Whaley v. Iowa, State of et al

Filing 10

ORDER granting 7 and 8 Motions to Dismiss. See Order text for details. Signed by Judge Linda R Reade on 12/12/2018. (Order/NEF to Pltf) (mmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LARRY DONELL WHALEY.
Plaintiff,

No. C17-3077-LRR
ORDER

vs.
CERRO GORDO COUNTY JAIL,
DOUGLAS HAMMERAND, and
STATE OF IOWA,
Defendants.
____________________________

This matter is before the court pursuant to defendants’ motions to dismiss (docket
nos. 7 and 8).
Plaintiff Larry Whaley filed this 42 U.S.C. § 1983 case on September 25, 2017.
In his complaint, he alleged racial discrimination, improper prosecution and that he had
been refused medical care. (See docket no. 1 at 4). On March 7, 2018, the court denied
his motion to appoint counsel, but directed the clerk’s office to serve the complaint via
certified mail.1 On April 9, 2018, defendants Douglas Hammerand and State of Iowa
filed a Federal Rule of Civil Procedure 12(b) motion to dismiss (docket no. 7). On April
11, 2018, defendant Cerro Gordo County Jail also filed a Federal Rule of Civil Procedure
12(b) motion to dismiss (docket no. 8). Whaley did not file a resistance, and his time to
do so ended in April. See Local Rule 7(e).
In their motion, defendants State of Iowa and Douglas Hammerand argue that
Whaley’s claim against the State of Iowa fails as matter of law pursuant to Will v.

1

Plaintiff paid the filing fee and did not apply to proceed in forma pauperis.

Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). They also argue that Whaley
failed to make any specific allegations against Douglas Hammerand, and even if Whaley
had made an allegation, Hammerand is entitled to prosecutorial immunity. Defendant
Cerro Gordo County Jail argues Whaley’s claims are too vague, and, alternately, he
failed to exhaust his administrative remedies.
Defendants’ motions must be granted for a number of reasons. First, Whaley has
failed to file a resistance.
Rule7(f).2

Accordingly, dismissal is appropriate pursuant to Local

Additionally, each defendant makes at least one dispositive argument.

Whaley’s claim against the State of Iowa fails because the State of Iowa is not a person
within the meaning of 42 U.S.C. § 1983. See Will, 491 U.S. at 66. Accordingly, the
State of Iowa must be dismissed from the case. Defendant Hammerand is correct that
nothing in Whaley’s complaint or supplement makes any allegation against him.
Accordingly, Hammerand’s motion must be granted. Finally, there is no evidence that
Whaley exhausted his administrative remedies as to his claims against the Cerro Gordo
County Jail.3 Accordingly, Cerro Gordo County Jail must be dismissed from this case
pursuant to 42 U.S.C. § 1997e(a), which states:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.

2

The court notes that in at least one prior case, the Eighth Circuit Court of Appeals has
refused to allow a dismissal based solely on the Northern District of Iowa’s Local Rule 7. See
Maxwell v. Linn Cty. Corr. Ctr., 310 F. App'x 49, 49 (8th Cir. 2009). However, in that case,
the plaintiff filed a resistance, it was simply late. (See C07-0018-LRR, docket nos. 15, 19, 21
and 26). The present case is distinguishable as Whaley’s time to file a resistance expired more
than six months ago and he has failed to contact the court in any way during that period.
3

In fact, Whaley admitted in his complaint he failed to follow the grievance procedure.
(docket no. 1 at 2).

2

Accordingly, defendants’ motions to dismiss (docket nos. 7 and 8) are granted
and this case is dismissed.
IT IS SO ORDERED.
DATED this 12th day of December, 2018.

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