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Lewis v. City of Diaz

October 27, 2006

JOHN AND NANCY LEWIS PLAINTIFFS
v.
CITY OF DIAZ; OFFICER CHARLES W. MOSS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CHIEF OF POLICE FOR THE DIAZ POLICE DEPARTMENT; JACKSON COUNTY; JIM BISHOP, INDIVIDUALLY; STACEY SULLIVAN, INDIVIDUALLY DEFENDANTS



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

On October 23, 2006, this Court dismissed Defendants Sheriff Jim Bishop in his official capacity, Stacey Sullivan in his official capacity, and Jackson County Sheriff's Department. Therefore, Plaintiffs' claims that remained for trial were those claims against Defendants City of Diaz, Officer Charles W. Moss, individually and in his official capacity as Chief of Police, Stacey Sullivan in his individual capacity, Sheriff Jim Bishop in his individual capacity, and Jackson County with regard to liability based upon official policy, but not based upon custom or usage.

On October 25, 2006, the Court held a teleconference regarding the above-referenced case. In that teleconference, it was agreed that Plaintiffs would dismiss their case against Defendant Sheriff Jim Bishop in his individual capacity with prejudice. Additionally, Plaintiffs informed the Court that Defendant Charles Moss had not yet been served due to the fact that Defendant Moss was working in Afghanistan, and therefore, Plaintiff would voluntarily dismiss the claims against Defendant Moss without prejudice. Plaintiffs also informed the Court that they would not pursue their outrage claim or their claims under the Arkansas Civil Rights Act. Plaintiffs recognized that Plaintiff Nancy Lewis had no claim under 18 U.S.C. § 1983 for loss of consortium. Finally, Plaintiffs stated that they would pursue the § 1983 claims solely under the Fourth Amendment and the Fourteenth Amendment, if that is required for purposes of application of the Fourth Amendment to the states.

The Court will treat the representations by Plaintiffs' counsel as oral motions. Therefore, the Court grants the oral motions of the Plaintiffs. Plaintiffs' claims against Defendant Sheriff Jim Bishop in his individual capacity are dismissed with prejudice. Plaintiffs' claims against Defendant Charles Moss are dismissed without prejudice. Plaintiffs' outrage claim and claims under the Arkansas Civil Rights Act are dismissed. Finally, claims under § 1983 are asserted only by Plaintiff John Lewis, not Nancy Lewis, and are limited to claims under the Fourth Amendment and the Fourteenth Amendment, if that is required for purposes of application of the Fourth Amendment to the states.

Accordingly,

IT IS HEREBY ORDERED THAT Defendants Sheriff Jim Bishop in his individual capacity is dismissed with prejudice

IT IS FURTHER ORDERED THAT Defendant Charles Moss, Individually and In His Official Capacity as Chief of Police for the Diaz Police Department, is dismissed without prejudice.

IT IS FURTHER ORDERED THAT Plaintiffs' claim of outrage and Plaintiffs' claims under the Arkansas Civil Rights Act are dismissed.

IT IS FURTHER ORDERED THAT claims under § 1983 are asserted only by Plaintiff John Lewis and are limited to claims under the Fourth Amendment and the Fourteenth Amendment.

IT IS FURTHER ORDERED THAT the style of this case shall hereafter reflect this order of the Court and the Court's previous orders, to wit:

IT IS SO ORDERED THIS 27th day of October, 2006.

20061027

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