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MORTON v. CITY OF LITTLE ROCK

December 26, 1989

CURTIS MORTON, PLAINTIFF
v.
CITY OF LITTLE ROCK, PHILLIP WILSON and RONNIE GATEWOOD, Individually and in their Official Capacities, DEFENDANTS



The opinion of the court was delivered by: ROY

 Before the Court is the defendants' Motion to Dismiss, which will be treated as a Motion for Summary Judgment. A brief history of the pleadings in this case is necessary.

 On February 22, 1989, the plaintiff filed a complaint against the Little Rock Municipal Court, Little Rock Police Department, Phillip Wilson, Marge Manning and Ronnie L. Gatewood, individually and in their official capacities. The plaintiff raised claims pursuant to 42 U.S.C. § 1983 and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

 In his original complaint, plaintiff contended that on or about February 24, 1986, Phillip Wilson, Michelle Boyd, and Marge Manning released court records or police records or both to Lee Brockway, a reporter for the Benton Courier newspaper, indicating that plaintiff had been arrested and charged with a crime or crimes. Plaintiff contended that all of these documents were private and protected from general release pursuant to a properly entered order of expungement dated March 2, 1982, and that as a proximate result of defendant's action, the Benton Courier took an editorial position against the plaintiff describing him as unfit to serve as sheriff due to the information contained on the records. Plaintiff stated that due to the negative publicity, which was based upon the released information, he lost the campaign for sheriff, that his business as a private investigator has suffered, and that his reputation has suffered. Subsequent to the filing of two motions to dismiss, plaintiff was granted leave to amend his complaint. By allowing the amendment, the issues raised in the motions to dismiss were resolved.

 In the amended complaint filed June 5, 1989, plaintiff asserts basically the same causes of action against the City of Little Rock, Phillip Wilson and Ronnie Gatewood, individually and in their official capacities. On June 15, defendants filed a motion to dismiss and on June 16, 1989 defendants filed an amended motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). On July 17, 1989, approximately thirty days after the Motion to Dismiss was filed, the plaintiff filed a Motion for Extension of Time to Respond. On July 21, 1989, the defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). On July 24, 1989, the Court directed the plaintiff to advise the Court by July 31, 1989 as to the reasons for filing his late motion for extension of time. Plaintiff failed to so advise the Court. Instead, on August 15, 1989, plaintiff filed a response to the defendant's motion to dismiss. The defendants filed a motion to strike the response based upon its untimeliness. On September 25, 1989, the Court entered an Order stating that the motions to dismiss would be treated as a motion for summary judgment, denying the motion to strike, and directing the parties to file a statement of material facts as required by Local Rule 29(a). Both parties have filed their statements, and the court is now ready to rule on the motions.

 Defendants first contend that the cause of action against the City and Phillip Wilson is barred by the statute of limitations. In his amended complaint, plaintiff states that the information was released on or about February 24, 1986. In response to the motion, he states that it was released on or about February 21, 1986. The original complaint was filed on February 22, 1989, and the amended complaint was filed on June 5, 1989.

 The applicable statute of limitations for § 1983 actions in Arkansas is three (3) years. Lyons v. Goodson, 787 F.2d 411 (8th Cir. 1986). The defendant City of Little Rock was not a named defendant until the filing of the amended complaint on June 5, 1989. Therefore, the only way the cause of action would not be time-barred against the City would be if the amendment related back pursuant to Fed.R.Civ.P. 15(c). Rule 15(c) allows relation back of the amended complaint if the party brought in by amendment,

 
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and
 
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

 Although the City may have known at least as early as August 25, 1987 that plaintiff intended to bring suit against the City, no factual allegations against the City are contained in the original complaint or amended complaint. In fact, in the original complaint, the plaintiff relied on the wrong Arkansas statute as the essential basis for the entire complaint. It is therefore doubtful that the City received sufficient notice of the action or had the requisite knowledge required by Rule 15(c). Even if the Court were to hold otherwise, the Court finds that the City should nevertheless be dismissed from the lawsuit for other reasons. The Eighth Circuit has held that a municipality should be dismissed if the municipality is added after the statutory period and the complaint only seeks recovery on a respondeat superior basis. McCurry v. Allen, 688 F.2d 581, 585 (8th Cir. 1982). Neither the complaint nor amended complaint state facts which would support even a respondeat superior theory of liability against the City. Therefore, to the extent the plaintiff seeks to impose liability on the City for the alleged unconstitutional acts of its employees Wilson and Gatewood, their claim must fail, and the complaint against the City should be dismissed. See Henry v. Farmer City State Bank, 808 F.2d 1228 (7th Cir. 1986).

 As to defendants Sgt. Wilson and Captain Gatewood and the complaint against them in their official capacities, an official-capacity suit is tantamount to an action directly against the public entity of which the official is an agent. In order to recover against city employees in their official capacities, plaintiff must establish the existence of a municipal policy or custom that was the "'moving force' behind," or caused the alleged constitutional violation. Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985); Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987); Marchant v. City of Little Rock, 741 F.2d 201, 204 (8th Cir. 1984). The entity's official "policy or custom" must have "caused" the constitutional violation; there must be an "affirmative link" or a "causal connection" between the policy and the particular constitutional violation alleged. Clay v. Conlee, supra. Plaintiff has failed to allege or present the existence of a policy or custom of the City of Little Rock that caused the alleged deprivations, and the complaint against the individual defendants in their official capacities must be, and is dismissed.

 Turning to the personal-capacity suit against the individual defendants, the Court will first deal with the allegations against Sgt. Wilson. In his deposition, Sgt. Wilson states that he provided a computer printout of the plaintiff's Little Rock Police Department arrest records to Lee Brockway, a reporter for the Benton Courier, in late January or mid-February of 1986. He told her that for any further information she needed to check with the Municipal Court. In Lee Brockway's affidavit, she states that she obtained a certified copy of the record of the Court Clerk of the Municipal Court on February 21, 1986. A copy of the certified copy reflects that it was certified on February 21, 1986. Plaintiff has presented nothing to support the conclusion that Sgt. Wilson released the information anytime after February 21, 1986. Therefore, as to defendant Wilson, the suit had to be filed within three years after February 21, 1986.

 The plaintiff refers to Rule 6(a) of the Federal Rules of Civil Procedure in support of his position that he had until February 22, 1989 to file the complaint. Rule 6(a) does allow the party to exclude the day of the act from which the period begins to run in the computation. However, if the day of the act, that is, February 21, 1986, is excluded, then February 22, 1989 would be day one of the fourth year under the Court's calculations, and the complaint against Wilson individually would be time-barred.

 Even if the Court were to hold that defendant Wilson's claim was not time-barred, the complaint against Wilson would nevertheless fail. In his deposition, Wilson testified that Ms. Brockway made her request while the LRPD public information officer, Lt. Bert Jenkins, was out of the office and Sgt. Wilson was filling in for him. One of his responsibilities was to respond to inquiries from the press. The records he provided to Ms. Brockway were those available on a computer printout. He was authorized by an assistant chief of police to give a copy of the printout to Ms. Brockway. He stated that he did not know at the time he gave the printout to Ms. Brockway that one of the charges had been expunged and was not certain ...


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