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Thomas v. Ash

United States District Court, D. Kansas

July 6, 2017

KENNON D. THOMAS, Plaintiff,
v.
DONALD ASH, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          DAVID J. WAXSE U.S. Magistrate Judge.

         Plaintiff, a pre-trial detainee appearing pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Mr. Thomas alleges that his Fourteenth and Eighth Amendment rights were violated when deputies used excessive force against him at the Wyandotte 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 pauperis, the Court has a duty to screen the complaint to determine its sufficiency. 28 U.S.C. § 1915(e)(2). 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 (10thCir. 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 facts on which a recognized legal claim could be based.” 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 wound to his right leg. He wore a medical-issued orange jumpsuit, given to medically disabled inmates to distinguish them at a glance from the healthy inmates who wore striped jumpsuits. 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 the actions they were taking but was otherwise compliant. 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. Defendant Lobner “bashed” Plaintiff's face against the bunk, 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 to the bunk, squeezed and poked his gunshot wound, causing him “tremendous” pain. Defendant Loeza participated by helping to secure Plaintiff's legs. Defendant Ricke then tasered Mr. Thomas twice. 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 tooth, and injury to the surgically-repaired gunshot wound. He has been charged with assaulting a law enforcement 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); Andrew Collins, Deputy Sheriff (failure to photograph Plaintiff's injuries; failure to report the incident); Major Patrick (failure to reprimand; failure to respond to grievance); Major Russell (failure to reprimand; failure to respond to grievance); Andrew Carver, Deputy Sheriff (failure to report the officers involved in the incident; failure to accurately document the incident); Michael DeMile Simmons Jr., Detective, Wyandotte County Sheriff's Department (failure to accurately document the incident); Sherry Anderson-Simpson, Detective, Wyandotte County Sheriff's Department (failure to accurately document the incident); Mark Dupree Sr., Wyandotte County District Attorney (“DA”); Danielle Onions, Assistant DA; and John Sutherland, Assistant DA (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 ...


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