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Washburn v. Harvey County Jail

United States District Court, D. Kansas

March 29, 2019

ALLEN DEAN WASHBURN, Plaintiff,
v.
HARVEY COUNTY JAIL, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge.

         This 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.

         The Court enters this order to address two motions filed by the plaintiff and to enter an order to show cause.

         Plaintiff's motions for copies and for production of video

         At the 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 their contents.

         Plaintiff 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.

         Plaintiff 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 its preservation.

         Because it appears there is no material responsive to the request, the Court will deny the motion.

         Order to Show Cause

         The 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. 1983)).

         The 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.

         Exhaustion of administrative remedies

         The 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 mandatory.”).

         The 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 ...


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