United States District Court, D. Kansas
MEMORANDUM AND ORDER FOR MARTINEZ REPORT
J. WAXSE U.S. Magistrate Judge.
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. Mr. McCoy alleges that his Eighth Amendment
rights were violated when members of the Special Operations
Response Team (“SORT”) used excessive force
against him during a shakedown of his cell at the Lansing
Correctional Facility (“LCF”) on January 21,
to Plaintiff, he was lying on his bed in his cell with the
light out. He heard his cell door open and saw figures
entering but could not tell who they were in the darkness.
When the light came on, the first thing he noticed was
“a hand with a[n] object in it coming at me.” He
got up off the bed and saw the hand with the object moving
toward him in an upward thrusting motion. It appeared to Mr.
McCoy that the person intended to stab him with the object.
He instinctively grabbed the object without making any
contact with the person holding it and threw the object out
of the immediate vicinity.
point, Plaintiff saw that Defendant Mosher had been holding
the object and that Defendants McCurrie and Acker were with
him. Once he was able to identify the people who entered his
cell, he submitted to their order to get on the ground and
put his hands behind his back. While Plaintiff was lying on
the ground, Defendant McCurrie “knee dropped”
onto Plaintiff's jaw, causing his forehead to strike the
cement floor of the cell. He felt legs wrap around his neck,
and he felt his arms being pushed up at an unnatural angle
causing him “extreme pain.” Plaintiff heard
Defendant McCurrie say, “Just break it” referring
to Plaintiff's arms or wrist and realized Defendant
McCurrie was the person applying the leg lock chokehold.
Plaintiff lost consciousness. When he regained consciousness,
he was standing with his arms handcuffed behind him with
Defendant McCurrie in front of him and Defendants Mosher and
Acker behind holding his arms.
McCoy was then taken to the LCF medical clinic for evaluation
and moved to restrictive housing. He alleges he suffered
injury to a previously injured shoulder, had a knot and
bruising on his forehead, and cuts and marks on his neck and
wrists. Plaintiff further alleges he was told that Defendants
McCurrie, Mosher and Acker “ran into [his] cell by
accident and was looking for ‘Jason McCoy' who was
in cell 450 A-2 cellhouse directly above cell 350 (the cell
[Plaintiff] lived in).” Doc. #1, p. 6.
Court finds that the proper processing of Plaintiff's
claims cannot be achieved without additional information from
appropriate officials of the Lansing Correctional Facility.
See Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978). Accordingly, the Court orders the appropriate
officials of LCF to prepare and file a Martinez
report. Once the report and Defendants' answers have been
received, the Court can properly screen Plaintiff's
claims under 28 U.S.C. § 1915.
Court notes that the Kansas Department of Corrections is not
a proper party as it is a state agency entitled to Eleventh
Amendment immunity and is not a “person” subject
to suit under § 1983. See Blackburn v. Dep't of
Corr., 172 F.3d 62, *1 (Table) (10th Cir.
1999) (unpublished); citing Buchwald v. University of New
Mexico School of Medicine, 159 F.3d 487, 494 n. 3
(10th Cir. 1998); and Will v. Michigan
Dep't of State Police, 491 U.S. 58, 70-71 (1989).
However, it is an interested party for the purpose of
preparing the Martinez report ordered herein. Upon
the filing of that report, the Department of Corrections may
move for dismissal from this action.
IS THEREFORE ORDERED:
Clerk of the Court shall issue summons and a copy of the
Complaint, along with this Order, to be served on the Kansas
Department of Corrections, pursuant to Rule 4(j) of the
Federal Rules of Civil Procedure, and shall prepare waiver of
service forms for the remaining defendants, pursuant to Rule
4(d) of the Federal Rules of Civil Procedure, all to be
served at no cost to Plaintiff absent a finding by the Court
that Plaintiff is able to pay such costs.
report required herein shall be filed no later than sixty
(60) days from the date of this order, and Defendants'
answers shall be filed within twenty (20) days following
receipt of that report by counsel for Defendants or as set
forth in the waiver of service, whichever is later.
Officials responsible for the operation of the Lansing
Correctional Facility 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
c. To determine whether other like complaints, whether
pending in this Court or elsewhere, are related to this