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McCoy v. Kansas Department of Corrections

United States District Court, D. Kansas

April 10, 2018

DERON MCCOY, JR., Plaintiff,
v.
KANSAS DEPARTMENT OF CORRECTIONS, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. Senior District Judge

         This 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.

         I. Complaint

         Plaintiff 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.

         According 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.[1] Id.

         At that 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. Id.

         Mr. 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.

         Count I 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.

         Count 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.

         II. Motion to Dismiss

         Defendants 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 requirement.

         Defendants 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.

         III. Standard

         Federal 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 ...


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