Opinion

Ashford v. Kingdom

Court
District Court, E.D. Arkansas
Filed
Oct 21, 2024
Cited by
0 cases
Authority
More cited than 33.4%

The opinion

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

CHARLES ASHFORD, PLAINTIFF

ADC # 133975

v. 4:24CV00900-BSM-JTK

FREDRICK R. KINGDOM, JR., et al. DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATIONS

INSTRUCTIONS

The following recommended disposition (“Recommendation”) has been sent to United

States District Judge Brian S. Miller. Any party 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 objections; 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

I. INTRODUCTION

Charles Ashford (“Plaintiff”) is in custody at the Varner Unit of the Arkansas Division of

Correction. He filed this pro se civil rights action pursuant to 42 U.S.C. ' 1983. (Doc. No. 2).

Although Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.

' 1915(a) (Doc. No. 1), Plaintiff’s IFP Motion should be denied because Plaintiff is a “three

striker” under the Prison Litigation Reform Act (“PLRA”) and, as set out below, has not

established imminent danger.

II. SCREENING

The Court is required to screen prisoner complaints seeking relief against a governmental

entity or officer or employee of a governmental entity. 28 U.S.C. '1915A(a).1 Additionally, the

PLRA, 28 U.S.C. ' 1915(g), provides that:

[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section if the prisoner has, on three (3) or more prior

occasions, while incarcerated or detained in any facility, brought an action or appeal

in a court of the United States that was dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted, unless the

prisoner is under imminent danger of serious physical injury.

Plaintiff has had at least three complaints dismissed for failure to state a claim.2 The Court finds

1 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims

that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be

granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915A(b). An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). Whether a plaintiff is represented by counsel or is

appearing pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v.

Sargent, 780 F .2d 1334, 1337 (8th Cir.1985). An action fails to state a claim upon which relief

can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a pro se

complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal

construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all

factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.

Hernandez, 504 U.S. 25, 32 (1992).

Additionally, to survive a court’s screening, a complaint must contain sufficient factual

matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 570. A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556-7. The plausibility

standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that

a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with”

a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement

to relief.” Id.

2 Ashford v. Whaley, 5:09cv00086-JLH (E.D. Ark.) (dismissed for failure to state a claim

on April 16, 2009) (no appeal filed); Ashford v. Washington, 5:09cv00224-JLH (E.D. Ark.)

(dismissed for failure to state a claim on September 16, 2009) (no appeal filed); Ashford v. Rucker,

5:09cv00202-SWW (E.D. Ark.) (dismissed for failure to state a claim on September 24, 2009) (no

that Plaintiff is a “three-striker” within the meaning of the PLRA. Gonzalez v. United States,

23 F. 4th 788, 789-91 (8th Cir. 2022).

Still, Plaintiff may be permitted to proceed in forma pauperis if he falls under the

“imminent danger” exception to the three strikes rule set forth above. 28 U.S.C. '1915(g). This

exception does not apply to allegations of past danger, and the alleged harm must be “real and

proximate” and occurring at the time the complaint is filed. Lewis v. Sullivan, 279 F.3d 526, 531

(7th Cir. 2002). In the Eighth Circuit, the exception does not apply unless the plaintiff alleges

“specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048,

1050 (8th Cir. 2003).

Plaintiff sued Corporal Fredrick R. Kingdom, Jr. and an official of Advance Recovery

Consultant (“Advance”) located in San Diego, California. (Doc. No. 2). Plaintiff alleges that on

September 21, 2024, Defendant Kingdom, who was assigned to 2 barracks, “called [Plaintiff] out.”

(Id. at 1). Plaintiff “adhered to a unknown visit with the presence of unknown Advance head

guy or lady when he noticed suspicious activity.” (Id.) Plaintiff “got a response” about an “owed

bank statement” outstanding balance of $8,279.04. (Id.). Plaintiff informed Defendant

Kingdom about the problem, but Defendant Kingdom just shrugged his shoulders. (Id.). The

Advance official then slammed Plaintiff’s face into the steel bars. (Id.). Plaintiff stumbled off

and was stabbed by a white inmate while Defendant Kingdom held Plaintiff “allowing the harm to

paralyze [Plaintiff].” (Doc. No 2 at 1-2). Plaintiff asked Defendant Kingdom “why and

Kingdom stated ‘our Advance head staff needed us to mob you punk a** b***h its how we make

appeal filed).

punks like you pay the Varner Unit price.’” (Id. at 2). Kingdom then wrote Plaintiff a false

disciplinary. (Id.). Two weeks later Defendant Kingdom told Plaintiff “in the future Advance

head staff told me to mob you punk when you get out and released to general population.” (Id.).

Plaintiff alleges that Advance is a state actor through its conspiracy with Defendant Kingdom.

(Id.). Plaintiff asserts Defendants violated his Eighth Amendment rights. (Id. at 3).

Plaintiff seeks compensatory damages of $8,279.04, punitive damages, and injunctive

relief. (Doc. No. 2 at 3).

As the Supreme Court of the United States explained, “a court may dismiss a claim as

factually frivolous only if the facts alleged are ‘clearly baseless,’ . . . a category encompassing

allegations that are ‘fanciful,’ . . . ‘fantastic,’ . . . and ‘delusional.’” Denton v Hernandez, 504

U.S. 25, 32–33 (1992) (internal citations omitted). “[A] finding of factual frivolousness is

appropriate when the facts alleged rise to the level of the irrational or the wholly incredible . . . .”

(Id.)

On September 19, 2024, Plaintiff filed Ashford v. Advance Recovery Consultant, 4:24-cv-

00781-BRW (E.D. Ark.). Plaintiff’s statement of claim in that case reads, in relevant part:

Plaintiff remembers in December 2nd 2023 he received a bank statement from two

San Diego Companies Advance Recovery Consultant and Affiliate Commercial

Bank at the Pulaski County Jail before being admitted to ADC Varner state prison

unit. Around February 15, 2024 Plaintiff Charles received a visit held in Pulaski

Jail and was unusual unscheduled. A verbal statement initially was given to

Plaintiff ‘Hi I’m from Advance and by our policy my name can’t be given so in

refusing it.’

Plaintiff was showed a high lighted paragraph and it read ‘our records indicate an

outstanding balance owed to Charles Ashford in the amount of $8,279.04 from

Affiliate Commercial Bank.’ After Plaintiff requested his money so he could

afford commissary food items both from jail and prison unknown Advance Head

official upon day shift a quarter to 4:30 p.m. instead stated ‘F**k you n***a a**

boy we ain’t obligated to give you s**t we’ll kill you for it.’ Next Plaintiff stood

up fencin’ to leave from being snitched out and when Advance grab hugged

Plaintiff painfully and smashed his forehead in the floor causing scratched up and

down burns and broken flesh imminently physically threaten Plaintiff life.

Plaintiff Charles felt badly misused afraid of future unable to pay hateful

circumstance while incarcerated that puts him at a death risk of begging and debtful

problems so Plaintiff rewrote Advance desperately. In May 17, 2024 upon day

shift approx.. 2 p.m. almost the same as that initial February incident on Sergeant

unknown and name refused working D-Davis unit brks Plaintiff suffered another

vicious attack. By Advance same person as before stated ‘what the f**k ya b***h

a** want we the Advance tired of nit wits like ya Charles ya reminds us of our other

inmate from Pulaski Jail we suckered out of money and racistly laughed at Plaintiff

about it. Plaintiff again was fenna leave and Advance grabbed the back of his head

and slammed his two fists into the brick walls and made em knot and bloody,

choking Plaintiff breathless for nearly 20 minutes! No Grievance was available to

resolve.

This is Plaintiff Charles Ashford’s claim he was imminently life endangered from

that excessive force applied, and ripped off out of several dollars for no reason with

unrecovered fees major conspiracy. That violated Plaintiff’s 8th Amendment law!

Id. at 1-3.

In the case at hand, Plaintiff alleges an official from Advance Recovery Consultant—

located in San Diego, California—visited him at the Tucker Unit after an Advance official visited

Plaintiff when he was incarcerated in the Pulaski County Jail. The Advance official allegedly

assaulted Plaintiff in the Varner Unit, just as an Advance official assaulted Plaintiff when Plaintiff

was in the Pulaski County Jail. Plaintiff also alleged conspiracy in connection with each incident.

The Court finds that Plaintiff’s allegations are ‘fanciful,’ . . . ‘fantastic,’ . . . and ‘delusional.’”

Denton, 504 U.S. at 32–33. That an official from a company would visit Plaintiff inside both the

Pulaski County Jail and the ADC, engage in a conspiracy both times, and assault Plaintiff both

times is incredible. As a result, the Court further finds that Plaintiff’s allegations do not support

a finding of “ongoing serious physical injury, or of a pattern of misconduct evidencing the

likelihood of imminent serious physical injury.” Martin, 319 F.3d at 1050. As such, Plaintiff’s

Complaint should be dismissed without prejudice pending payment of the $405.00 filing and

administrative fee.

I. CONCLUSION

IT IS, THEREFORE, RECOMMENDED that:

1. Plaintiff's IFP Motion (Doc. No. 1) be DENIED;

2. Plaintiff's Complaint be DISMISSED without prejudice;

3. If Plaintiff wishes to continue this case, he be required to submit the statutory filing

and administrative fee of $405.00 to the Clerk, noting the above case style and number, within

fifteen (15) days of the date of this Order, together with a motion to reopen the case. Upon receipt

of the motion and full payment, the case will be reopened.

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

appeal from any Order adopting these recommendations and the accompanying Judgment would

not be taken in good faith.

Dated this 21“ day of October, 2024.

JEROME T. KEARNEY

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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