United States District Court, W.D. Arkansas, Harrison Division
OPINION AND ORDER
TIMOTHY L. BROOKS JUDGE
instant matter is a civil rights action filed by the
Plaintiff, Darren Lee Norman, pursuant to 42 U.S.C. §
1983. Before the Court is Separate Defendant Sheriff John
Montgomery's Motion to Dismiss. (ECF No. 15).
filed his Complaint on August 17, 2017, proceeding pro
se and in forma pauperis. (ECF No. 2). An
Amended Complaint was filed on September 26, 2017. (ECF No.
9). Plaintiff alleges a delay of medical care and excessive
use of force while he was incarcerated at the Baxter County
Detention Center. (ECF No. 9).
Defendant Montgomery argues that Plaintiffs Complaint fails
to allege any actionable wrongdoing against him either in his
personal or official capacity and that the Complaint should
be dismissed against him. The Plaintiff has not responded to
the Separate Defendant's motion.
8(a) contains the general pleading rules and requires a
complaint to present "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). "In order to meet this standard,
and survive a motion to dismiss under Rule 12(b)(6), *a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.'" Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft, 556 U.S.
at 678. While the Court will liberally construe a pro
se plaintiffs complaint, the plaintiff must allege
sufficient facts to support his claims. See Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004).
the Plaintiff has sued Separate Defendant Montgomery in both
his personal and official capacities. Clearly, the Plaintiff
has not set forth a claim against Separate Defendant
Montgomery in his personal capacity because he has not
pleaded facts suggesting that Separate Defendant Montgomery
was personally involved in the alleged delay of medical care
and excessive use of force. See Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009) ("a plaintiff must plead that
each Government-official defendant, through the officials own
individual actions, has violated the Constitution").
capacity claims are "functionally equivalent to a suit
against the employing governmental entity." Veatch
v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.
2010). A Plaintiff "seeking to impose liability on a
municipality under § 1983 [must] identify [an
unconstitutional] policy or custom that caused the
plaintiff's injury." Board of Cnty. Comm'rs
of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403
(1997). "There are two basic circumstances under which
municipal liability will attach: (1) where a particular
municipal policy or custom itself violates federal law, or
directs an employee to do so; and (2) where a facially lawful
municipal policy or custom was adopted with 'deliberate
indifference' to its known or obvious consequences."
Moyle v. Anderson, 571 F.3d 814, 817-18 (8th Cir.
has not pointed to "any officially accepted guiding
principle or procedure that was constitutionally
inadequate" and has not pointed to a
'"deliberate choice of a guiding principle or
procedure made by the municipal official who has final
authority regarding such matters.'" Jenkins v.
Cnty. of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009)
(quoting Mettler v. Whitledge, 165 F.3d 1197, 1204
(8th Cir. 1999)).
"a custom can be shown only by adducing evidence of a
continuing, widespread, persistent pattern of
unconstitutional misconduct." Id. at 634
(internal quotation marks and citation omitted). Plaintiff
has simply not asserted facts sufficient to state a plausible
claim that there was any widespread, persistent pattern of
reasons set forth above, the Court finds that the Separate
Defendant Sheriff John Montgomery's Motion to Dismiss
(ECF No. 15) should be, and hereby is
GRANTED and Plaintiffs complaint is
DISMISSED WITHOUT ...