Tahchawwickah v. Brennon et al

Filing 7

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until December 18, 2023, in which to show good cause, in writing to the undersigned, why Plaintiff's claims against Defendants Triana and the City of Liberal, Kansas should not b e dismissed without prejudice for the reasons stated herein. In that written response, Plaintiff should also provide the additional information identified above. Plaintiff is granted until December 18, 2023, in which to file a complete and proper am ended complaint that cures the deficiencies and provides the additional information discussed herein. The Clerk is directed to send § 1983 forms and instructions to Plaintiff. Signed by District Judge John W. Lungstrum on 11/15/23. Mailed to pro se party Christopher Tahchawwickah with § 1983 forms and instructions by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER TAHCHAWWICKAH,
Plaintiff,
v.

CASE NO. 23-3238-JWL

NATHAN BRENNON, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff and state prisoner Christopher Tahchawwickah is hereby required to show good
cause, in writing to the undersigned, why his claims against Defendants Noemy Triana and the
City of Liberal, Kansas should not be dismissed due to the deficiencies in Plaintiff’s complaint
that are discussed herein. Plaintiff also is hereby required to provide additional information
required for the Court to complete the screening of this action. In the alternative to providing a
written response to this order, Plaintiff is given the opportunity to file an amended complaint to
cure the deficiencies and provide the necessary additional information.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is in custody
at the Seward County Jail in Liberal, Kansas (“SCJ”). Plaintiff’s motion for leave to proceed in
forma pauperis is pending; the Court is waiting for Plaintiff to provide a certified copy of his
account statement from the SCJ for the 6-month period preceding the filing of the complaint. (See
Doc. 6.)
In his complaint, Plaintiff names as Defendants the City of Liberal, Kansas and Liberal
police officers Nathan Brennon and Noemy Triana. (Doc. 4, p. 1.) As the factual background for

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the complaint, Plaintiff alleges that on July 28, 2023, at around 2:15 p.m., he was walking
southbound on the sidewalk at Kansas Avenue in Liberal, Kansas, when Defendant Brennon pulled
up next to him. Id. at 3-4. Defendant Brennon was responding to a report that a Black male was
walking into oncoming traffic. Plaintiff is a member of the Cheyenne and Arapaho Tribes of
Oklahoma. Id.
Defendant Brennan asked Plaintiff how he was doing and, after Plaintiff responded,
Defendant Brennon asked for his name. Id. at 4. Plaintiff responded and asked if he was a suspect,
and Defendant Brennon said, “No.” Id. When Plaintiff asked if he looked like a suspect who had
committed a crime, Defendant Brennon got out of his vehicle and said, “Now you’re a suspect.”
Defendant Brennon walked over to Plaintiff and demanded his identification; Plaintiff gave his
full name and handed over his wallet, but then “grabbed his wallet back.” Id. Defendant Brennon
then demanded to see Plaintiff’s identification again, so Plaintiff opened his wallet and removed
his identification card. Id.
Defendant Brennon told Plaintiff that he would run Plaintiff’s name and then Plaintiff
would be on his way. Id. Plaintiff asked, “Am I in commission of a felony?” Defendant Brennon
said, “No,” and explained that Plaintiff was not in trouble and that Defendant Brennon was trying
to do his job. Id. at 5. Defendant Brennon also said, however, that he still wanted to run Plaintiff’s
name and he said that if Plaintiff refused to give his identification card, Plaintiff would be arrested
for interference. Id.
As Defendant Triana arrived to assist Defendant Brennon, Defendant Brennon grabbed
Plaintiff and violently threw him to the ground, punching him in the face. Id. Plaintiff was then
arrested and charged with being a pedestrian under the influence, criminal littering, and

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interference with a law enforcement officer. Id. Plaintiff was not given a field sobriety test, a
breathalyzer, a blood test, or a urine test, and the charges were later dismissed. Id. at 2, 5.
Although Plaintiff does not identify in Count I the constitutional right or rights he believes
the events related above violated, other parts of the form complaint refer to wrongful arrest and
false imprisonment (id. at 7), so the Court liberally construes the pro se complaint as asserting the
violation of the Fourth Amendment violation.1 As relief, Plaintiff seeks $5,000,000.00. Id. at 7.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
As relevant here, the Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that . . . seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b)(1)–(2).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally
construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all wellpleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006).
On the other hand, “when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558
(2007).

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If this understanding is inaccurate, Plaintiff should so inform the Court in his response to this order.

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A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’
requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual allegations must
be enough to raise a right to relief above the speculative level” and “to state a claim to relief that
is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant 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, 492 F.3d 1158, 1163
(10th Cir. 2007). The Court “will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis,
500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint
to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218
(citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from
conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context
does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of conduct, much of it innocent,” then the

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plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974).
III. DISCUSSION
A. The City of Liberal, Kansas
This action is subject to dismissal as brought against the City of Liberal, Kansas because
Plaintiff has failed to allege facts that, if true, state a plausible claim against the city. A city may
be liable under 42 U.S.C. § 1983 only when it has deprived a person of his constitutional rights or
has caused a person to be subjected to such deprivation. Connick v. Thompson, 563 U.S. 51, 6061 (2011). A city is not liable merely for the actions of its employees under a theory of respondeat
superior. See id. In other words, “[a] municipality is not directly liable for the constitutional torts
of its employees.” Finch v. Rapp, 38 F.4th 1234, 1244 (10th Cir. 2022) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978)).
To succeed on a claim against a city, Plaintiff “must first show a municipal policy or
custom—either an official rule or one so entrenched in practice as to constitute an official policy.”
Finch, 38 F.4th at 1244. Second, Plaintiff must show that the City “was deliberately indifferent to
constitutional violations that were the obvious consequence of its policy,” by showing that the City
“had ‘actual or constructive notice that its action or failure to act [was] substantially certain to
result in a constitutional violation’ and ‘consciously or deliberately [chose] to disregard the risk of
harm.’” Id. (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)). Actual notice
can be established by showing “a ‘pattern of tortious conduct,’” and constructive notice can be
established “‘if a violation of federal rights is a “highly predictable” or “plainly obvious”
consequence of a municipality’s action or inaction.’” Id. (quoting Barney, 143 F.3d at 1308).
If Plaintiff establishes that the city was deliberately indifferent, the final step is showing

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“that the policy directly caused his constitutional injury . . . by showing that the municipal practice
was closely related to the deprivation of rights.” Id. These are “‘rigorous standards of culpability
and causation.’” Id. at 1246 (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 398 (1997)).
In addition, municipal liability may be premised on decisions made by employees with final
policymaking authority that are relied upon by subordinates or a failure to train or supervise
employees that results from a deliberate indifference to the injuries caused. See City of St. Louis v.
Praprotnik, 485 U.S. 112, 126 (1988); Brammer–Hoelter v. Twin Peaks Charter Acad., 602 F.3d
1175, 1188–89 (10th Cir. 2010).
Even liberally construing the pro se complaint and taking all the facts alleged therein as
true, Plaintiff has not pled a plausible claim against the City of Liberal, Kansas. He has not shown
that the events underlying this complaint were related to any city policy, nor has he shown that the
city was deliberately indifferent to constitutional violations that were the obvious consequence of
that policy, nor has he shown that the policy directly caused his injury, nor has he shown that the
events were caused by city employees who have final policymaking authority, nor has he shown
that the events were the result of a failure to train or supervise. Thus, any claim in this matter
against City of Liberal, Kansas is subject to dismissal.
B. Defendant Triana
This action is subject to dismissal as against Defendant Triana because the complaint does
not sufficiently allege her personal participation in the violation of Plaintiff’s civil rights. An
essential element of a civil rights claim under § 1983 against an individual is that person’s direct
personal participation in the acts or inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). In
other words, a viable § 1983 claim must establish that each defendant caused a violation of

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Plaintiff’s constitutional rights. See Walker v. Johiuddin, 947 F.3d 124, 1249 (10th Cir. 2020)
(quoting Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013)). As a result, Plaintiff must not
only name each defendant in the caption of the complaint, he must do so again in the body of the
complaint and include in the body a description of the acts taken by each defendant that violated
Plaintiff’s federal constitutional rights.
Even liberally construing the pro se complaint, the only action specifically attributed to
Defendant Triana is that she arrived on the scene shortly before Defendant Brennon punched
Plaintiff and threw him to the ground. Without additional allegations as to Defendant Triana’s
involvement or behavior, Plaintiff has failed to allege a plausible claim under § 1983 against
Defendant Triana. Plaintiff will be granted the opportunity to file a complete and proper amended
complaint to cure the deficiency of his claim against Defendant Triana, but first the Court will
identify additional information Plaintiff should include in any such complaint.
C. Additional Information Needed
In order to proceed with the statutorily required screening of the complaint, the Court must
request additional information and clarification from Plaintiff. On page 5 of the complaint, Plaintiff
states that “[t]he charges was later dismissed in Mun. court. [sic]” (Doc. 4, p. 5.) Because Plaintiff
remains incarcerated at the SCJ, it is unclear which charges against him were dismissed. This is
important because if Plaintiff still faces charges that stemmed from the events underlying this
complaint, this Court may be prohibited from hearing Plaintiff’s claims at this time.
In Younger v. Harris, 401 U.S. 37, 46 (1971), the United States Supreme Court instructed
that principles of comity dictate that generally a federal court is not to intervene in ongoing state
criminal proceedings unless “irreparable injury” is “both great and immediate.” “The Younger
doctrine requires a federal court to abstain from hearing a case where . . . (1) state judicial

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proceedings are ongoing; (2) [that] implicate an important state interest; and (3) the state
proceedings offer an adequate opportunity to litigate federal constitutional issues.” Buck v. Myers,
244 F. App'x 193, 197 (10th Cir. 2007) (unpublished) (citing Winnebago Tribe of Neb. v. Stovall,
341 F.3d 1202, 1204 (10th Cir. 2003); see also Middlesex Cty. Ethics Comm. v. Garden State Bar
Ass'n, 457 U.S. 423, 432 (1982)). “Once these three conditions are met, Younger abstention is nondiscretionary and, absent extraordinary circumstances, a district court is required to abstain.” Buck,
244 F. Appx. at 197 (citing Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211,
1215 (10th Cir. 2003)).
Without additional information, however, this Court cannot determine whether the
conditions for a Younger abstention are met here. Thus, in his written response to this order or in
any amended complaint Plaintiff files, he should clarify which charges were dismissed and
whether any criminal action remains pending against him based on the events that led to this federal
civil rights action. If the Younger conditions are met, this action may be stayed pending the
resolution of the state criminal proceedings. See Garza v. Burnett, 672 F.3d 1217, 1220 (10th Cir.
2012) (citing Wallace v. Kato, 549 U.S. 384, 393 (2007)); Myers v. Garff, 876 F.2d 79, 81 (10th
Cir. 1989) (directing district court to stay claim for damages); see also D.L. v. Unified Sch. Dist.
No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); (“[T]he Younger doctrine extends to federal claims
for monetary relief when a judgment for the plaintiff would have preclusive effects on a pending
state-court proceeding.” ).
IV. Response and/or Amended Complaint Required
To avoid dismissal of Defendants Triana and the City of Liberal, Kansas, Plaintiff is
required to show good cause, in writing, why the claims against them should not be dismissed for
the reasons stated herein. If Plaintiff chooses to submit a written response to this order, he should

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also include in that response the additional information identified herein regarding the dismissal
of charges against him and whether there is a current Kansas criminal proceeding against him that
stemmed from these events.
In the alternative, Plaintiff is given the opportunity to file a complete and proper amended
complaint upon court-approved forms that cures all the deficiencies and provides the additional
information discussed herein. To add claims, significant factual allegations, or change defendants,
a plaintiff must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended
complaint is not simply a supplement to the original complaint; instead it completely replaces it.
Therefore, any claims or allegations not included in the amended complaint are no longer before
the Court. In other words, Plaintiff may not simply refer in the amended complaint to an earlier
complaint. The amended complaint must contain all allegations and claims that Plaintiff intends
to pursue in the action, including those to be retained from the original complaint.
Plaintiff must write the number of this case (23-3238-JWL) at the top of the first page of
the amended complaint and must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff must also refer to each defendant again in the body of the
amended complaint, where Plaintiff must allege facts describing the unconstitutional acts taken by
each defendant including dates, locations, and circumstances. If Plaintiff does not file within the
prescribed time a written response to this order and/or an amended complaint that cures the
deficiencies discussed herein, his claims against Defendants Triana and the City of Liberal, Kansas
will be dismissed without further prior notice to Plaintiff.

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
December 18, 2023, in which to show good cause, in writing to the undersigned, why Plaintiff’s

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claims against Defendants Triana and the City of Liberal, Kansas should not be dismissed without
prejudice for the reasons stated herein. In that written response, Plaintiff should also provide the
additional information identified above.
IT IS FURTHER ORDERED that Plaintiff is granted until December 18, 2023, in which
to file a complete and proper amended complaint that cures the deficiencies and provides the
additional information discussed herein. The Clerk is directed to send § 1983 forms and
instructions to Plaintiff.

IT IS SO ORDERED.
Dated November 15, 2023, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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