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Tapp v. O'Nan

United States District Court, W.D. Kentucky, Owensboro

August 20, 2019

TROY TAPP PLAINTIFF
v.
STUART O'NAN DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley Jr., Senior Judge

         Plaintiff Troy Tapp filed the instant pro se 42 U.S.C. § 1983 action and paid the filing fee. By prior Memorandum Opinion and Order entered May 3, 2019 (DN 13), the Court stayed the action pending the final disposition of Plaintiff's criminal action in Henderson Circuit Court. Plaintiff has now informed the Court that his criminal action has concluded. Therefore, IT IS ORDERED that the STAY is LIFTED.

         This matter is now before the Court upon initial screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that follow, the Court will dismiss some of Plaintiff's claims and allow others to proceed for further development.

         I. SUMMARY OF ALLEGATIONS

         Plaintiff was a pretrial detainee at the Henderson County Detention Center when he filed this action. He filed a complaint (DN 1), an amended complaint (DN 5), and a second amended complaint (DN 8). Plaintiff sues the following Defendants: Sgt. Stuart O'Nan; the Henderson Police Department; the City of Henderson; Ofc. Kyle Stone; Ofc. Cody Griffith; and the Henderson Circuit Court.

         In the original complaint, Plaintiff states that he was shot by Defendant O'Nan on August 21, 2017. He asserts that his right to equal protection under the Fourteenth Amendment was violated. He states that Defendant O'Nan “failed to utilize all available resources prior to using legal force to shoot Tapp.” He continues, “Tapp was shot from behind while he was retreating. Sergeant O'Nan discharged his weapon four (4) times striking Tapp three (3) times.” Plaintiff maintains that Defendant O'Nan has been employed by the Henderson Police Department for five and a half years; has not received use-of-force training; and “has not shot a weapon outside of training on duty.”

         Also in the original complaint, Plaintiff reports that there were four other officers on the scene of the incident. He states that Defendant O'Nan “described Tapp as individual with mental disorders and mentally incoherent. Sergeant O'Nan stated Tapp allegedly had a shot gun to his chin and threatening suicide.” Plaintiff asserts, “Officer Stone described the area as station contained and the immediate area being safe and sound. Officer Stone stated crises prevention was dispatched and on the way. Sergeant O'Nan shot Tapp seven (7) feet away (3) times.” Plaintiff states that he was shot in the arm, stomach, and buttock. He states, “Sergeant O'Nan could have used other resources to resolve the situation.”

         In the first amended complaint, Plaintiff indicates that he wishes to add the Henderson Police Department and the City of Henderson as Defendants and to sue Defendant O'Nan in his individual and official capacities but does not add any substantive allegations.

         In the second amended complaint, Plaintiff states in the section of the form which requests the basis for federal-question jurisdiction, “14 Amendment Equal Protection, Due Process (Bail reform), Inadequate Crissis Training, No. Bond hearing for 11 months and counting Failure to exhaust all resources prior to use of lethal force. $10, 000 Full cash No. Surety No. 10% bond. No. property. Due to civil suit.”

         In the “Statement of Claim” section of the second amended complaint, Plaintiff states, “Ofc. Stuart [O'Nan] took upon himself to shoot Mr. Troy Tapp from behind while walkin from a situation which I believe Mr. Tapp was psychologically & mentally unaware and was not a threat to Officer O'Nan.” Plaintiff asserts, “Mr. Tapp's back was to Ofc. O'Nan and weapon was to Tapp's chin. Other ofc's did not intervene or co-exist claiming they did not see the whole shooting. Like they were not there at the scene. Total inattention. Not Equall Protection. Mr. Tapp suffered 3 gunshot wounds.”

         Plaintiff attaches an additional page in which he states that he was hospitalized after the shooting. He further states as follows:

While hospitalized Mr. Tapp was never under Police Guard. Never handcuffed to the bed. Never handcuffed at all from the moment shot. I understand there were injuries. However from Aug 21, 2017 to Sept 29 around or about. I was released to go home in Henderson, KY. I stayed home free from Police . . . walking with walker, until October 14th no restrictions. I was arrested on 10-14-17 and have been here with 10, 000 dollars bond full cash.

         Plaintiff reports that he had been held on bond for over a year after his bond hearing on October 25, 2017, and that he had asked the judge and his public defender in his criminal case for help to no avail. He states, “They are aware of me contacting the United States and are really making it hard for me.” He states that he had an evaluation done but was not allowed to see the results. He asserts that he was “denied access to magistrate all together. That never happened to me in my life. So, now I don't know what going on.” He states that another court date was scheduled but he was sure there would be another continuance. He states, “They want me to break. Its in Lords hand and the United States.”

         In the “Relief” section of the form, Plaintiff states, “Handicapped right wrist hand (can't grip bone loss), walks with cane right leg damaged bone loss painful limp, stomach pain intestine surgically removed surgically implanted rod in right leg. Pins in right hand wrist ...


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