United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
matter is a civil rights action filed under 42 U.S.C. §
1983. Plaintiff's claims arose during his incarceration
in the Harvey County Jail (HCJ) from March 9, 2017, to May
16, 2017. Plaintiff is now a prisoner in the custody of the
Kansas Department of Corrections (KDOC). He proceeds pro se
and in forma pauperis.
Court enters this order to address two motions filed by the
plaintiff and to enter an order to show cause.
motions for copies and for production of video
direction of the Court, counsel for the HCJ has filed a
report pursuant to Martinez v. Aaron, 317 F.2d 570
(10th Cir. 1978)(Doc. 29). Two exhibits to the
report were filed under seal due to sensitive information in
filed a motion for copies of those exhibits (Doc. 32), and
counsel submitted a certificate of additional service (Doc.
33) showing that the report and all exhibits were mailed to
plaintiff at three different addresses. The Court therefore
will deny the motion as moot.
also filed a motion for production of video taken upon his
transfer from the HCJ to the KDOC in which he sought, but was
denied, permission to take his legal paperwork (Doc. 34).
Counsel for the HCJ filed a reply (Doc. 35) stating that no
such video exists and noting that if such footage ever
existed, it would have been overwritten in the ordinary
course absent the occurrence of any incident that warranted
it appears there is no material responsive to the request,
the Court will deny the motion.
to Show Cause
Martinez report developed as a means “to
ascertain whether there is a factual as well as a legal basis
for [a] prisoner's claims.” Gee v. Estes,
829 F.2d 1005, 1007 (10th Cir. 1987). The report
“is treated like an affidavit, and the court is not
authorized to accept the factual findings of the prison
investigation when the plaintiff has presented conflicting
evidence.” Hall v. Bellmon, 935 F.2d 1106,
1111 (10th Cir. 1991)(citing Sampley v.
Ruettgers, 704 F.2d 491, 493 n. 3 (10th Cir.
Court has examined the commendably thorough Martinez
report and plaintiff's responses and, for the reasons
that follow, is considering the dismissal of this action.
Plaintiff will be directed to show cause why that dismissal
should not be entered.
of administrative remedies
Prison Litigation Reform Act (PLRA), requires a prisoner
“to exhaust prison grievance procedures before filing
suit.” Jones v. Bock, 549 U.S. 199, 202
(2007)(citing 42 U.S.C. § 1997e(a)). The exhaustion of
available remedies is mandatory. Woodford v. Ngo,
548 U.S. 81, 84 (2006)(“Exhaustion is no longer left to
the discretion of the district court, but is
Martinez report states that the HCJ has a written
grievance process that requires prisoners there to submit
grievances on paper or through the jail kiosk. According to
the report, plaintiff did not submit a grievance on his
complaints concerning dental care, blood sugar testing, his
property, or religious texts. He submitted a single request
complaining of ...