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Hughes v. Schnurr

United States District Court, D. Kansas

December 13, 2019

CHARLEY HUGHES, Plaintiff,
v.
DAN SCHNURR, 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, 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 herein.

         I. Procedural History

         Plaintiff 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. 5.)

         On May 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.)

         On 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 See Dease v. Webb, F. App'x, 2019 WL 5801704, at *1 (10th Cir. Nov. 7, 2019) (unpublished opinion) (noting that court converted motion to dismiss to motion for summary judgment where motion relied on materials outside of the second amended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).

         As 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).

         II. Uncontroverted Facts

         1. 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.)

         2. Defendant Dan Schnurr has been Warden at HCF since June 2016. (Doc. 17-4, at ¶ 1.)

         3. 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.)

         4. 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 ¶¶ 1-2.)

         5. 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.)

         KDOC Policy for Withholding Publications

         6. KDOC 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.)

         7. Each publication is individually reviewed under the criteria in KAR 44-12-601. (Doc. 17-11, at 1; Doc. 17-5, at ¶ 1.)

         8. 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.)

         9. When 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.)

         10. The 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.)

         11. If 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.)

         12. The 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.)

         13. The 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. 17-9, ...


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