Berry v. Davis et al

Filing 19

ORDER granting 17 Motion to Dismiss, and Plaintiff's claims against Separate Defendants are dismissed with prejudice. Plaintiff's claims against Brandon Davis, individually, and the City of Fort Smith, Arkansas, remain. Signed by Honorable Robert T. Dawson on June 3, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CONNIE BERRY, Individually
and as Administrator of the
ESTATE OF ERIC W. BERRY
v.

PLAINTIFF

Case No. 12-2269

BRANDON DAVIS, Individually;
THE CITY OF FORT SMITH, ARKANSAS;
THE CITY OF FORT SMITH BOARD OF
DIRECTORS; and THE CITY OF FORT
SMITH, ARKANSAS POLICE DEPARTMENT

DEFENDANTS

ORDER
Now

before

the

Court

are

the

Motion

to

Dismiss

and

supporting brief (docs. 17-18) filed by Separate Defendants The
City of Fort Smith Board of Directors and The City of Fort
Smith, Arkansas Police Department.

Separate Defendants contend

they were not involved in the death of Eric Berry and are not
entities capable of being sued and should be dismissed from this
suit.

Further, that the naming of these Separate Defendants is

superfluous as the City of Fort Smith is a defendant.

Plaintiff

failed to file a timely response to the motion.
The Eighth Circuit has held that dismissal of a police
department is proper in a § 1983 action because a police
department is only a “subdivision of the City” and, therefore,
not a “jurisdictional [entity] suable as such.”

Ketchum v. City

of West Memphis, 974 F.2d 81, 82 (8th Cir. 1992).

Accordingly,

the motion (doc. 17) is GRANTED and Plaintiff’s claims against

AO72A
(Rev. 8/82)

Separate Defendants are DISMISSED WITH PREJUDICE.

Plaintiff’s

claims against Brandon Davis, individually, and the City of Fort
Smith, Arkansas, remain.
IT IS SO ORDERED this 3rd day of June 2013.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge

2

AO72A
(Rev. 8/82)