Andre McEwing v. Shores

639 F. App'x 401

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 12, 2016
• Docket: 15-1372
• Status: Unpublished

Opinion

PER CURIAM.

Arkansas inmate Andrew Deon McEw-ing appeals the district court’s 1 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 open ing brief, he does not challenge the dismissal of nurses Newton, S. Byers, and Gene Abies 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.

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 . 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).