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, or in the Alternative, Motion for Summary Judgment
(Doc. 22), filed by Defendants Dan Schnurr, Doug Burris,
Patti Keen, and Brooke Combs. The motion is ripe for decision
as Plaintiff has failed to file a timely response.
Defendants' motion is granted for the reasons stated
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983, alleging constitutional violations
based on the censorship of an issue of the San Francisco Bay
View newspaper and Socialist Viewpoint newspaper. Plaintiff
is incarcerated at the Hutchinson Correctional Facility in
Hutchinson, Kansas (“HCF”). The Court granted
Plaintiff leave to proceed in forma pauperis. (Doc.
1, 2019, the Court entered a Memorandum and Order (Doc. 6)
finding that the proper processing of Plaintiff's claims
could not be achieved without additional information from
appropriate officials of HCF. See Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978); see also Hall v.
Bellmon, 935 F.2d 1106 (10th Cir. 1991). Accordingly,
the Court ordered the appropriate officials of HCF to prepare
and file a Martinez Report. The Martinez
Report was filed on September 9, 2019. (Docs. 17, 18.)
November 8, 2019, Defendants filed a Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment (Docs. 22, 23).
Because Defendants rely on their Martinez Report,
the Court will consider the motion as a motion for summary
judgment. See Dease v. Webb, F. App'x, 2019 WL
5801704, at *1 (10th Cir. Nov. 7, 2019) (unpublished opinion)
(noting that court converted motion to dismiss to motion for
summary judgment where motion relied on materials outside of
the second amended complaint, and granted the motion based on
failure to exhaust) (citing Fed.R.Civ.P. 12(d));
McDiffett v. Nance, No. 17-3037-JAR-JPO, 2019 WL
4736951, at *3 (D. Kan. Sept. 27, 2019) (because the court
considered materials outside of the pleadings-namely the
Martinez Report-defendants' motion to dismiss or
alternatively for summary judgment was evaluated using the
standards for summary judgment); Evans v. Cawthorn,
No. 16-3095-DDC-ADM, 2019 WL 5787952, at n.6 (D. Kan. Nov. 6,
2019) (“On summary judgment, a Martinez 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” . . . [b]ut ‘absent valid
challenge,' the Martinez Report ‘may be
treated as providing uncontroverted facts.'”)
(internal citations omitted).
required by Local Rule 56.1(f), Defendants provided
Plaintiff, who is proceeding pro se, with the
required notice regarding motions for summary judgment. (Doc.
24.) The notice was mailed to Plaintiff's address of
record. Id. at 2. Plaintiff's response deadline
was November 29, 2019. See D. Kan. Rule 6.1(d)(2)
(“Responses to . . . motions for summary judgment . . .
must be filed and served within 21 days.”). To date,
Plaintiff has not filed a response to the motion for summary
judgment. Therefore, because Plaintiff has failed to timely
file a response, Defendants' statement of facts set forth
in the Memorandum in Support (Doc. 23) are deemed admitted to
the extent such facts are supported by the record. Under
Fed.R.Civ.P. 56(e), if a party fails to properly address the
moving party's factual assertions, the court may
“grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).
Plaintiff Charley Hughes has been in KDOC custody since 2010
and located at Hutchinson Correctional Facility (HCF) since
March 2017. (Doc. 17-1, at 1-2.)
Defendant Dan Schnurr has been Warden at HCF since June 2016.
(Doc. 17-4, at ¶ 1.)
Defendant Patti Keen, at all times relevant to Hughes'
claims, supervised the HCF mailroom and was responsible for
reviewing publications received by inmates and seizing those
that the Publication Review Officer directed to be withheld.
(Doc. 17-7, at ¶¶ 1-2.)
Defendant Brooke Combs, at all times relevant to the
complaint, was employed at Lansing Correctional Facility as
the KDOC Publication Review Officer. (Doc. 17-9, at
Defendant Doug Burris, at all times relevant to the
complaint, served as the Secretary of Corrections'
designee for reviewing inmates' appeals of publication
withholding decisions and for approval or denial of property
claims. (Doc. 17-5, at ¶¶ 1, 8.)
Policy for Withholding Publications
Internal Management Policy and Procedure 12-134A guides
HCF's review of publications mailed to inmates. (Doc.
17-11; Doc. 17-9, at ¶ 5; Doc. 17-5, at ¶ 1.)
publication is individually reviewed under the criteria in
KAR 44-12-601. (Doc. 17-11, at 1; Doc. 17-5, at ¶ 1.)
Under KAR 44-12-601(d)(1) and (g), publications may be
withheld when there is a reasonable belief that it
constitutes “a threat to institutional safety, order,
or security.” (Doc. 17- 9, at ¶ 4.)
mailroom staff at HCF think a publication might be subject to
being withheld, they refer it to the Publication Review
Officer at LCF with examples in support. (Doc. 17-11, at 1-2;
Doc. 17-4, at ¶ 4.)
Publication Review Officer reviews the publication and
determines whether it should be withheld. (Doc. 17-11, at 2;
Doc. 17-9, at ¶¶ 2-3; Doc. 17-4, at ¶ 5.)
a publication is withheld, a Notification of Publication
Seizure/Censorship identifying the publication seized and the
reason why it was withheld is completed and provided to all
inmates who are affected. (Doc. 17-11, at 2, 6; Doc. 17-9, at
¶ 6; Doc. 17-5, at ¶ 7; Doc. 17- 7, at ¶ 5.)
notification provided to inmates explains: “If you wish
to appeal this decision, you must do so within 15 business
days of the date of this notice by sending the appeal and
publication to KDOC Secretary, Publication Appeals . . .
.” (Doc. 17-11, at 6; Doc. 17-9, at ¶ 9.)
inmate can appeal by completing the form on the notification
and having the facility mailroom send the publication to the
central office in Topeka for review. (Doc. 17-11, at 3; Doc.