United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE.
matter is before the court on a civil rights complaint filed
pursuant to 42 U.S.C. §1983 by a prisoner confined at
the Hutchinson Correctional Facility in Hutchinson, Kansas.
Plaintiff proceeds pro se and in forma pauperis in this
matter. As defendants, plaintiff names the Kansas
Department of Corrections; Corizon Health; several employees
of Hutchinson Correctional Facility: (fnu) Schnurr, (fnu)
Swenson, (fnu) Vanhoose, (fnu) Nicholes, J. Bell, and (fnu)
Carpenter; and Corizon employee (fnu) Keolavone. Plaintiff
alleges Eighth Amendment claims of deliberate indifference
and cruel and unusual punishment. Specifically, he alleges
that on April 20, 2017, he was physically assaulted by
another prisoner at the direction of defendants Nicholes,
Bell, and VanHoose in retaliation for refusing to sign off on
two grievances. He alleges that on or about June 6, 2017, he
was again physically assaulted by another prisoner at the
direction of defendants Carpenter, Nicholas, Bell, and
Vanhoose in retaliation for filing grievances. Plaintiff
further alleges that on June 11, 2017, defendant Swanson
sexually assaulted plaintiff by grabbed plaintiff's
testicles while threatening plaintiff with pepper spray.
Plaintiff also alleges violations of the First Amendment by
defendant Keolavone, who he claims interfered with his
attempts to pursue administrative remedies by failing to
forward his written grievance about the April assault to
prison officials. Finally, plaintiff conclusorily alleges
that defendant Corizon Health provided him with inadequate
medical treatment. He seeks an immediate transfer to another
facility; $150, 000 in compensatory damages; and $150, 000 in
November 17, 2017, the court entered an order directing
plaintiff to show cause by December 17, 2017, why
plaintiff's claim against Corizon Health should not be
dismissed for failure to state a claim upon which relief can
be granted. The deadline for plaintiff to show cause has
expired, and he has submitted no response to the court's
order. The court therefore finds that the claim against
Corizon Health should be dismissed for failure to state a
claim upon which relief can be granted. The court further
finds that the Kansas Department of Corrections should be
dismissed because prison and jail facilities are not
“persons” subject to suit for money damages under
§ 1983. See Will v. Mich. Dept. of State
Police, 491 U.S. 58, 66, 71 (1989) (neither state nor
state agency is a “person” which can be sued
under Section 1983).
court finds that proper processing of plaintiff's
remaining claims cannot be achieved without additional
information from appropriate officials of the Hutchinson
Correctional Facility. See Martinez v. Aaron, 570
F.2d 317 (10th Cir. 1978). See also Hall v.
Bellmon, 935 F.2d 1106 (10th Cir. 1991).
IS THEREFORE ORDERED BY THE COURT:
Corizon Health and the Kansas Department of Corrections are
hereby dismissed from this matter.
clerk of the court shall prepare waiver of service forms for
the remaining defendants pursuant to Rule 4(d) of the Federal
Rules of Civil Procedure, to be served at no cost to
plaintiff absent a finding by the court that plaintiff is
able to pay such costs. Answers or responses to the
complaint, including the report required herein, shall be
filed no later than February 17, 2017.
Officials responsible for the operation of the Hutchinson
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
complaint and should be considered together.
Upon completion of the review, a written report shall be
compiled which shall be attached to and filed with the
defendants' answer or response to the complaint.
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
Authorization is granted to the officials of the Hutchinson
Correctional Facility to interview all witnesses having
knowledge of the facts, including the plaintiff.
answer or motion addressed to the complaint shall be filed
until the Martinez report ...