United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE.
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
Nature of the Matter before the Court
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.
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.
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.
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
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.
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.
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
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
Count X: Fraudulent concealment asserted against Defendants
Keating, Larue, Koehn, Peterson, and Gnat.
tort claims: Assault and battery, negligence, gross
negligence, fraud, medical malpractice.
law obstruction of justice: Asserted against all defendants.
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.
Statutory Screening of ...