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Sellers v. Cline

United States District Court, D. Kansas

March 19, 2015

JERRY D. SELLERS, JR., Plaintiff,


MONTI L. BELOT, District Judge.

Before the court are the following:

Defendants' Motion to Dismiss (Docs. 58, 59); Plaintiff's Response (Doc. 63); and Defendants' Reply (Doc. 69).

I. Facts and Case History.

Plaintiff is an inmate at Ellsworth Correctional Facility who is serving a life sentence for sex offenses against minors. He was previously incarcerated at Hutchinson Correctional Facility (HCF), where on November 4, 2011, he was attacked in his cell by two other inmates. Plaintiff contends a correctional officer at HCF who was remotely operating cell doors in plaintiff's unit negligently or intentionally enabled the attack by opening and closing plaintiff's cell door three times in succession, which allowed the two attackers to enter, assault plaintiff, and then exit his cell.

On April 18, 2013, plaintiff filed a pro se complaint (Doc. 1) asserting claims under 42 U.S.C. § 1983 against defendants Cline, Roberts and "John Does 1 through 4." The complaint identified the John Doe defendants, respectively, as: #1) a Correctional Officer with the rank of "CO" [correctional officer] assigned to C-Cellhouse at HCF; #2) a Correctional Officer with the rank of Corporal assigned to C-Cellhouse; #3) a Correctional Officer with the rank of "Sergeant (Living Unit)" assigned to C-Cellhouse; and #4) a Correctional Officer with the rank of Captain assigned to C-Cellhouse. Doc. 1 at 2. Allegations within the 23-page complaint indicated that at the time of the incident, John Doe #1 was remotely operating cell doors from a control room at the end of a row of cells where plaintiff was housed. Among other things, plaintiff alleged that the four John Doe correctional officers were deliberately indifferent to his safety and that they enabled the inmate attack on November 4, 2011.

Plaintiff filed a motion to proceed in forma pauperis (IFP) together with his complaint on April 18, 2013. (Doc. 2). He also filed a motion for appointment of counsel and a motion for preliminary injunction with affidavits in support. Docs. 4-8. The latter motion requested injunctive relief pertaining to treatment of sex offenders in Kansas Department of Corrections' (KDOC) custody.

On January 22, 2014, Judge Crow denied plaintiff's motions for preliminary injunction and for appointment of counsel. Doc. 10. With regard to plaintiff's IFP motion, the court directed plaintiff to make an initial filing fee of $4.00 by February 21, 2014. On February 25, 2014, after plaintiff complied with the order to pay a partial filing fee, Judge Crow granted the motion to proceed IFP. Doc. 12. His order directed the clerk to prepare waiver of service forms "for the defendants" pursuant to Rule 4(d), with service to be made by the U.S. Marshal at no cost to plaintiff. The order also directed the KDOC to investigate and prepare a "Martinez report" (see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978)) with a summary of the HCF incident. The order provided that discovery by plaintiff would not commence until plaintiff received the Martinez report or an answer to the complaint, and that the action was exempted from the disclosure provisions of Fed.R.Civ.P. 26(a) & (f). Doc. 12 at 3. See also Fed.R.Civ.P. 26(a)(1)(B) (pro se actions by inmates exempted from initial disclosure requirements of Rule 26).

The clerk issued waivers of service for defendants Roberts and Cline; the waivers were executed and filed by March 13, 2014. Docs. 14, 15. No waivers or summonses were issued as to the John Doe defendants. Plaintiff does not claim that the description of the John Doe defendants in the initial complaint was sufficient to permit the service of summonses on these defendants.

On April 29, 2014, the KDOC filed a Martinez report. Doc. 26. Among other things it indicated the four John Doe correctional officers described in the complaint were: 1) Charles Mitchell; 2) Jacob Fears; 3) Isaac Baker; and 4) Stephen Jones. These individuals had been interviewed by KDOC and gave statements in connection with the Martinez report investigation.

On June 2, 2014, after Roberts and Cline moved to dismiss the claims against them, plaintiff moved to amend the complaint to name the four John Doe correctional officers. Doc. 35. The court granted the motion to dismiss as to Roberts and Cline but granted plaintiff's motion for leave to amend. The court additionally granted plaintiff's motion for appointment of counsel, Doc. 46, and gave plaintiff until October 15, 2014 to file an amended complaint. Doc. 52. Plaintiff's appointed counsel filed the amended complaint on October 15, 2014, naming the four John Doe correctional officers. Doc. 53. The correctional officers were served with the amended complaint a week later.[1] Docs. 54-57.

II. Motion to dismiss.

Defendants Fears, Mitchell, Jones and Baker move to dismiss the amended complaint under Rule 12(b)(6), arguing: 1) the claims against them are barred by the statute of limitations; and 2) the allegations fail to state a plausible claim. Doc. 58.

1. Statute of limitations. In actions under 42 U.S.C. § 1983, federal courts apply the statue of limitations for personal injuries in the state where the claim arose, as long as that law is not inconsistent with federal law. Hardin v. Straub, 490 U.S. 536, 538 (1989); Wilson v. Garcia, 471 U.S. 261, 176 (1985). In Kansas the limitation period for personal injuries is two years. See K.S.A. § 60-513(a)(4). The incident at HCF occurred on November 4, 2011, ...

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