIED
without prejudice. Pursuant to Fed. R. Civ. P. 26(d), a party may not seek discovery before
the parties have conferred as required by Rule 26(f), except in a proceeding exempted from
initial disclosure under Rule 26(a)(1)(B), or when authorized by the rules, by stipulation,
or by court order.1 Although a pro se prisoner petition is technically exempted from initial
disclosures and the Rule 26(f) conference under Rule 26(A)(1)(B)(iv), given the procedural
posture of this case and because Defendants have yet to respond to the Complaint, the Court
finds the discovery requested by Plaintiff premature at this time.
Plaintiff’s Motion to Strike (ECF No. 21) is also DENIED. The KDOC sought
permission to file Exhibit 24 to the Martinez Report under seal (see Motion, ECF No. 7),
and District Judge Sam E. Crow considered the request after a review of the information
presented. (Order, ECF No. 8.) This Court will not now second-guess the prior decision of
the Court. Furthermore, given the issues in this matter, the Court finds the information at
least minimally relevant to the claims and defenses of the parties—the underlying
reasoning for scrutiny of Plaintiff’s video visitation.
Defendants Zmuda and Burris filed a Motion for Extension of Time to File
Responsive Pleading (ECF No. 23) seeking an extension of time until June 16, 2021, to
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Fed. R. Civ. P. 26(d).
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file a responsive pleading, due to lack of notice of the filing of the Martinez report and
administrative errors in the Attorney General’s office. Plaintiff filed responses (ECF Nos.
24, 27) objecting to Defendants’ request for an extension of time. Defendants also filed a
Motion for Screening (ECF No. 25) asking the Court to screen Plaintiff’s Complaint in
light of the Martinez Report. Defendants ask the Court to extend the time to file a
responsive pleading in the event the case survives screening. They seek an extension of
time until 30 days after the Complaint has been screened. (ECF No. 25 at 3.) Plaintiff filed
a response (ECF No. 26) indicating although he opposes an extension of the responsive
pleading, he is not opposed to screening. On review of the briefing, the Court GRANTS
in part and DENIES in part Defendants’ motion for extension of time (ECF No. 23). Given
the finding on screening below, the screening issue is now decided and further delay of the
responsive pleading is unnecessary. Given the history of this case, and Defendants request
for answer on June 16, a 30-day extension appears excessive. Defendants’ responsive
pleading is due June 18, 2021, which provides them approximately 10 days to complete
their responsive pleading.
The Court GRANTS Defendants’ motion for screening (ECF No. 25). Plaintiff
challenges the KDOC’s policy regarding video visitation and its application of the override
and Sex Offender Treatment Program criteria. Plaintiff alleges that the KDOC’s policy is
arbitrary and unreasonable, not related to a government interest, and serves no purpose
other than to sever family ties and cause pain and suffering. Plaintiff also alleges that
similarly situated prisoners are being allowed video visitation. The Constitution “allows

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prison officials to impose reasonable restrictions upon visitation.”2 In assessing a visitation
restriction, the courts apply the standard set forth in Turner v. Safley:3 “a prison regulation
imping[ing] on inmates’ constitutional rights . . . is valid if it is reasonably related to
legitimate penological interests.”4 The Court finds that this case survives screening and
warrants a responsive pleading. Therefore, Defendants are GRANTED a short extension
of time to file a responsive pleading as noted above.
Most recently, Plaintiff filed two motions related to his apparent inability to receive
confirmation of court filings, claiming his Unit Team Manager (“UTM”), Mr. Ruiz, refused
to assist him with confirming his court filings. (Motion to Compel Speedy Delivery, ECF
No. 28.) In a related vein, Plaintiff also contends after complaining about his lack of receipt
of filings, he was retaliated against by Mr. Ruiz moving him from the Honor Dorm where
he has been housed for two years. (Motion to Inform the Courts, ECF No. 31.)
Plaintiff’s case is part of the Prisoner E-Filing program between this Court and the
Kansas Department of Corrections. If Plaintiff files a document with the Court
electronically through his UTM or librarian, these facility staff scan the document and file
it electronically, and Plaintiff should receive his original back from the facility after filing.
He is provided immediate confirmation of any filings in his case through an electronic
notification (“NEF”) to [e-mail].5 The notification should then be

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Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th Cir. 2004) (citation omitted).
482 U.S. 78, 89 (1987)
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Id.
5
See Civil Administrative Procedure for Filing, Signing, and Verifying Pleadings and Papers by Electronic
Means in the United States District Court for the District of Kansas, available at
http://ksd.circ10.dcn/index.php/rules/.
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distributed through institutional channels to Plaintiff. In addition to this electronic
notification, any document filed by Plaintiff in hard copy by U.S. mail is also mailed back
to him by the clerk’s office. If a document is filed by opposing counsel, they are also
required to send the actual document plus the NEF to Plaintiff by mail.
Given this procedure, Plaintiff’s motion (ECF No. 28) is GRANTED in part, in
that the Court takes notice of his grievance. His motion is DENIED as moot to the extent
the Clerk’s office has already been ordered above to provide Plaintiff a copy of the docket,
which will verify all filings in this matter.
However, because it is KDOC and not Plaintiff who is initially and directly
receiving electronic notifications of each filing, Defendants are strongly cautioned to
ensure Plaintiff’s timely receipt of his court filings as required. Likewise, defense
counsel is encouraged to communicate with their clients regarding the importance of
Plaintiff’s access to his court filings.
Furthermore, the issue of retaliation presented in Plaintiff’s May 30 filing (ECF No.
31) is not presently before this Court as a part of the pleadings. Additionally, Plaintiff
indicates in his motion he is “informing” the Court and “forgives” his UTM. To that extent,
the motion is DENIED without prejudice as the Court is unable to compel specific relief
at this time. That said, Defendants are again strongly cautioned to review these allegations
and address them accordingly to avoid future claims being added to this case.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to
Compel the KDOC to Provide Information (ECF No. 12) is DENIED without prejudice.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Inform the Court of
Default of Legal Suspense (ECF No. 17) is found to be MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Request Information
(ECF No. 18) is GRANTED to the extent the Court provides clarification in this Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Request Status/Decision
(ECF No. 19) is found to be MOOT in part and GRANTED in part. The Court directs the
Clerk to provide Plaintiff with a current copy of the docket in this case.
IT IS FURTHER ORDERED that Plaintiff’s Motion for the Court to Compel the
Kansas Department of Corrections to Provide Copies (ECF No. 20) is GRANTED in part
and DENIED in part without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Exhibit 24 to the
Martinez Report (ECF No. 21) is DENIED.
IT IS FURTHER ORDERED that Defendants’ motion for extension of time (ECF
No. 23) is GRANTED in part and DENIED in part. Defendants are granted an extension
of time until June 18, 2021, in which to answer or otherwise respond to Plaintiff’s
Complaint.
IT IS FURTHER ORDERED that Defendants’ Motion for Screening (ECF No.
25) is GRANTED as set forth herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Speedy Delivery
(ECF No. 28) is GRANTED in part and DENIED as moot in part as set forth above.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Inform the Courts (ECF
No. 31) is DENIED without prejudice as set forth herein.
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IT IS SO ORDERED.
Dated June 7th, 2021, in Wichita, Kansas.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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