Opinion
20-3200-JWL-JPO
10-05-2022
DURAYL TYREE VANN, Plaintiff, v. JEFFREY FEWELL, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although at the time of filing Plaintiff was incarcerated at the Winfield Correctional Facility in Winfield, Kansas, the events giving rise to his Complaint occurred during his detention at the Wyandotte County Jail (“WCJ'). The Court granted Plaintiff leave to proceed in forma pauperis.
On August 10, 2021, the Court entered a Memorandum and Order (Doc. 16) dismissing Counts I, III, IV, VII, XI, and XIII of Plaintiff's Amended Complaint, and ordering the officials responsible for the operation of the WCJ to prepare a Martinez Report regarding Counts II, VI, VIII, IX, XII, XIV, XVI, and the claim in Count X regarding incidents occurring in 2019. The Memorandum and Order provided that once the report has been received, the Court can properly screen Plaintiff's claims under 28 U.S.C. § 1915.
On September 3, 2021, the Court entered a Memorandum and Order dismissing Counts V and XV of the Amended Complaint. (Doc. 19).
The Martinez Report (Doc. 34) was filed on January 14, 2022. The Court screened Plaintiff's Amended Complaint in light of the Report, and ordered Plaintiff to respond and show good cause why his claims should not be dismissed. (Doc. 36.) Plaintiff filed a Response (Doc. 44) to the Martinez Report.
Plaintiff disputes the allegations in the Martinez Report. Plaintiff maintains his version of the events and his allegations set forth in his Amended Complaint. The 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.” 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)). Therefore, Counts II, VI, VIII, IX, XII, XIV, XVI, and the claim in Count X regarding incidents occurring in 2019, in Plaintiff's Amended Complaint, survive screening and the Court will order the remaining Defendants to answer or otherwise respond to these remaining claims.
IT IS THEREFORE ORDERED BY THE COURT that the Clerk is directed to prepare summons pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure to be served upon Defendants Jeffrey Fewell, (fnu) Reid, (fnu) Mesner, (fnu) Lobner, (fnu) Schuler, J. Patrick, John Doe, Sarah Toms, Larry Roland and Donald Ash, by the U.S. Marshal at no cost to Plaintiff.
IT IS SO ORDERED.