Basham v. Conkleton

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

CHAUNCY DESTRE BASHAM PLAINTIFF

v. Civil No. 4:19-cv-4099

CHIEF OF POLICE BOB HARRISON,

Texarkana, Arkansas; OFFICER JOHN DOE,

Texarkana Police Department; CORPORAL

D. ROGERS, Miller County Detention Center;

SERGEANT J. GUTHRIE, Miller County

Detention Center; SHERIFF JACKIE RUNION,

Miller County, Arkansas; BUBBA GREEN

TOWING; OFFICER JOHN DOE, Texarkana,

Arkansas Police Department; JOHN DOE,

Administrative Officer, Miller County

Detention Center DEFENDANTS

ORDER

This is a civil rights action filed by Plaintiff Chauncy Destre Basham pursuant to 42 U.S.C.

§ 1983. The case is before the Court for preservice screening under the provisions of the Prison

Litigation Reform Act (“PLRA”). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to

screen any complaint in which a prisoner seeks redress from a governmental entity, officer, or

employee.

I. BACKGROUND

Plaintiff filed his Complaint on August 21, 2019. (ECF No. 1). Plaintiff proceeds in this

matter pro se and in forma pauperis. (ECF Nos. 1, 2, 3, 7). On September 11, 2019, the Court

directed Plaintiff to file an amended complaint by October 2, 2019. (ECF No. 6). The Court also

directed the Clerk of Court to mail Plaintiff a court-approved section 1983 form to use for filing

the amended complaint and instructed that Plaintiff’s amended complaint should include:

short, plain statements telling the Court: (1) the constitutional right Plaintiff

believes was violated; (2) the name of the Defendant who violated the right; (3)

exactly what the Defendant did or failed to do; (4) how the action or inaction of that

Defendant is connected to the violation of Plaintiff’s constitutional rights; and (5)

what specific injury Plaintiff suffered because of that Defendant’s conduct.

Plaintiff must repeat this process for each person he has named as a Defendant.

Id. (internal citation omitted).

Plaintiff filed his Amended Complaint on September 26, 2019. (ECF No. 7). Plaintiff lists

the following Defendants in the Amended Complaint: Police Chief Bob Harrison; Sheriff Jackie

Runyon; Sergeant D. Rogers; Sergeant J. Guthrie; Arresting Officer “John Doe,”; Sergeant Griffie;

and Bubba Green of Bubba Green Towing. (ECF No. 7).

Plaintiff’s first claim is for “medical care (bill)” with a date of occurrence of July 8, 2019.

He lists Chief Bob Harrison and Patrol Officer “John Doe” in connection with this claim, naming

them in both their official and individual capacities. Plaintiff’s description of the acts or omissions

forming the basis of this claim are as follows: “Officer ‘John Doe’ placed me in the back of a hot

patrol car, which caused severe dehydration and a hospital bill in the amount of $2,454.86.” When

asked to describe a custom or policy that caused the violation of his constitutional rights, Plaintiff

states “U.S. Constitution right Amend. 8. Excessive fines imposed.” (ECF No. 7).

Plaintiff second claim is for “cruel and unusual punishment” with a date of occurrence of

July 8, 2019. He lists Chief Bob Harrison and Patrol Officer “John Doe” in connection with this

claim, naming them in both their official and individual capacities. Plaintiff’s description of the

acts or omissions forming the basis of this claim are as follows: “Officer ‘John Doe’ placed me in

a hot squad car which caused me to be sick with severe dehydration.” When asked to describe a

custom or policy that caused the violation of his constitutional rights, Plaintiff states “U.S.

Constitutional Right Amend. 8 cruel and unusual punishment.” (ECF No. 7).

Plaintiff third claim is for “seizure of property” with a date of occurrence of July 8, 2019.

He lists Chief Bob Harrison, Patrol Officer “John Doe,” and Bubba Green as Defendants, naming

them in both their official and individual capacities Plaintiff’s description of the acts or omissions

forming the basis of this claim are as follows: “Patrol officer ‘John Doe’ pulled me over in my

yard and had Bubba Green tow vehicle which cost $215.00.” When asked to describe a custom or

policy that caused the violation of his constitutional rights, Plaintiff states “U.S. Constitutional

Right Amend. 8-4 Excessive fines imposed unreasonable seizure of property.” (ECF No. 7).

Plaintiff seeks “[r]eimbursement for all costs incurred, towing fees, med bills, fines, court

cost etc. My pain and suffering, loss of wages, precious family time. $300,000.00 and dismissal

of all charges.” (ECF No. 7).

II. STANDARD

Under the PLRA, the Court is obligated to screen the case prior to service of process being

issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are

frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it

does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has asserted

sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded . . . to less

stringent standards than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747 F.3d 537,

541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, even a pro

se plaintiff must allege specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d

1334, 1337 (8th Cir. 1985).

III. DISCUSSION

A federal cause of action exists for the deprivation, under color of law, of a citizen’s

“rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42

U.S.C. § 1983. In order to state a claim under section 1983, plaintiff must allege that the defendant

acted under color of state law and that he violated a right secured by the Constitution. West v.

Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). The

deprivation must be intentional; mere negligence will not suffice to state a claim for deprivation

of a constitutional right under section 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson

v. Cannon, 474 U.S. 344 (1986).

A. Claim One

In his first claim, Plaintiff seems to be seeking relief due to fact that he incurred medical

bills while in custody of the Texarkana, Arkansas Police Department. (ECF No. 7). As discussed

below, this claim should be dismissed for failure to state a claim upon which relief can be granted.

“[W]hen the State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

and general well-being.” County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (citation

omitted). The Eighth Amendment prohibits cruel and unusual punishment and requires that the

State provide medical care to any individual in custody. However, prisoners may be charged for

medical care as long as they are not denied medical care due to an inability to pay. See Roberson

v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999) (“Roberson’s primary complaint against the

County is its policy of requiring inmates to pay for their own medications if they can afford to do

so. That is not a federal constitutional violation.”).

Plaintiff has not alleged that he was denied medical care because he could not pay for said

medical care. Thus, Plaintiff has not asserted a viable individual capacity claim with respect to his

medical bill. Plaintiff further fails to allege any plausible official capacity claim against either of

the Defendants. Under section 1983, a defendant may be sued in either his individual or official

capacity or both. Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). Official capacity claims

are “functionally equivalent to a suit against the employing governmental entity.” Veatch v.

Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Accordingly, Plaintiff’s official

capacity claims are treated as claims against Miller County, Arkansas. See Murray v. Lene, 595

F.3d 868, 873 (8th Cir. 2010).

“[I]t is well established that a municipality [or county] cannot be held liable on a

respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish [Defendant’s] liability

under section 1983, a “plaintiff must show that a constitutional violation was committed pursuant

to an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d

814, 817 (8th Cir. 2009) (citation omitted).

In identifying “the custom or policy that you believe caused the violation of your

constitutional rights,” Plaintiff states: “U.S. Constitution right Amend. 8. Excessive fines

imposed.” (ECF No. 7). Plaintiff has identified no policy or custom of the Texarkana, Arkansas

Police Department or the Miller County Detention Center which violated his rights. He, therefore,

fails to state any plausible official capacity claim against either of the Defendants and those claims

should be dismissed.

B. Claim Two

Plaintiff’s second claim is for cruel and unusual punishment with respect to his allegations

that to Officer “John Doe” placed him in a hot squad car, causing severe dehydration. Plaintiff

names both Officer “John Doe” and Chief of Police Bob Harrison, in both their official and

individual capacities to this claim.

“Liability under § 1983 requires a causal link to, and direct responsibility for, the

deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citation

omitted). Further, “[a] supervisor is not vicariously liable under 42 U.S.C. § 1983 for an

employee’s unconstitutional activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994). Instead,

the supervisor must be personally involved in the alleged constitutional violation or his inaction

must constitute deliberate indifference towards the constitutional violation. Boyd v. Knox, 47 F.3d

966, 968 (8th Cir. 1995). Because Plaintiff has failed to include any direct allegations against

Defendant Harrison, he has failed to assert a viable individual capacity claim against Harrison and

said claim should be dismissed.

Plaintiff further fails to allege any plausible official capacity claim against either of the

Defendants. In identifying “the custom or policy that you believe caused the violation of your

constitutional rights,” Plaintiff states: “U.S. Constitutional Amend, 8 cruel and unusual

punishment.” (ECF No. 7 at 8). Plaintiff has identified no policy or custom of the Texarkana,

Arkansas Police Department or the Miller County Detention Center which violated his rights. He,

therefore, fails to state any plausible official capacity claim against either of the Defendants and

those claims should be dismissed.

However, Plaintiff has stated a plausible individual capacity claim against Patrol Officer

“John Doe.” Accordingly, Plaintiff’s individual capacity claim for cruel and unusual punishment

against Patrol Officer “John Doe” remains. The Court will give Plaintiff thirty (30) days to amend

his complaint to identify the John Doe Defendant for purposes of service. If Plaintiff fails to

identify the John Doe Defendant, the Court will dismiss the claim against him without prejudice.

C. Claim Three

In his third claim, Plaintiff asserts “seizure of property” against Patrol Officer “John Doe,”

Police Chief Bob Harrison, and Bubba Green. Plaintiff asserts that his vehicle was towed by Bubba

Green after Patrol Officer “John Doe” pulled him over. Plaintiff’s allegations do not rise to the

level of a federal constitutional violation.

An unauthorized intentional deprivation of property by a state or county employee does

not constitute a violation of the procedural requirement of the Due Process Clause of the

Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available. Hudson

v. Palmer, 468 U.S. 517, 533 (1984). Arkansas law provides a post-deprivation remedy for a loss

of property in the form of an action for the tort of conversion. See Brown v. Blake, 86 Ark. App.

107, 116-17, 161 S.W. 3d 298, 305 (2004). Plaintiff can assert a conversion claim in state court,

so he does not have a valid federal claim under 42 U.S.C. § 1983. Accordingly, Plaintiff’s claim

for seizure of property fails and should be dismissed. Plaintiff has also identified no policy or

custom of the Texarkana, Arkansas Police Department or the Miller County Detention Center

which violated his rights. He, therefore, fails to state any plausible official capacity claim.

Moreover, Plaintiff’s allegations do not support any plausible cause of action for relief

under 42 U.S.C. § 1983 against Bubba Green Towing because Plaintiff has alleged no facts

showing it was acting under color of state law. Instead, Plaintiff’s allegations show that Bubba

Green Towing was acting in its capacity as a private citizen. Accordingly, the Court finds that

Bubba Green Towing is not a state actor and Plaintiff’s claims against it should be dismissed.

D. Other Defendants

“Liability under section 1983 requires a causal link to, and direct responsibility for, the

deprivation of rights. To establish personal liability on the part of a defendant, [a plaintiff] must

allege specific facts of personal involvement in, or direct responsibility for, a deprivation of [his]

constitutional rights.” Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (citation and

internal quotation marks omitted). Merely listing a defendant in a case caption is insufficient to

support a claim against that defendant. Krych v. Hass, 83 Fed. App’x. 854, 855 (8th Cir. 2003)

(stating that court properly dismissed pro se complaint that was silent as to defendant except for

his name appearing in caption).

Plaintiff names Defendants Runion, Rogers, Guthrie, and Griffie as defendants in this case

but alleges no facts related to them. Thus, Plaintiff has failed to state facts showing that Defendants

Runion, Rogers, Guthrie, and Griffie had any personal involvement in the alleged constitutional

violations. Accordingly, Plaintiff’s claims against Defendants Runion, Rogers, Guthrie, and

Griffie should be dismissed without prejudice.

IV. CONCLUSION

For the above-discussed reasons, the Court finds that some of Plaintiff’s claims must be

dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. §

1915(e)(2)(B)(i-ii) (providing that an in forma pauperis action, or any portion of it, may be

dismissed at any time due to frivolousness or for failure to state a claim).

Accordingly, Plaintiff’s first and third claims are hereby DISMISSED WITHOUT

PREJUDICE as to all Defendants. Plaintiff’s second claim is DISMISSED WITHOUT

PREJUDICE with respect to the individual capacity claims against Defendant Police Chief Bob

Harrison and with respect to all official capacity claims. The Clerk of Court is directed to

terminate Police Chief Bob Harrison from this action. Furthermore, Plaintiff’s claims against

Defendants Sherriff Jackie Runyon; Sergeant D. Rogers; Sergeant J. Guthrie; and Sergeant Griffie

are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to terminate

Defendants Runyon, Rogers, Guthrie, and Griffie from this action.

Plaintiff’s sole remaining claim is the individual capacity claim against Patrol Officer

“John Doe” for cruel and unusual punishment. Plaintiff is directed to amend his complaint

within thirty (30) days to include the John Doe Defendant’s real name for service. Failure

to comply with this order shall result in the dismissal of this action.

IT IS SO ORDERED, this 8th day of November, 2019.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge