United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
matter is before the Court on Defendants' motion to
dismiss (Doc. 26). Plaintiff filed a timely response (Doc.
29). For the reasons described herein, Defendants' motion
to dismiss is granted.
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, 2016.
to Plaintiff, he was lying on his bed in his cell resting
with the lights out. Doc. 1 at 2. Defendant Acker walked past
his cell, roused Plaintiff, and asked him to move the curtain
over the front of his cell down so his cell was more visible
to guards. Doc. 1 at 2. Mr. McCoy got up and moved the
curtain. Doc. 1 at 2, 4. Approximately five minutes later, he
heard his cell door open and saw figures entering but could
not tell who they were in the darkness. Doc. 1 at 4. When the
light came on, the first thing he noticed was “a hand
with a[n] object in it coming at me.” Doc. 1 at 4. 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. Id.
point, Plaintiff saw that Defendant Mosher had been holding
the object and that Defendants McCurrie and Acker were with
him. Id. Mr. McCoy provides two different accounts
of what happened next. In the complaint, he asserts that 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. Id. at 5. In his grievance
submitted to the Secretary of Corrections attached as an
exhibit to the complaint, Mr. McCoy states that as he grabbed
the object and threw it away, Defendants McCurrie, Acker, and
Mosher grabbed him and attempted to throw him to the ground.
Doc. 1-1 at 7. He claims he “passively submitted to
their attempts.” Id. While Plaintiff was lying
face down on the ground, he felt a blow to jaw and his
forehead struck 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.”
Doc. 1 at 5. 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. Id. Plaintiff
“briefly lost consciousness.” Doc. 1-1 at 7. 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. Doc. 1 at 5-6. He states
medical staff directed him to take Ibuprofen and Tylenol
which had already been issued to him. Doc. 29-1 at 4. He
alleges he suffered injury to a previously injured shoulder
(Doc. 1 at 8), had a knot and bruising on his forehead, and
cuts and marks on his neck and wrists. Id. at 6.
alleges that three of the defendants violated Plaintiff's
Eighth Amendment right to be free from cruel and unusual
punishment by using excessive force against him. It asserts
Defendants Mosher, Acker, and McCurrie acted
“intentionally, willfully and maliciously” during
the January 21, 2016, incident.
II alleges Defendants KDOC, Lucht, and Gift
“intentionally, willfully and maliciously”
violated Plaintiff's due process rights under the
Fourteenth Amendment by “developing a culture or a
custom of allowing and directing SORT members to assault and
batter inmates” and by failing to “train,
supervise, and discipline officers.” Count III brings a
state law assault and battery claim against Defendants Acker,
Mosher, and McCurrie.
Motion to Dismiss
argue that Mr. McCoy's complaint must be dismissed
because he did not exhaust his administrative remedies as
required by the Prison Litigation Reform Act prior to
bringing suit under § 1983. Defendants assert Plaintiff
did not follow the grievance procedure mandated by state
regulation and thus did not meet the PLRA's exhaustion
also argue they are entitled to official immunity under the
Eleventh Amendment, as well as qualified immunity because
Plaintiff failed to show his constitutional rights were
violated. Finally, Defendants assert Count III of
Plaintiff's complaint is subject to dismissal because it
was filed outside the statute of limitations and because of
futility and pendent jurisdiction.
Rule of Civil Procedure 12(b)(6) allows dismissal of a
complaint where the facts alleged fail to state a claim to
relief “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. All
well-pleaded factual allegations in the complaint are
accepted as true and viewed in the light most favorable to
the plaintiff for purposes of determining whether the
complaint states a plausible claim for relief. Id.;
Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009). The ...