Gregory v. Wilson et al
ORDER granting 17 Defendant's Motion to Dismiss. Pursuant to the judgment entered together with this order, this action is DISMISSED WITH PREJUDICE. Signed by Judge Susan Webber Wright on 10/15/2012. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JAMES C. GREGORY
STATE OF ARKANSAS, ET AL.
NO: 3:12CV00201 SWW
Plaintiff James C. Gregory, proceeding pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983 against state and municipal employees, sued in their official capacities
only. Before the Court is the State’s motion to dismiss (docket entries #17, #18). The time for
responding has passed, and Plaintiff has not filed a response. After careful consideration, and for
reasons that follow, the State’s motion will be granted, and all remaining claims will be
dismissed pursuant to 28 U.S.C. § 1915(e)(2).
Plaintiff sues Ralph Wilson, Jr., in his official capacity as Circuit Judge of the Second
Judicial Circuit of Arkansas; Curtis Walker and Melanie Alsworth, in their official capacities as
deputy prosecuting attorneys for Mississippi, Arkansas; Scott Adams, in his official capacity as a
police officer for the City of Blytheville; and Ross Thompson, in his official capacity as the
Chief of Police for the City of Blytheville.
Although the complaint allegations are far from clear, they indicate that Plaintiff was
arrested for terroristic threatening and confined in jail for seventy-two days. It also appears that
the charges against Plaintiff never proceeded to a jury trial.
Plaintiff charges that Defendant Wilson denied him the right to a jury trial, failed to rule
on his motions, and ordered him to sit down. Plaintiff also claims that Defendants Walker and
Alsworth dropped the charges against him and denied him a jury trial. Plaintiff charges that
Defendant Adams “filed reports of the incident but lied about the dates,” and Defendant
Thompson searched his house and took property that has not been returned. By way of relief,
Plaintiff seeks compensatory and punitive damages against each Defendant.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all facts alleged in the
complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04
(8th Cir. 1997). The complaint should be reviewed in the light most favorable to the plaintiff,
McMorrow v. Little, 109 F.3d 432, 434 (8th Cir. 1997), and should not be dismissed if there are
pled “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1974 (2007). A complaint cannot, however, simply leave open the
possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.
Id. at 1968. Rather, the facts set forth in the complaint must be sufficient to nudge the claims
“across the line from the conceivable to plausible.” Id. at 1974.
Under the law of this Circuit, “in order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it
will be assumed that the defendant is sued only in his or her official capacity.” Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citations omitted); see also Egerdahl
v. Hibbing Comm. College, 72 F.3d 615, 619 (8th Cir.1995). In this case, Plaintiff sues each
defendant in his or her official capacity only. Accordingly, Plaintiff’s claim against Defendants
Wilson, Walker, and Alsworth are claims against the State, and his claims against Defendants
Adams and Thompson are claims against the City.
The State asserts several grounds for dismissal, including judicial and prosecutorial
immunity and sovereign immunity. Because Plaintiff sues Defendants in their official capacities
only, the doctrines of judicial and prosecutorial immunity are inapplicable. See VanHorn v.
Oelschlager, 502 F.3d 775, 779 (8th Cir. 2007)(quoting Kentucky v. Graham, 473 U.S. 159, 167,
105 S.Ct. 3099(1985))(“[t]he only immunities that can be claimed in an official-capacity action
are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh
The doctrine of sovereign immunity, also known as Eleventh Amendment immunity,1
shields a state from suit in federal court unless Congress has abrogated the state’s immunity or
the state consents to suit or waives its immunity. See Edleman v. Jordan, 415 U.S. 651, 663
(1974); Murphy v. Arkansas, 127 F.3d 750, 754 (1997). The State has not consented to suit or
waived its immunity, and Congress did not abrogate the States’ sovereign immunity when it
enacted 42 U.S.C. § 1983. See Burk v. Beene, 948 F.2d 489, 492-93 (8th Cir. 1991). The Court
The term “Eleventh Amendment immunity” is somewhat of a misnomer. The States’
immunity from suit existed long before ratification of the Constitution, and it neither derives
from or is limited by the Eleventh Amendment. “The Eleventh Amendment confirmed, rather
than established, sovereign immunity as a constitutional principle; it follows that the scope of the
States’ immunity from suit is demarcated not by the text of the Amendment alone but by
fundamental postulates implicit in the constitutional design.” Alden v. Maine, 119 S. Ct. 2240,
finds that Plaintiff’s claims against the State, which include only claims for monetary damages,
are barred under the doctrine of sovereign immunity.
The City has not joined in the motion to dismiss. However, the federal statue governing
in forma pauperis proceedings provides that a court shall dismiss a case at any time if the court
determines that the action is frivolous or malicious or fails to state a claim upon which relief may
be granted. See 28 U.S.C. § 1915(e)(2). In this case, the Court finds that Plaintiff’s claims
against Adams and Scott in their official capacity, which are claims against the City, are legally
frivolous2 and otherwise fail to state a claim on which relief may be granted.
It is well settled that a plaintiff may establish municipal liability under § 1983 by
proving that his constitutional rights were violated by an “action pursuant to official municipal
policy” or misconduct so pervasive among non-policymaking employees of the municipality “as
to constitute a ‘custom or usage’ with the force of law.” Ware v. Jackson County, Mo., 150 F.3d
873, 880 (8th Cir. 1998)(quoting Monell v. Dep't of Social Servs. of the City of New York, 436
U.S. 658, 691 (1978)).3 The complaint is void of a single allegation demonstrating any basis for
A complaint is frivolous where it lacks an arguable basis either in law or fact. See
Neitzke v. Williams, 490 U.S. 319, 325-27 (1989).
“Official policy involves ‘a deliberate choice to follow a course of action . . . made from
among various alternatives’ by an official who [is determined by state law to have] the final
authority to establish governmental policy.” Ware v. Jackson County, Mo., 150 F.3d 873, 880
(8th Cir. 1998)(quoting Jane Doe A. v. Special Sch. Dist, 901 F.2d at 642, 645 (8th Cir. 1990)).
Alternatively, “custom or usage” is demonstrated by: (1) the existence of continuing,
widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s
employees; (2) deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that misconduct; and
(3) the plaintiff’s injury by acts pursuant to the governmental entity’s custom, i.e., proof that the
custom was the moving force behind the constitutional violation. Id. (quoting Jane Doe A., 901
F.2d at 646).
municipal liability. Accordingly, the Court finds that claims against the City should be
dismissed with prejudice.
For the reasons stated, the State’s motion to dismiss (docket entry #17) is GRANTED,
and the remaining claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2). Pursuant to the
judgment entered together with this order, this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED THIS 15TH DAY OF OCTOBER, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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