Mickles (ID 73047) v. Steele et al

Filing 6

ORDER ENTERED: The court grants plaintiff time until May 26, 2021, to show cause why this case should not be dismissed or to file an amended complaint which states sufficient facts to describe plausible constitutional claim. Signed by U.S. District Senior Judge Sam A. Crow on 04/26/21. Mailed to pro se party LeWayne Marcus Mickles by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEWAYNE MARCUS MICKLES,
Plaintiff,
vs.

Case No. 21-3023-SAC

MICHAEL STEELE, JEREMIAH T. HERR
and JOSEPH CHAIHARR,
Defendants.
O R D E R
Plaintiff, pro se, has filed this action alleging a violation
of his constitutional rights by the alleged use of excessive force
by three Kansas City, Kansas police officers during an arrest.
Plaintiff brings this case pursuant to 42 U.S.C. § 1983.1

This

case is before the court for the purposes of screening pursuant to
28 U.S.C. § 1915A.
I. Screening standards
Section 1915A requires the court to review cases filed by
prisoners seeking redress from a governmental entity or employee
to determine whether the complaint is frivolous, malicious or fails
to state a claim upon which relief may be granted.

A court

liberally construes a pro se complaint and applies “less stringent

1

Title 42 United States Code Section 1983 provides a cause of action against
“[e]very person who, under color of any statute, ordinance, regulation, custom,
or usage of any State . . . causes to be subjected, any citizen of the United
States . . . to the deprivation of by rights, privileges, or immunities secured
by the Constitution and laws [of the United States].”

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standards than formal pleadings drafted by lawyers.”
Pardus, 551 U.S. 89, 94 (2007).

Erickson v.

But, a pro se litigant is not

relieved from following the same rules of procedure as any other
litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
Conclusory allegations without supporting facts “are insufficient
to state a claim upon which relief can be based.”

Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991).

The court “will not supply

additional

round

factual

allegations

to

out

a

plaintiff’s

complaint or construct a legal theory on plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
When deciding whether plaintiff’s complaint “fails to state
a claim upon which relief may be granted,” the court must determine
whether

the

complaint

contains

“sufficient

factual

matter,

accepted as true, to ‘state a claim for relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The court

accepts the plaintiff’s well-pled factual allegations as true and
views them in the light most favorable to the plaintiff.
States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).

United

The court

may also consider the exhibits attached to the complaint.

Id.

The court, however, is not required to accept legal conclusions
alleged in the complaint as true. Iqbal, 556 U.S. at 678. “Thus,
mere ‘labels and conclusions' and ‘a formulaic recitation of the
elements of a cause of action’ will not suffice” to state a claim.
2

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(quoting Twombly, 550 U.S. at 555).
A viable § 1983 claim must establish that each defendant
caused a violation of plaintiff’s constitutional rights.

Walker

v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir. 2020)(quoting Pahls
v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013)).
Plaintiffs must do more than show that their rights were
violated or that defendants, as a collective and
undifferentiated whole, were responsible for those
violations. They must identify specific actions taken
by particular defendants, or specific policies over
which particular defendants possessed supervisory
responsibility…
Id. at 1249-50 (quoting Pahls); see also, Robbins v. State of
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)(“a complaint must
make clear exactly who is alleged to have done what to whom”).
II. Plaintiff’s complaint
Plaintiff alleges that on January 31, 2019 he was pursued on
foot by police in the vicinity of a Taco Bell in Kansas City,
Kansas.

Plaintiff

restaurant.

dove

into

the

drive-thru

window

of

the

He was restrained in a bear hug by a store employee.

Plaintiff alleges in Count I that defendant Michael Steele, a KCK
police officer, reached plaintiff in the Taco Bell and punched
plaintiff in the face three or four times with a closed fist while
using profanity.

Plaintiff further alleges that defendant Steele

and defendants Herr and Chaiharr (who also are KCK officers)
“pounced on my back causing injury along with four other officers
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unknown at this time.

Plaintiff alleges a lung injury in Count II

by defendants Steele and Herr.

In Count III, plaintiff alleges

injury by the three defendants “that le[]d to a heart attack and
blood clots on lungs in August 2019.”
III. Screening
The Tenth Circuit has held that law enforcement may display
force, place suspects on the ground, and use handcuffs to protect
their personal safety and maintain the status quo.
McCauley, 478 F.3d 1108, 1130 (10th Cir. 2007).
does not excuse an excessive degree of force.

Cortez v.

This, however,

Id.

Recently, the Tenth Circuit cited the following passage from
Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007)
for standards to apply to an excessive force claim in an arrest
situation:
The Fourth Amendment forbids unreasonable seizures,
including the use of excessive force in making an arrest.
To determine whether the force used in a particular case
is excessive “requires a careful balancing of the nature
and quality of the intrusion on the individual's Fourth
Amendment
interests
against
the
countervailing
governmental interests at stake.” Graham v. Connor, 490
U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)
(internal quotation marks omitted). The ultimate
question “is whether the officers’ actions are
objectively reasonable in light of the facts and
circumstances confronting them.” Id. at 397, 109 S.Ct.
1865
(internal
quotations
marks
omitted).
This
determination “requires careful attention to the facts
and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or

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attempting to evade arrest by flight.” Id. at 396, 109
S.Ct. 1865.
Hooks v. Atoki, 983 F.3d 1193, 1200 (10th Cir. 2020).

The Tenth

Circuit has also held that “initial resistance does not justify
the continuation of force once the resistance ceases.” McCoy v.
Meyers, 887 F.3d 1034, 1051 (10th Cir. 2018).
The court has examined the complaint and the exhibits filed
with the complaint.

Plaintiff’s exhibits are annotated with

comments which are somewhat unclear.
exhibits

for

commentary

in

context
the

but

margins

declines
or

The court considers the
to

between

rely
lines

upon
to

plaintiff’s
augment

the

complaint’s allegations.
From the complaint and the exhibits filed with the complaint,
it appears that plaintiff was being pursued in connection with
serious crimes and that he was attempting to evade arrest.2

The

complaint cites the following statement attributed to defendant
Steele:

“Officer Steele stated that the suspect began [to] pull

away from him, and due to [the] immediate need to take the suspect
into custody for fear[] of others[‘] safety due to the violent
crimes the suspect committed he (Officer Steele) delivered 3-4
hand strikes to suspect’s face.”

Doc. No. 1, p. 7.

2

Exhibits to the complaint indicate that the police were investigating a stolen
police cruiser that had been wrecked and abandoned, and that they were flagged
down in the Taco Bell parking lot by a woman accusing plaintiff of attempting
to steal her vehicle and taking twenty dollars.

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Plaintiff makes general accusations that defendant Steele
acted deliberately and maliciously to cause harm and violate
plaintiff’s

constitutional

rights.

Plaintiff

“police brutality” and “sadistic intent.”

broadly

claims

Plaintiff also states

that he did not hit any policeman or anyone else.
The court concludes that plaintiff does not allege sufficient
facts, as opposed to legal conclusions, to make a plausible claim
of excessive force against any named defendant.

From the facts

alleged in the complaint it appears that serious crimes were
suspected, an immediate threat was posed by plaintiff’s flight and
resistance, and this resistance continued as police approached him
and attempted to place him in custody.
IV. Conclusion
The facts alleged in the complaint fail to state a plausible
claim of excessive force against the three named defendants.

The

court shall grant plaintiff time until May 26, 2021 to show cause
why this case should not be dismissed or to file an amended
complaint which states sufficient facts to describe plausible
constitutional claim.
IT IS SO ORDERED.
Dated this 26th day of April 2021, at Topeka, Kansas.
s/Sam A. Crow______________________
U.S. District Senior Judge

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