Bostic v. Wyandotte County Police Department

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAJHON AMARIA BOSTIC,
Plaintiff,
v. CASE NO. 25-3056-JWL
WYANDOTTE COUNTY
POLICE DEPARTMENT, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is currently
in the custody of the Missouri Department of Corrections. The Court granted Plaintiff leave to
proceed in forma pauperis. (See Doc. 8.)
Plaintiff alleges that he was subjected to excessive force when he was arrested on February
10, 2024, after fleeing law enforcement officers in a vehicle and on foot.
After ordering, receiving, and reviewing a Martinez Report in this case, the Court entered
a Memorandum and Order to Show Cause (Doc. 22) (“MOSC”) ordering Plaintiff to show good
cause by December 22, 2025, why his Complaint should not be dismissed for failure to state a
claim. This matter is before the Court on Plaintiff’s responses to the MOSC (Docs. 24, 28) and
Plaintiff’s Second Amended Complaint (Doc. 31) (“SAC”).1
In the MOSC, the Court found that Plaintiff failed to state a claim for excessive force. “To
state an excessive force claim under the Fourth Amendment, plaintiffs must show both that a
1 Plaintiff filed an amended complaint (Doc. 30) before filing the SAC on February 12, 2026. The Court has treated
the SAC as the operative complaint.
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seizure occurred and that the seizure was unreasonable.” Id. (quoting Bond v. City of Tahlequah,
981 F.3d 808, 815 (10th Cir. 2020) (emphasis in original) (quotation marks omitted)). In assessing
reasonableness, a court “looks at the facts and circumstances as they existed at the moment the
force was used, while also taking into consideration the events leading up to that moment.” Id.
(quoting Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020)). The inquiry is an objective
one, and one that considers the totality of the circumstances. Id. (citation omitted).
Reasonableness is “judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396). “The right to make
an arrest . . . necessarily carries with it the right to use some degree of physical coercion . . . to
effect it.” Edwards v. City of Muskogee, Oklahoma, 841 F. App’x 79, 83 (10th Cir. 2021)
(unpublished) (quoting Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (internal
quotation marks omitted)). “Reasonableness does not require that officers use alternative or less
intrusive means if the conduct is otherwise reasonable.” Arnold v. City of Olathe, Kansas, Case
No. 2:18-cv-02703-HLT, 2021 WL 3129408, at *8 (D. Kan. July 23, 2021) (citation omitted).
The Supreme Court in Graham outlined three factors that guide the reasonableness
analysis: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate
threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or
attempting to evade arrest by flight.” Vette, 989 F.3d at 1169 (quoting Graham, 490 U.S. at 396).
In evaluating the third factor, a court considers “whether the plaintiff was fleeing or
actively resisting at the ‘precise moment’ the officer employed the challenged use of force.” Id.
(citation omitted). The Tenth Circuit has also held that “initial resistance does not justify the
continuation of force once the resistance ceases.” McCoy v. Meyers, 887 F.3d 1034, 1051 (10th
Cir. 2018) (citations omitted).
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The Court considered the reasonableness factors outlined in Vette and found that Plaintiff
failed to state a claim for excessive force. Plaintiff was driving a stolen vehicle, he led LEOs on a
high-speed chase, he posed a threat to the safety of others by repeatedly swerving into oncoming
lanes of traffic and driving the wrong way on an off ramp from I-70 with the headlights out, he
refused to stop and had to be rammed by a police vehicle to forcibly stop his vehicle, he
immediately got out of the vehicle and took off running, he was pursued and repeatedly ordered to
stop, and he did not stop and surrender. While Plaintiff may have made the decision to surrender,
his actions did not appear to reflect that decision at the time he was tased.
As for the removal of the taser prongs, the video shows Plaintiff asking to have the prongs
removed and an officer responding to his request. The video does not show officers yanking out
the prongs. The video also shows that EMS was at the scene and briefly looked at Plaintiff’s torso
where the prongs had been.
The MOSC further found that Plaintiff did not state a federal constitutional claim for the
loss of his cell phone. It is settled that neither a negligent nor an unauthorized, intentional
deprivation of property by a state employee gives rise to a due process violation if state law
provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(intentional taking of property does not implicate due process clause where an adequate state post-
deprivation remedy is available); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981) (inmate could
not present claim against warden under § 1983 for negligent loss of inmate's property where
existence of state tort claims process provided due process). The Court concluded that Plaintiff's
remedy is to pursue his claim of property loss or deprivation in the state courts.
Plaintiff has filed responses to the MOSC and the SAC. He continues to assert that the
taser prongs were improperly removed from his torso. Plaintiff alleges that he has scars and
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ongoing pain from the taser and suffers from mental distress as a result of the use of force incident.
Plaintiff also argues that he was complying with the command to stop when he was tased and
points out that the video footage provided in the Martinez Report does not show the moments
immediately before he was tased. (Doc. 25, at 4-5.) Plaintiff asserts that he was not given “the
appropriate amount of time to surrender and put [his] hands up BEFORE [he] was tazed.” (Doc.
24, at 2, 3.) He also provides additional explanation for fleeing from the police (“I was in fear for
my life when I fled in the stolen vehicle because I was previously out on felony bond”).
Plaintiff attempts to argue that the loss of his cell phone should state a claim under the
Fourth Amendment as a seizure without a warrant. (Doc. 25, at 3-4.) However, Plaintiff is not
complaining about the use of the cell phone as evidence but rather seeks the return or replacement
of his phone. In the SAC, Plaintiff alleges the loss of his cell phone violates the Fourteenth
Amendment. Plaintiff's due process claim related to the loss of his cell phone is dismissed. His
remedy is to pursue his claim of property loss or deprivation in the state courts, as explained in the
MOSC.
Plaintiff concedes in response to the MOSC that the Wyandotte County Police Department
is not a proper defendant to a § 1983 action. In the SAC, Plaintiff names two defendants, Officer
Wood and Master Trooper Garcia. (Doc. 31, at 1.) He asserts that Garcia ordered Plaintiff to stop,
Plaintiff fell down, and Garcia tased him without giving him time to put up his hands and surrender.
Id. at 2. Plaintiff alleges that Wood then ripped the taser prongs out of Plaintiff’s torso, resulting
in “permanent body pain” and emotional distress. Id. at 2, 4.
Plaintiff disputes the allegations in the Martinez Report, maintaining his version of the
events and his allegations set forth in his SAC. The Martinez report developed as a means “to
ascertain whether there is a factual as well as a legal basis for [a] prisoner’s claims.” Gee v. Estes,
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829 F.2d 1005, 1007 (10th Cir. 1987). The Martinez report “is treated like an affidavit, and the
court is not authorized to accept the factual findings of the prison investigation when the plaintiff
has presented conflicting evidence.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (citing
Sampley v. Ruettgers, 704 F.2d 491, 493 n.3 (10th Cir. 1983)). The Court “cannot resolve material
disputed factual issues by accepting the report’s factual findings when they are in conflict with
pleadings or affidavits.” Id. at 1109. “Furthermore, ‘[a] bona fide factual dispute exists even when
the plaintiff’s factual allegations that are in conflict with the Martinez Report are less specific or
well-documented than those contained in the report.’” Bellamy v. Kansas, 2024 WL 3718065, at
n.5 (10th Cir. Aug. 8, 2024) (unpublished) (quoting Hall, 935 F.2d at 1109).
The Court is unable to resolve the factual disputes at this stage of the proceedings.
Therefore, the Court finds that Plaintiff’s excessive force claim survives the screening required by
28 U.S.C. § 1915A(a) and further finds that a responsive pleading is necessary. Because Plaintiff
is proceeding in forma pauperis, the Clerk of the Court must undertake service of process under
28 U.S.C. § 1915(d).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s claim for violation
of his Fourteenth Amendment rights as a result of the loss of his cell phone is dismissed for failure
to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff’s excessive force claim survives the Court’s
screening under 28 U.S.C. § 1915A.
IT IS FURTHER ORDERED that the Court directs the Clerk of the Court to prepare and
issue waiver of service forms for Defendants Garcia and Wood pursuant to Fed. R. Civ. P. 4(d) to
be served upon the defendants at no cost to Plaintiff.
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IT IS SO ORDERED.
Dated February 13, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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