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Despain v. City of Louisville

United States District Court, W.D. Kentucky, Louisville Division

January 28, 2015

MICHAEL RAY DESPAIN, Plaintiff,
v.
CITY OF LOUISVILLE et al., Defendants.

MEMORANDUM OPINION AND ORDER

DAVID H. HALE, District Judge.

This matter is currently before the Court on initial review pursuant to 28 U.S.C. § 1915A of Plaintiff Michael Ray DeSpain's pro se complaint. For the reasons that follow, the Court will dismiss a portion of the complaint and allow the remaining claims to proceed.

I. SUMMARY OF CLAIMS

Plaintiff is a pretrial detainee currently incarcerated in the Kentucky State Reformatory (KSR). He brings suit under 42 U.S.C. § 1983 against the following Defendants: City of Louisville; Louisville Metro Police Chief Steven Conrad; Lt. Kit Stemile, Supervisor of Louisville Metro Police Department (LMPD) Viper Squad; Det. Chad Stewart; M. Nobles; A. Browning; D. Hyche; D. Henzley; T. McKnight; J. Mattingly; T. James; J. Casse; J. Judah; Lt. Ryan C. Bates, Supervisor/Commander of SWAT; and 25 Unknown SWAT Team Agents. He sues each Defendant in his or her individual and official capacities.

According to the complaint, on September 18, 2013, Defendants "Chad Stewart et.al and twenty-five (25) unknown SWAT team officers came to the plaintiffs' home and executed a search warrant they claim was from Hon Mitch Perry...." At approximately 4:30 p.m., while Plaintiff was at home, "the front windows crashed and two flash grenades exploded near plaintiffs face and back and set furniture on fire and defendants intentionally tear sofa cushions as they toss them threw the window." Defendants "Chad Stewart et.al. intentionally knock out windows from the inside with their guns after plaintiffs already in custody, then come back and knock out window casings from the mortar." Plaintiff claims that "[a]t no time did Chad Stewart et.al. ever attempt to knock or announce his presence before knocking out windows." He continues:

5. Plaintiff sat on sofa after flash bangs with hands up guarding his face. Plaintiff was blinded and stunned when one member of the twenty-five (25) unknown SWAT team defendants ran up and kicked plaintiff twice in the chest
6. Plaintiff was removed from the sofa and thrown into the floor; plaintiff was kicked, stomped and fisted numerous times by two (2) SWAT team members. Plaintiff was then dragged out onto the front porch and kicked, stomped and fisted numerous times by Four (4) SWAT team members. One of the SWAT team members held onto the porch column to gain balance as he continued to stomp plaintiff. Plaintiff remembers being woke up from unconsciousness, then tazed and beat more while still on front porch.
7. Plaintiff was then dragged out into front yard and placed in a sitting position. Plaintiff was denied E.M.S. medical treatment other than removing tazer darts from his back and given neck brace. Plaintiff was transported to jail, but was only there for 13 days and then transported to K.S.R. for medical do to his medical condition. Plaintiff previously had three major neck surgeries with (plate, screws, cables and spacers) inserted.

Plaintiff reports that he requires "further studies with M.R.I. or CT scan but due to monetary constraints of D.O.C. [presumably the Department of Corrections] plaintiff has been placed in wheel chair in order to prevent paying for any further studies." He claims that it feels like his plate, screws, cables, and spacers "have been stomped loose, " and he reports that he continues to experience "excruciating pain."

Plaintiff asserts that he noticed Defendant Stewart "added words to his investigation report after he completed his search and seizure." Defendant Stewart allegedly added "plaintiff was trafficking in marijuana'" and "plaintiff has a grow operation in his residence.'" According to Plaintiff, these statements were added "to justify the excessive damages that was done to residence and the plaintiff." He further maintains that on March 31, 2014, after receiving discovery, he learned that his home security recorder had been tampered with after he viewed the DVD.

Plaintiff identifies Defendant Det. Stewart as the "assigned assessor and lead detective for plaintiffs residence" on September 18, 2013, and claims that Defendant Det. Stewart had a duty and was legally responsible "for the complete operations, supervision of Viper Squad, and SWAT Team; this is including the conduct of those under his supervision." He further identifies Defendant Bates as the "Unit Supervisor/Commander of the LMPD SWAT Team" on September 18, 2013, and claims that Defendant Bates had a duty and was legally responsible "for all operations, commands and equipment along with the proper training to prevent civil right violations."

Additionally, Plaintiff asserts that Defendants City of Louisville and Chief Conrad, on September 18, 2013, had a duty and legal responsibility for the "operations, up-keep and proper training" for the employees of the LMPD. He further asserts that Defendant Lt. Stemile, on September 18, 2013, was commander/supervisor and had a duty and legal responsibility "for proper Organization and training to prevent civil rights from being violated by the LMPD Viper Squad unit, and is legally responsible for all operations handled by the Viper Squad...."

As relief, Plaintiff seeks monetary and ...


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