# Basham v. Conkleton

> District Court, W.D. Arkansas · November 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10010308

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** November 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10010308. Public record. Not legal advice.