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)

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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)

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