Blackburn v. Waggoner et al
Filing
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MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim. Signed by District Judge John W. Lungstrum on 1/28/2025. Mailed to pro se party Michael L. Blackburn by regular mail. (jal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL L. BLACKBURN,
Plaintiff,
v.
CASE NO. 24-3181-JWL
BRADLEY WAGGONER, Police Officer,
Neodesha Police Department, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. At the time of
filing, Plaintiff was in custody at the Wilson County Jail in Fredonia, Kansas. Plaintiff has since
been released from custody. The Court granted Plaintiff leave to proceed in forma pauperis. On
December 19, 2024, the Court entered a Memorandum and Order to Show Cause (Doc. 6)
(“MOSC”) granting Plaintiff until January 21, 2025, in which to show good cause why his
Complaint should not be dismissed for the reasons set forth in the MOSC or to file an amended
complaint to cure the deficiencies. Plaintiff has failed to respond by the Court’s deadline.
Plaintiff’s factual allegations and the Court’s screening standards are set forth in detail in
the Court’s MOSC. In summary, Plaintiff’s claims are based on the towing of his camper trailer
that was parked on private property. Plaintiff claims “[i]llegal towing and seizure of [his]
property from private property” in violation of the Fourth Amendment. (Doc. 1, at 5.) Plaintiff
names as defendants: Bradley Waggoner, a police officer with the Neodesha Police Department;
and Samuel Tomlinson, Chief of Police, Neodesha Police Department.
Plaintiff seeks
“[c]ompensation for Towing and Storage fees and damages [that] occurred during towing and
storage” and “compensation for distress.” Id. at 8.
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The Court found in the MOSC that: Plaintiff failed to argue or provide any evidence
suggesting that the towing of his trailer was objectively unreasonable under the circumstances of
his case; Plaintiff failed to allege facts supporting his claim that the seizure was unlawful; and
Plaintiff failed to allege how the defendant officers were involved in the seizure. The Court
ordered Plaintiff to show good cause why his Fourth Amendment claim should not be dismissed
for failure to state a claim.
The Court also found that Plaintiff failed to state a due process claim. The Court found
that: Plaintiff has not shown that an unreasonable seizure by state actors occurred; even if
Plaintiff could show that he was entitled to due process, deprivations of property do not deny due
process as long as there is an adequate post-deprivation remedy; and Plaintiff failed to allege that
an adequate post-deprivation remedy was unavailable. The Court found that because Plaintiff
failed to show an unreasonable seizure by Defendants, and in any event, the lack of a state postdeprivation remedy, Plaintiff must show cause why his claim should not be dismissed for failure
to state a claim.
The Court’s MOSC provides that “[i]f Plaintiff does not file an amended complaint
within the prescribed time that cures all the deficiencies discussed herein, this matter will be
decided based upon the current deficient Complaint and may be dismissed without further notice
for failure to state a claim.” (Doc. 6, at 8.) Plaintiff has failed to respond by the Court’s deadline
and has failed to show good cause why his Complaint should not be dismissed for failure to state
a claim.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for
failure to state a claim.
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IT IS SO ORDERED.
Dated January 28, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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