Long v. Elkhart City of et al
Filing
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OPINION AND ORDER re 9 AMENDED COMPLAINT against Elkhart City of and Jason Ray filed by Plaintiff Marvin Edward Long. Plaintiff GRANTED leave to proceed against Defendant Officer Jason Ray as outlined in Order. All other claims are DISMISSED. Defen dant City of Elkhart DISMISSED. Clerk and United States Marshal's Service DIRECTED to issue and serve process on Defendant Officer Jason Ray with a copy of this Order and the Amended Complaint. Defendant Officer Jason Ray ORDERED to respond as outlined in Order. Signed by Judge Rudy Lozano on 4/18/17. (Copy mailed to pro se party).(cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARVIN EDWARD LONG,
Plaintiff,
vs.
CITY OF ELKHART, and
JASON RAY,
Defendants.
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CAUSE NO. 3:16-CV-846
OPINION AND ORDER
This matter is before the Court on the Amended Complaint filed
by Marvin Edward Long, a pro se prisoner, on January 3, 2017. For
the reasons set forth below, the Court: (1) GRANTS Marvin Edward
Long leave to proceed against Officer Jason Ray in his individual
capacity for compensatory and punitive damages for using excessive
force against him by allowing his police dog to bite Long on
October 20, 2016, in violation of the Fourth Amendment; (2)
DISMISSES all other claims; (3) DISMISSES the City of Elkhart; (4)
DIRECTS the clerk and the United States Marshals Service to issue
and serve process on Officer Jason Ray with a copy of this order
and the amended complaint (DE 9) as required by 28 U.S.C. §
1915(d); and (5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that
Officer Jason Ray respond, as provided for in the Federal Rules of
Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claim for
which the plaintiff has been granted leave to proceed in this
screening order.
DISCUSSION
Long alleges that Jason Ray used excessive force against him
when Ray’s police dog bit him while he was being arrested on
October 20, 2016. “A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation marks and citations omitted). Nevertheless, pursuant to
28 U.S.C. § 1915A, the court must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief.
“In order to state a claim under § 1983 a plaintiff must allege:
(1) that defendants deprived him of a federal constitutional right;
and (2) that the defendants acted under color of state law.” Savory
v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
Long alleges that while hiding from the police in a cornfield
by a county road, Officer Ray’s police dog saw him lying prone
with his hands out in front of him about 50 feet away.
Jason Ray, his K9, and the other officers ran up to me
screaming don’t move. I didn’t move. When they got close
enough to me the K9 started his attack biting me on the
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right hand,
shoulder.
right
forearm,
right
upper
arm,
and
DE 9 at 2.
“A claim that an officer employed excessive force in arresting
a person is evaluated under the Fourth Amendment’s objectivereasonableness standard.” Abbott v. Sangamon Cty., Ill., 705 F.3d
706,
724
(7th
Cir.
2013).
The
question
in
Fourth
Amendment
excessive use of force cases is “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). “The test
of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application,” Bell v. Wolfish,
441 U.S. 520, 559 (1979), the question is “whether the totality of
the circumstances” justifies the officers’ actions. Graham at 396.
Though Officer Ray may have been justified in having his
police
dog
attack
Long,
based
on
the
facts
alleged
in
the
complaint, it is unclear why he did so. Therefore Long will be
granted leave to proceed against Officer Ray in his individual
capacity.
Long also sues the City of Elkhart. However he does not name
the city in the body of his complaint nor give any indication why
he believes it should be financially liable to him based on these
events. Though Officer Ray was employed by the City of Elkhart,
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there is no general respondeat superior liability under 42 U.S.C.
§ 1983. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).
Therefore the city will be dismissed.
CONCLUSION
For the reasons set forth above, the court: (1) GRANTS Marvin
Edward Long leave to proceed against Officer Jason Ray in his
individual capacity for compensatory and punitive damages for
using excessive force against him by allowing his police dog to
bite
Long
on
October
20,
2016,
in
violation
of
the
Fourth
Amendment; (2) DISMISSES all other claims; (3) DISMISSES the City
of Elkhart; (4) DIRECTS the clerk and the United States Marshals
Service to issue and serve process on Officer Jason Ray with a
copy of this order and the amended complaint (DE 9) as required by
28 U.S.C. § 1915(d); and (5) ORDERS, pursuant to 42 U.S.C. §
1997e(g)(2), that Officer Jason Ray respond, as provided for in
the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b),
only to the claim for which the plaintiff has been granted leave
to proceed in this screening order.
DATED: April 18, 2017
/s/RUDY LOZANO, Judge
United States District Court
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