Abshure v. Brown

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

MICHAEL J. ABSHURE PLAINTIFF

#264866

v. No: 4:23-cv-01090-BSM-PSH

BROWN, et al. DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge

Brian S. Miller. You may file written objections to all or part of this

Recommendation. If you do so, those objections must: (1) specifically explain the

factual and/or legal basis for your objection, and (2) be received by the Clerk of this

Court within fourteen (14) days of this Recommendation. By not objecting, you

may waive the right to appeal questions of fact.

DISPOSITION

Plaintiff Michael J. Abshure, an inmate at the Pulaski County Detention

Facility (“PCDF”), initiated this lawsuit by filing a pro se complaint pursuant to 42

U.S.C. § 1983 on November 16, 2023 (Doc. No. 1). The Court granted Abshure in

forma pauperis status and instructed him to file an amended complaint to clarify and

narrow his claims (Doc. No. 4). The Court warned Abshure that an amended

complaint would render his original complaint without legal effect and that only

claims properly set out in his amended complaint would be allowed to proceed. Id.

He subsequently filed an amended complaint (Doc. No. 5). The Court has screened

Abshure’s amended complaint and finds that he does not describe facts sufficient to

state a claim upon which relief may be granted.

I. Screening Standard

Federal law requires courts to screen prisoner complaints. 28 U.S.C. § 1915A,

1915(e)(2). Claims that are legally frivolous or malicious; that fail to state a claim

for relief; or that seek money from a defendant who is immune from paying damages

should be dismissed before the defendants are served. 28 U.S.C. § 1915A,

1915(e)(2). Although a complaint requires only a short and plain statement of the

claim showing that the pleader is entitled to relief, the factual allegations set forth

therein must be sufficient to raise the right to relief above the speculative level. See

Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555

(2007) (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]to

relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do. . . .”). A complaint must contain enough

facts to state a claim to relief that is plausible on its face, not merely conceivable.

Twombly at 570. A pro se plaintiff’s allegations must be construed liberally, Burke

v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir. 2002),

and the Court must weigh all factual allegations in favor of the plaintiff, unless the

facts alleged are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 32-33

(1992) (explaining that clearly baseless facts include those that are fanciful,

fantastic, and delusional).

II. Analysis

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the

conduct of a defendant acting under color of state law deprived him of a right,

privilege, or immunity secured by the United States Constitution or by federal law.

42 U.S.C. § 1983. In his amended complaint, Abshure sues Deputy Brown from the

Pulaski County Sheriff’s office who transported him to a court proceeding on

September 11, 2023. Doc. No. 5 at 1-2, 4-5. He claims Deputy Brown, the driver

of the transport vehicle, ran into the back of another car in an intersection and then

hit the brakes hard. Id. at 4. Abshure claims he suffered extreme back and neck

pain. Id. He claims he was examined at the hospital a few days later and given a

pain shot, and he received some pain medication after returning to the PCDF but it

was eventually discontinued. Id.

Abshure’s claim against Deputy Brown fails as a matter of law because it

sounds in negligence, which is not actionable under § 1983. See Crow v.

Montgomery, 403 F.3d 598, 602 (8th Cir. 2005) (explaining that intentional conduct,

rather than negligence, is required to sustain a § 1983 claim under both the Eighth

Amendment and the Fourteenth Amendment applicable to pre-trial detainees).

Accordingly, Abshure’s claims against Deputy Brown related to the vehicle accident

should be dismissed without prejudice for failure to state a claim upon which relief

may be granted.

Additionally, Abshure describes no involvement on the part of defendant

Sheriff Higgins. And while he complains that his pain medication was eventually

discontinued at the PCDF, he does not name any defendants who were personally

responsible for his medical treatment. A defendant may not be held liable under §

1983 unless he was personally involved in or had direct responsibility for the

constitutional violation. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir.

2006) (“Liability under section 1983 requires a causal link to, and direct

responsibility for, the deprivation of rights.”) (internal quotations and citations

omitted). Accordingly, Abshure’s claims against Sheriff Higgins as well as his

claims regarding his medical treatment should be dismissed without prejudice for

failure to state a claim upon which relief may be granted.

III. Conclusion

It is therefore recommended that:

1. Abshure’s claims be dismissed without prejudice.

2. Dismissal of this action count as a “strike” within the meaning of 28

U.S.C. § 1915(g).

3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma

pauperis appeal from the order adopting this recommendation would not be taken in

good faith.

IT IS SO RECOMMENDED this 30th day of January, 2024.

UNITED STATES 2 JUDGE