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Sellers v. Cline

United States District Court, D. Kansas

August 19, 2014

JERRY D. SELLERS, JR., Plaintiff,
v.
SAM CLINE, Warden Hutchinson Correctional Facility, in his official capacity; RAY ROBERTS, Secretary of Corrections for the State of Kansas, in his official capacity; and JOHN DOES 1-4, Correctional Officers, Hutchinson Correctional Facility, in their official capacities, Defendants.

MEMORANDUM AND ORDER

MONTI L. BELOT, District Judge.

Plaintiff's motions: for default judgment (Doc. 24), for order compelling disclosure (Doc. 33), for leave to amend the complaint (Doc. 35), and for appointment of counsel (Doc. 41).
Defendants' motions: to dismiss defendants Cline and Roberts (Doc. 31), and to stay discovery (Doc. 37).

I. Facts.

Plaintiff's complaint alleges that he was incarcerated at Hutchinson Correctional Facility on November 4, 2011, when he was attacked by two other inmates. He contends a correctional officer enabled the attack by remotely opening plaintiff's cell door three times within a matter of minutes, which allowed other inmates to enter and exit the cell. The officer did this despite allegedly knowing that inmates were planning an attack on plaintiff on that day. Plaintiff, who is under a life sentence for sex offenses involving minors, had just been transferred to the Hutchinson facility two days before the attack.

The complaint asserts claims for violation of constitutional rights including the right to be free from cruel and unusual punishment, denial of due process and equal protection. The complaint alleges that correctional officers were inadequately trained, they were deliberately indifferent, they engaged in wanton and willful misconduct, and they failed to protect plaintiff from assault and unsafe conditions. Doc. 1 at 10.

The complaint alleges that two corrections officers responsible for operating the cell doors - identified in the complaint as John Does 1 and 2 - conspired to allow inmates to enter plaintiff's cell for the purpose of beating him. Doc. 1 at 14. It alleges that John Doe 1 had only been on the job for one month, was improperly trained, and did not have a trainer with him at the time of the incident. The complaint further alleges that two supervisory officers - identified as John Does 3 and 4 - knew of a planned attack on plaintiff but failed to prevent it, causing a violation of plaintiff's rights. Doc. 1 at 15.

Plaintiff alleges that defendant Cline had a responsibility to ensure the health and safety of inmates and to see that staff properly trained subordinates to carry out institutional rules. Doc. 1 at 7. He alleges that defendant Roberts should have but did not properly investigate his complaint after the incident. The complaint alleges that Cline and Roberts stated there was no evidence to support plaintiff's claims; "[t]hus, the warden and [Secretary of Corrections] are liable for the altercation at hand." Doc. 1 at 16.

On December 28, 2011, plaintiff was transferred to Ellsworth Correctional Facility, where he remains incarcerated.

II. Pending Motions.

1. Plaintiff's Motion for Default Judgment (Doc. 24).

Plaintiff's motion for entry of default against Cline and Roberts is denied. Requests for waiver of service of summons were sent to Cline and Roberts on March 4, 2014, and were promptly executed, meaning defendants had 60 days thereafter to file an answer or motion. Fed.R.Civ.P. 4(d)(3); Docs. 14-17. Prior to the 60-day deadline Cline and Roberts obtained an extension of ...


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