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Andre McEwing v. Shores, 15-1372 (2016)

Court: Court of Appeals for the Eighth Circuit Number: 15-1372 Visitors: 35
Filed: May 12, 2016
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 15-1372 _ Andre Deon McEwing lllllllllllllllllllll Plaintiff - Appellant v. Shores, Lieutenant, Varner Unit, Arkansas Department of Correction; Robert Hutcheson, Sergeant, Varner Unit, Arkansas Department of Correction; Cockrell, Sergeant, Varner Unit, Arkansas Department of Correction; Hayes, Sergeant, Varner Unit, Arkansas Department of Correction; J. Byers, Major, Varner Unit, Arkansas Department of Correction; James Plummer, Sergean
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                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-1372
                       ___________________________

                              Andre Deon McEwing

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

  Shores, Lieutenant, Varner Unit, Arkansas Department of Correction; Robert
Hutcheson, Sergeant, Varner Unit, Arkansas Department of Correction; Cockrell,
  Sergeant, Varner Unit, Arkansas Department of Correction; Hayes, Sergeant,
 Varner Unit, Arkansas Department of Correction; J. Byers, Major, Varner Unit,
  Arkansas Department of Correction; James Plummer, Sergeant, Varner Unit,
  Arkansas Department of Correction; J. Price, Property Officer, Varner Unit,
  Arkansas Department of Correction; Newton, Nurse, Varner Unit, Arkansas
                           Department of Correction

                     lllllllllllllllllllll Defendants - Appellees

       M. Rowe, Nurse, Varner Unit, Arkansas Department of Correction

                            lllllllllllllllllllll Defendant

 Floria Washington, Sergeant, Varner Unit, Arkansas Department of Correction;
   Tonda Spencer, Sergeant, Varner Unit, Arkansas Department of Correction;
    Minnie Drayer, Administrative Disciplinary Judge, Varner Unit, Arkansas
    Department of Correction; J. Banks, Unit Warden, Varner Unit, Arkansas
     Department of Correction; Benny Moore, CO II, Varner Unit, Arkansas
Department of Correction; Mark Allen, CO II, Varner Unit, Arkansas Department
    of Correction; Derrick Jones, CO II, Varner Unit, Arkansas Department of
   Correction; Stephen Poe, Sgt.; Patricia Cooley, Sgt., Varner Unit, Arkansas
Department of Correction; Stevens, Captain, Varner Unit, Arkansas Department of
      Correction; Johnson, Lieutenant, Varner Unit, Arkansas Department of
  Correction; S. Byers, Nurse, Varner Unit, Arkansas Department of Correction;
       Gene Carol Ables, Varner Unit, Arkansas Department of Correction

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                             Submitted: April 14, 2016
                               Filed: May 12, 2016
                                  [Unpublished]
                                  ____________

Before LOKEN, BYE, and KELLY, Circuit Judges.
                           ____________

PER CURIAM.

       Arkansas inmate Andrew Deon McEwing appeals the district court’s1 dismissal
of his 42 U.S.C. § 1983 action following an evidentiary hearing. We agree with the
district court that McEwing failed to establish Eighth Amendment violations–either
the use of excessive force or deliberate indifference to his serious medical needs–by
the Arkansas Department of Correction defendants. See Johnson v. Bi-State Justice
Ctr., 
12 F.3d 133
, 135-36 (8th Cir. 1993) (where both sides present evidence in
evidentiary hearing so that procedure resembles summary judgment motion with live
evidence, standard is whether evidence is so one-sided that one party prevails as
matter of law, or presents sufficient disagreement to require submission to jury). In
McEwing’s opening brief, he does not challenge the dismissal of nurses Newton,

      1
       The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Joe
J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas.

                                          -2-
S. Byers, and Gene Ables for failure to exhaust administrative remedies, and we
decline to consider the challenge to their dismissals that he raises for the first time in
his reply brief. See Martin v. Am. Airlines, 
390 F.3d 601
, 608 n.4 (8th Cir. 2004).2
The judgment of the district court is affirmed. See 8th Cir. R. 47B.
                        ______________________________




      2
       McEwing has abandoned some claims and issues. See Hess v. Ables, 
714 F.3d 1048
, 1051 n.2 (8th Cir. 2013) (claim waived where appellant failed to brief court on
why dismissal was improper); Rotskoff v. Cooley, 
438 F.3d 852
, 854-55 (8th Cir.
2006) (undeveloped issue is waived).

                                           -3-

Source:  CourtListener

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