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Eikenberry v. Seward County

United States District Court, D. Kansas

October 17, 2017

MICHAEL WAYNE EIKENBERRY, Plaintiff,
v.
SEWARD COUNTY, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE.

         Order Plaintiff Michael Wayne Eikenberry, a state prisoner appearing pro se, brings this 42 U.S.C. § 1983 civil rights complaint. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's complaint (Doc. #6) is based on the following allegations. An acquaintance of Plaintiff's, Tom Miller, showed up at Plaintiff's house sometime between 1:30 and 3:00 a.m. on August 17, 2013. Mr. Miller was drunk and passed out. Plaintiff went to bed around 7:00 a.m., then woke up around 11:00 a.m. and went to work. When he returned at about 6:30 p.m., he attempted to awaken Mr. Miller. He was unsuccessful and noticed that Mr. Miller was breathing strangely. Plaintiff called 911. Paramedics arrived around 8:00 p.m., along with Defendant Keating, a deputy sheriff. Defendant Keating did a “protective sweep” of Plaintiff's home, and then the paramedics began examining Mr. Miller. When he did not react, they loaded him in the ambulance. After the ambulance and Defendant Keating left, Plaintiff went to sleep around 11:00 p.m.

         Defendants Smalls and Sellars, also deputy sheriffs, arrived at Plaintiff's house around 12:30 a.m. They began searching Plaintiff's outbuildings, vehicles, and trash can. They claim to have repeatedly knocked on Plaintiff's door without any response. Defendant Keating obtained a search warrant signed by Judge Tom Webb at 2:48 a.m. Defendants Ward, Gnat, and Roehr arrived at Plaintiff's house with the search warrant sometime between 3:00 a.m. and 4:00 a.m. on August 18, 2013. They claim to have again knocked and gotten no response. Defendant Roehr proceeded to use a battering ram to open Plaintiff's front door.

         Upon entering and finding Plaintiff in bed asleep, Defendants Roehr and Ward pulled Plaintiff out of bed and violently attacked him without provocation while Defendants Smalls, Keating and Gnat pointed their weapons at him and Defendants Larue and Hawkins, special agents with the Kansas Bureau of Investigation, observed. Plaintiff alleges the defendants beat him because they were told to create injuries so it would appear he had been fighting with Mr. Miller. Apparently, all of these defendants left Plaintiff's house by 4:18 a.m.

         At approximately 9:49 a.m. on August 18, 2013, Defendants Larue and Hawkins returned with another search warrant authorizing the collection of blood and urine samples from Plaintiff. They took Plaintiff to the ambulance garage in Liberal, Kansas, where they took samples, as well as photographs of Plaintiff after making him remove all of his clothing. Plaintiff states the warrant did not authorize a strip search or photographs.

         Plaintiff also alleges that Defendant Koehn, special prosecutor for Seward County, in conspiracy with the other defendants, suppressed hospital reports showing Mr. Miller had no trauma or signs of battery and concealed or destroyed nine (9) toxicology reports, the autopsy photos, and photos of Mr. Miller taken at the hospital. Plaintiff also claims Defendant Koehn prevented witnesses from testifying at his criminal trial and, along with Defendant Peterson, Coroner of Seward County, Defendant Larue, John Doe, and other defendants, manufactured false inculpatory evidence, including the injuries inflicted on Plaintiff during execution of the search warrant, evidence of fractures of Mr. Miller's skull, false affidavits, false DNA evidence that was not even human, and altered photographs, and broke into Plaintiff's home to plant items in a file of evidence produced by the prosecution. Plaintiff further alleges Defendant Koehn altered the trial transcripts and secretly introduced evidence at trial.

         Plaintiff contends all of these actions were in furtherance of a conspiracy to frame him, which in addition to the defendants named above included his defense attorney and an unknown person who ordered the helicopter pilot transporting Mr. Miller between hospitals to fly slowly, taking almost three hours to fly 160 miles, so that Mr. Miller would die.

         Plaintiff brings the following claims in his 53-page complaint:

Count I: Illegal search and seizure and conspiracy asserted against Defendants Ward, Gnat, Roehr, Smalls, Sellars, Keating, McVey, Larue, and Hawkins.
Count II: Excessive force asserted against Defendants Ward, Gnat, Roehr, Keating, Smalls, and Larue.
Count III: Conspiracy asserted against Defendants Ward, Roehr, Gnat, McVey, Keating, Smalls, Sellars, Hawkins, and Larue.
Count IV: Unauthorized strip search and taking of nude photographs asserted against Defendants Hawkins and Larue.
Count V: Abusive and discriminatory police practices asserted against Gnat, Ward, Roehr, Keating, Smalls, Sellars, McVey, Larue, and Hawkins.
Count VI: Failure to train, supervise, and discipline asserted against Defendants Larue, Hawkins, Gnat, and Ward.
Count VII: Monell liability asserted against Defendant Seward County based on its alleged policy for the execution of search warrants.
Count VIII: Concealment of exculpatory evidence and conspiracy asserted against Defendants Keating, Larue, Hawkins, Peterson, Koehn, and Sellars.
Count IX: Manufacturing false inculpatory evidence and conspiracy asserted against Defendants Peterson, Sellars, Gnat, Ward, Roehr, McVey, Keating, Larue, Hawkins, Koehn, and John Doe.
Count X: Fraudulent concealment asserted against Defendants Keating, Larue, Koehn, Peterson, and Gnat.

         Kansas tort claims: Assault and battery, negligence, gross negligence, fraud, medical malpractice.

         Common law obstruction of justice: Asserted against all defendants.

         Plaintiff requests the following relief: (1) a declaratory judgment that Plaintiff did not receive a fair trial, that his constitutional rights were violated by the execution of the search warrants, the creation of false evidence, and the destruction of evidence, and that Defendant Peterson committed medical malpractice; (2) an injunction ordering the staff of Lansing Correction Facility to perform CT scans of Plaintiff's shoulder, knees, and neck, and an injunction disbarring Defendant Koehn and relieving Defendant Peterson of his duties as Seward County Coroner; (3) compensatory damages; and (4) punitive damages.

         II. Statutory Screening of ...


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