Norman v. Lewis

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

DARREN LEE NORMAN PLAINTIFF

v. Civil No. 3:17-CV-03069

SHERIFF JOHN MONTGOMERY;

JAIL ADMINISTRATOR BRAD LEWIS;

SGT. ERIC NEAL; et al. DEFENDANTS

OPINION AND ORDER_.

The instant matter is a civil rights action filed by the Plaintiff, Darren Lee Norman,

pursuant to 42 U.S.C. § 1983. Before the Court is Separate Defendant Sheriff John

Montgomery’s Motion to Dismiss. (ECF No. 15).

|. BACKGROUND

Plaintiff filed his Complaint on August 17, 2017, proceeding pro se and in forma

pauperis. (ECF No. 2). An Amended Complaint was filed on September 26, 2017. (ECF

No. 9). Plaintiff alleges a delay of medical care and excessive use of force while he was

incarcerated at the Baxter County Detention Center. (ECF No. 9).

Separate Defendant Montgomery argues that Plaintiff's Complaint fails to allege

any actionable wrongdoing against him either in his personal or official capacity and that

the Complaint should be dismissed against him. The Plaintiff has not responded to the

Separate Defendant's motion.

ll. LEGAL STANDARD

Rule 8(a) contains the general pleading rules and requires a complaint to present

“a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). “In order to meet this standard, and survive a motion to dismiss

under Rule 12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc.,

588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotations omitted)). “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.” Ashcroft, 556 U.S. at 678. While the Court will

liberally construe a pro se olaintiffs complaint, the plaintiff must allege sufficient facts to

support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

Ill. DISCUSSION

Here, the Plaintiff has sued Separate Defendant Montgomery in both his personal

and official capacities. Clearly, the Plaintiff has not set forth a claim against Separate

Defendant Montgomery in his personal capacity because he has not pleaded facts

suggesting that Separate Defendant Montgomery was personally involved in the alleged

delay of medical care and excessive use of force. See Ashcroft v. Iqbal, 556 U.S. 662, -

676 (2009) (“a plaintiff must plead that each Government-official defendant, through the

officials own individual actions, has violated the Constitution’).

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). A Plaintiff “seeking to impose liability on a municipality under § 1983 [must] identify

[an unconstitutional] policy or custom that caused the plaintiff's injury.” Board of Cnty.

‘Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). “There are two basic

circumstances under which municipal liability will attach: (1) where a particular municipal

policy or custom itself violates federal law, or’directs an employee to do so; and (2) where

a facially lawful municipal policy or custom was adopted with ‘deliberate indifference’ to

its known or obvious consequences.” Moyle v. Anderson, 571 F.3d 814, 817-18 (8th Cir.

2009).

Plaintiff has not pointed to “any officially accepted guiding principle or procedure

that was constitutionally inadequate” and has not pointed to a “deliberate choice of a

guiding principle or procedure made by the municipal official who has final authority

regarding such matters.” Jenkins v. Cnty. of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009)

(quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)).

Further, “a custom can be shown only by adducing evidence of a continuing,

widespread, persistent pattern of unconstitutional misconduct.” /d. at 634 (internal

quotation marks and citation omitted). Plaintiff has simply not asserted facts sufficient to

state a plausible claim that there was any widespread, persistent pattern of

unconstitutional conduct.

IV. CONCLUSION

For the reasons set forth above, the Court finds that the Separate Defendant

Sheriff John Montgomery's Motion to Dismiss (ECF No. 15) should be, and hereby is

GRANTED and Plaintiffs complaint is DISMISSED WITHOUT PREJUDICE WITH

RESPECT TO ALL CLAIMS AGAINST SEPARATE DEFENDANT MONTGOMERY.

IT IS SO ORDERED on this qe day of December 2017.

GK

UMTED STATES DISTRICT JUDGE