Thomas v. Ash et al
Filing
5
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Within thirty (30) days of receipt of this order, Plaintiff shall show cause to the Honorable Sam A. Crow why Defendants Ash, Fewell, Dupree, Onions, Sutherland, Collins, Patrick, Russell, Carver, Simmons, and Anderson-Simpson should not be dismissed from this matter. Signed by Magistrate Judge David J. Waxse on 07/06/17. Mailed to pro se party Kennon Deandre Thomas by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNON D. THOMAS,
Plaintiff,
v.
CASE NO. 17-3065-SAC-DJW
DONALD ASH, et al.,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff, a pre-trial detainee appearing pro se and in
forma pauperis, filed this civil rights complaint pursuant to 42
U.S.C.
§
Eighth
1983.
Mr.
Amendment
excessive
force
Thomas
rights
against
alleges
were
him
that
violated
at
the
his
when
Wyandotte
Fourteenth
and
deputies
used
County
Adult
Detention Center (“WCADC”) on December 9, 2016.
Statutory Screening of Prisoner and In Forma Pauperis Complaints
The
Court
is
required
to
screen
complaints
brought
by
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.
28 U.S.C. § 1915A(a).
Additionally,
with any litigant, such as Plaintiff, who is proceeding in forma
1
pauperis,
the
Court
has
a
duty
determine
its
sufficiency.
28
to
screen
U.S.C.
§
the
complaint
1915(e)(2).
to
Upon
completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.
28 U.S.C. § 1915A(b); 28 U.S.C.
§ 1915(e)(2)(B).
To survive this review, the plaintiff must plead enough
facts “to raise a right to relief above the speculative level”
and “to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
In
applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.
See
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir.
2011).
While
a
pro
se
plaintiff’s
complaint
must
be
liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
pro se status does not relieve the plaintiff of “the burden of
alleging
sufficient
could be based.”
facts
on
which
a
recognized
legal
claim
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
Complaint
At
the
time
of
the
events
Plaintiff
recounts
in
his
complaint, he was recovering from surgery to repair a gunshot
2
wound
to
his
jumpsuit,
them
at
right
given
a
to
glance
jumpsuits.
leg.
He
medically
from
the
wore
a
disabled
healthy
medical-issued
inmates
inmates
to
who
orange
distinguish
wore
striped
Mr. Thomas, who is 6’4”, walked with a noticeable
limp.
According to Plaintiff, Deputy Sheriff Christina Hopkins
told Plaintiff she was going to lodge a staff ticket violation
against him for “passing commissary.”
As he was let out of his
cell for med-pass, he told Defendant Hopkins he wanted to speak
with a sergeant.
Apparently, a verbal altercation ensued, and
Defendant Hopkins claims Plaintiff used derogatory and abusive
language.
She told him to go to lockdown, and he persisted in
asking that she call a sergeant.
Mr. Thomas was escorted to
administrative segregation by Deputies Tyler Ricke, Devin Baird,
Sergio Loeza, John Lobner, Sergeant Keona Ballard, and Acting
Sergeant
Danica
Baird.
Plaintiff
repeatedly
questioned
actions they were taking but was otherwise compliant.
the
When they
arrived at the cell, as the officers uncuffed Plaintiff, he
turned
toward
them
to
continue
questioning.
Some
of
the
officers then jumped on him, choking him and slamming him down
on the metal bunk.
against
the
bunk,
Defendant Lobner “bashed” Plaintiff’s face
applied
his
body
weight
to
the
back
of
Plaintiff’s head and neck, pressing him against the bunk and
choking him.
Defendant Ricke, when Plaintiff was already pinned
3
to the bunk, squeezed and poked his gunshot wound, causing him
“tremendous” pain.
Defendant Loeza participated by helping to
secure
legs.
Plaintiff’s
Thomas twice.
Defendant
Ricke
then
tasered
Mr.
The incident was recorded by body camera.
Defendant Danica Baird was one of two sergeants on the
scene.
She witnessed the incident, failed to intervene, and in
fact authorized Defendant Ricke to taser Plaintiff when he was
already
subdued.
Defendant
Ballard
was
the
highest
ranking
officer present and also failed to intervene.
Mr. Thomas suffered a busted lip, bruised and swollen chin
and
cheek,
loosened
and
painful
surgically-repaired gunshot wound.
assaulting
a
law
enforcement
tooth,
and
injury
to
the
He has been charged with
officer
as
a
result
of
the
incident.
In addition to the defendants mentioned above, Plaintiff
names as defendants Donald Ash, the Sheriff of Wyandotte County
(failure
to
respond
to
Plaintiff’s
grievance;
failure
to
reprimand; retaliation by allowing charges to be brought against
Plaintiff); Jeffrey Fewell, Deputy Sheriff and Warden of the
jail (failure to respond to grievance; failure to reprimand;
retaliation);
photograph
incident);
respond
to
Andrew
Collins,
Plaintiff’s
Major
injuries;
Patrick
grievance);
Deputy
(failure
Major
failure
to
Russell
4
Sheriff
(failure
to
report
reprimand;
(failure
to
failure
to
the
to
reprimand;
failure to respond to grievance); Andrew Carver, Deputy Sheriff
(failure
failure
to
to
report
the
accurately
officers
document
Simmons Jr., Detective,
involved
the
in
the
incident);
incident;
Michael
DeMile
Wyandotte County Sheriff’s Department
(failure to accurately document the incident); Sherry AndersonSimpson,
Detective,
Wyandotte
County
Sheriff’s
Department
(failure to accurately document the incident); Mark Dupree Sr.,
Wyandotte
County
Assistant
DA;
District
and
John
Attorney
(“DA”);
Sutherland,
Danielle
Assistant
DA
Onions,
(maliciously
pursuing frivolous charge against Plaintiff as a result of the
incident).
Plaintiff’s request for relief includes monetary damages
and dismissal of the criminal charges against him.
Analysis
After reviewing Plaintiff’s complaint with the standards
set out above in mind, the Court finds that certain defendants
are
subject
to
dismissal
from
this
action
because
they
are
immune from relief or because Plaintiff fails to state a claim
on which relief may be granted against them.
1. Plaintiff seeks monetary damages from defendants who are
immune from such relief (28 U.S.C. § 1915A(b)(2))
Plaintiff names Mark Dupree Sr., the Wyandotte County DA,
and two Assistant DAs as defendants.
absolute
immunity.
A
prosecutor
5
All three are entitled to
is
absolutely
immune
from
liability for the decision to prosecute.
Hartman v. Moore, 547
U.S. 250, 262 (2006), citing Imbler v. Pachtman, 424 U.S. 409,
431 (1976).
those
“A prosecutor is entitled to absolute immunity for
actions
initiating
that
and
cast
him
presenting
in
the
the
role
government's
Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007).
of
an
case.”
advocate
Mink
v.
While Plaintiff
alleges the DA acted maliciously, he cites no support for this
allegation.
In any event, even allegations of malice do not
defeat prosecutorial immunity.
Glaser v. City and County of
Denver, 557 F. App’x 689, 705 (10th Cir. 2014).
Defendants
Dupree, Onions, and Sutherland are subject to dismissal from
this
action
under
28
U.S.C.
§§
1915A(b)(2)
and
1915(e)(2)(B)(iii).
2. Plaintiff fails to state a claim upon which relief may be
granted
against
several
defendants
(28
U.S.C.
§
1915A(b)(1))
To be properly named as a defendant in a § 1983 action, a
person must personally participate in the alleged violation of
the plaintiff’s constitutional rights.
F.3d 1416, 1423 (10th Cir. 1997).
not create § 1983 liability.
1234, 1239 (10th Cir. 2008).
has
explained
“that,
to
Foote v. Spiegel, 118
Supervisory status alone does
Duffield v. Jackson, 545 F.3d
The Tenth Circuit Court of Appeals
state
a
claim
in
federal
court,
a
complaint must explain what each defendant did to [the pro se
plaintiff];
when
the
defendant
6
did
it;
how
the
defendant's
action harmed [the plaintiff]; and, what specific legal right
the plaintiff believes the defendant violated.”
Nasious v. Two
Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff does a fairly good job of describing the actions
of the primary defendants who participated in or witnessed the
incident.
However, Plaintiff includes several defendants in his
complaint who appear to be improper.
Plaintiff
defendants,
Plaintiff
deputies
names
alleging
filed
Sheriff
they
about
involved,
and
the
Ash
failed
to
incident,
“allowed”
and
Warden
respond
failed
the
to
to
Fewell
a
grievance
reprimand
retaliatory
as
filing
the
of
“frivolous” charges against him “to impede [Plaintiff’s] actions
in seeking civil litigation.”
Doc. #1, p. 1.
Plaintiff does
not allege these defendants were personally involved in the use
of force against him.
Failure to respond to a grievance is not a constitutional
violation.
No
“independent
constitutional
administrative grievance procedures” exists.
443 F. App'x 331, 332 (10th Cir. 2011).
right
to
state
Boyd v. Werholtz,
See also Murray v.
Albany County Bd. of County Commrs., 2000 WL 472842 at *2 (10th
Cir. April 20, 2000) (unpublished) (allegations that defendant
failed to answer prison grievances “failed to state a claim as a
matter of law because prison grievance procedures do not give
7
rise to a protected liberty interest requiring the procedural
protections envisioned by the fourteenth amendment”) (internal
quotations and citation omitted); Serrano v. Ackley, 2013 WL
4482980 at *4–5 (D. Kan. Aug. 19, 2013) (unpublished) (summarily
dismissing
prisoner's
alleged
failure
respond
to
forms
to
his
for
§
1983
follow
grievance
grievances,
failure
to
claims
and
state
regarding
procedures,
failure
a
defendants'
to
violation
failure
provide
of
his
to
grievance
Fourteenth
Amendment due process or equal protection rights).
Therefore,
the failure of Defendant Ash or Fewell to respond to Plaintiff’s
administrative
grievance
does
not
constitute
a
violation
of
Plaintiff's constitutional rights.
Neither does a failure to reprimand state a claim for a
violation
of
constitutional
rights.
A
failure
to
reprimand
relates entirely to actions that the defendants allegedly should
have taken in response to the events at issue here.
Defendants
Ash and Fewell “cannot have ‘personally participated’ in the
acts giving rise to the injury to the Plaintiff if the actions
alleged
did
not
occur
until
after
the
Plaintiff's
injury.”
Muniz v. Kaspar, 2009 WL 2490144, at *8 (D. Colo. Aug. 14,
2009); citing Poolaw v. Marcantel, 565 F.3d 721, 732–33 (10th
Cir.
2009)
defendant
(to
must
establish
“set
in
“requisite
motion
8
a
series
causal
of
connection,”
events
that
the
defendant
knew
or
should
have
known
would
cause
others
to
deprive the plaintiff of her constitutional rights”).
Plaintiff’s last allegation about Defendants Ash and Fewell
is that they “allowed” charges to be filed against him.
To
state a claim for retaliatory prosecution, Plaintiff must show:
(1) “a retaliatory motive on the part of an official urging
prosecution” and (2) “an absence of probable cause supporting
the prosecutor's decision to go forward.”
265.
Hartman, 547 U.S. at
Plaintiff has alleged a retaliatory motive on the part of
Defendants Ash and Fewell: impeding his recovery in a civil
lawsuit.
However, he simply makes the allegation without any
supporting facts.
For instance, he does not state when charges
were filed in relation to the filing of this lawsuit or whether
Defendant Ash or Fewell said something indicating they had a
retaliatory,
charges.
or
perhaps
prophylactic,
motive
in
pursuing
Plaintiff also does not address the probable cause
determination, other than to describe his version of events.
move
forward
with
a
retaliatory
prosecution
claim,
To
Plaintiff
will need to provide more facts to “nudge[] [his] claims across
the line from conceivable to plausible.”
Twombly, 550 U.S. at
570.
Defendants Ash and Fewell do not appear to be properly
named
as
defendants
and
are
subject
action.
9
to
dismissal
from
this
Mr. Thomas alleges Defendants Patrick and Russell failed to
reprimand the deputies involved in the incident and failed to
answer his grievance.
not
state
a
claim
As discussed above, these allegations do
under
§
1983,
and
Defendants
Patrick
and
Russell are subject to dismissal.
Plaintiff’s allegations about Defendants Collins, Carver,
Simmons, and Anderson-Simpson are essentially that they viewed
the body camera evidence and did not agree with Plaintiff’s
description of the incident, and that they failed to accurately
document or describe Plaintiff’s injuries.
As with the failure
to reprimand claim, this claim involves actions that occurred
after Plaintiff’s injury and does not make out a constitutional
violation.
Defendants Collins, Carver, Simmons, and Anderson-
Simmons are also subject to dismissal.
Summary
For the reasons discussed above, Defendants Ash, Fewell,
Dupree, Onions, Sutherland, Collins, Patrick, Russell, Carver,
Simmons, and Anderson-Simpson are subject to dismissal from this
42 U.S.C. § 1983 action under 28 U.S.C. § 1915A(b) and 28 U.S.C.
§ 1915(e)(2)(B).
Plaintiff
dismissed.
to
show
Accordingly,
cause
why
the
these
Court
defendants
will
should
direct
not
be
The failure to file a specific, written response
waives de novo review by the District Judge, see Thomas v. Arn,
474 U.S. 140, 148-53 (1985), and also waives appellate review of
10
factual
and
legal
allegations.
Makin
v.
Colo.
Dept.
of
Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED that within thirty (30) days of
receipt
of
Honorable
this
Sam
A.
order,
Crow
Plaintiff
why
shall
Defendants
show
Ash,
cause
Fewell,
to
the
Dupree,
Onions, Sutherland, Collins, Patrick, Russell, Carver, Simmons,
and Anderson-Simpson should not be dismissed from this matter.
IT IS SO ORDERED.
DATED:
This 6th day of July, 2017, at Kansas City, Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
11
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