United States District Court, D. Kansas
KENNON D. THOMAS, Plaintiff,
DONALD ASH, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
J. WAXSE U.S. Magistrate Judge.
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.
Screening of Prisoner and In Forma Pauperis
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. §
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).
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.
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.
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.
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
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
request for relief includes monetary damages and dismissal of
the criminal charges against him.
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 ...