Thomas v. Ash et al
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,
CASE NO. 17-3065-SAC-DJW
DONALD ASH, et al.,
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
Detention Center (“WCADC”) on December 9, 2016.
Statutory Screening of Prisoner and In Forma Pauperis Complaints
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).
with any litigant, such as Plaintiff, who is proceeding in forma
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.
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).
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.
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
pro se status does not relieve the plaintiff of “the burden of
could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
complaint, he was recovering from surgery to repair a gunshot
Mr. Thomas, who is 6’4”, walked with a noticeable
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
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
actions they were taking but was otherwise compliant.
arrived at the cell, as the officers uncuffed Plaintiff, he
officers then jumped on him, choking him and slamming him down
on the metal bunk.
Defendant Lobner “bashed” Plaintiff’s face
Plaintiff’s head and neck, pressing him against the bunk and
Defendant Ricke, when Plaintiff was already pinned
to the bunk, squeezed and poked his gunshot wound, causing him
Defendant Loeza participated by helping to
The incident was recorded by body camera.
Defendant Danica Baird was one of two sergeants on the
She witnessed the incident, failed to intervene, and in
fact authorized Defendant Ricke to taser Plaintiff when he was
officer present and also failed to intervene.
Mr. Thomas suffered a busted lip, bruised and swollen chin
surgically-repaired gunshot wound.
He has been charged with
In addition to the defendants mentioned above, Plaintiff
names as defendants Donald Ash, the Sheriff of Wyandotte County
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;
failure to respond to grievance); Andrew Carver, Deputy Sheriff
Simmons Jr., Detective,
Wyandotte County Sheriff’s Department
(failure to accurately document the incident); Sherry AndersonSimpson,
(failure to accurately document the incident); Mark Dupree Sr.,
pursuing frivolous charge against Plaintiff as a result of the
Plaintiff’s request for relief includes monetary damages
and dismissal of the criminal charges against him.
After reviewing Plaintiff’s complaint with the standards
set out above in mind, the Court finds that certain defendants
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.
All three are entitled to
liability for the decision to prosecute.
Hartman v. Moore, 547
U.S. 250, 262 (2006), citing Imbler v. Pachtman, 424 U.S. 409,
“A prosecutor is entitled to absolute immunity for
Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007).
alleges the DA acted maliciously, he cites no support for this
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).
Dupree, Onions, and Sutherland are subject to dismissal from
2. Plaintiff fails to state a claim upon which relief may be
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).
Foote v. Spiegel, 118
Supervisory status alone does
Duffield v. Jackson, 545 F.3d
The Tenth Circuit Court of Appeals
complaint must explain what each defendant did to [the pro se
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
However, Plaintiff includes several defendants in his
complaint who appear to be improper.
“frivolous” charges against him “to impede [Plaintiff’s] actions
in seeking civil litigation.”
Doc. #1, p. 1.
not allege these defendants were personally involved in the use
of force against him.
Failure to respond to a grievance is not a constitutional
administrative grievance procedures” exists.
443 F. App'x 331, 332 (10th Cir. 2011).
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
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
Amendment due process or equal protection rights).
the failure of Defendant Ash or Fewell to respond to Plaintiff’s
Plaintiff's constitutional rights.
Neither does a failure to reprimand state a claim for a
relates entirely to actions that the defendants allegedly should
have taken in response to the events at issue here.
Ash and Fewell “cannot have ‘personally participated’ in the
acts giving rise to the injury to the Plaintiff if the actions
Muniz v. Kaspar, 2009 WL 2490144, at *8 (D. Colo. Aug. 14,
2009); citing Poolaw v. Marcantel, 565 F.3d 721, 732–33 (10th
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.
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.”
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
However, he simply makes the allegation without any
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
Plaintiff also does not address the probable cause
determination, other than to describe his version of events.
will need to provide more facts to “nudge [his] claims across
the line from conceivable to plausible.”
Twombly, 550 U.S. at
Defendants Ash and Fewell do not appear to be properly
Mr. Thomas alleges Defendants Patrick and Russell failed to
reprimand the deputies involved in the incident and failed to
answer his grievance.
As discussed above, these allegations do
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
Defendants Collins, Carver, Simmons, and Anderson-
Simmons are also subject to dismissal.
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.
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
Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED that within thirty (30) days of
Onions, Sutherland, Collins, Patrick, Russell, Carver, Simmons,
and Anderson-Simpson should not be dismissed from this matter.
IT IS SO ORDERED.
This 6th day of July, 2017, at Kansas City, Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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