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