United States District Court, E.D. Missouri, Southeastern Division
GARRY D. GIBBS, Plaintiff,
CITY OF NEW MADRID, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on its own motion. This action was
stayed under Wallace v. Kato, 549 U.S. 384 (2007),
pending the outcome of plaintiff's criminal charges in
Missouri v. Gibbs, No. 12NM-CR00544 (New Madrid
County). Plaintiff has informed the Court that the charges in
that case were dismissed. As a result, the stay is lifted.
Additionally, the Court must review the complaint under 28
U.S.C. § 1915(e).
28 U.S.C. § 1915(e), the Court is required to dismiss a
complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief, a complaint must plead
more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “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.”
Id. at 678. Determining whether a complaint states a
plausible claim for relief is a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
brings this action against the City of New Madrid, New Madrid
County, and several police officers and sheriff deputies.
Plaintiff was hosting an open house at his business place,
Next Level Lounge & Restaurant, on May 20, 2012. Several
police officers arrived there around midnight, charging
plaintiff with operating the business without the proper
licenses. Plaintiff denied the charge and showed the officers
some receipts, which he said were for the licenses.
alleges that defendant McFerren then ordered his officers to
take plaintiff outside. He says that defendants McFerren,
White, Brandenburg, Simmons, Dubois, Roberts, Shelly, Rhades,
and Johnson then kicked him, choked him, and tasered him
without provocation. The officers took plaintiff to jail, and
he was released the following day.
says that he returned to his business on May, 262012, and
that “defendants” arrested him “with no
basis in fact or law to do so.” Plaintiff brings one
count of excessive force and one count of false arrest.
complaint states a plausible claim for excessive force
against the individual defendants. However, plaintiff has not
stated whether he intends to sue defendants in their
individual capacities, official capacities, or both. Where a
“complaint is silent about the capacity in which
[plaintiff] is suing defendant, [a district court must]
interpret the complaint as including only official-capacity
claims.” Egerdahl v. Hibbing Community
College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v.
Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a
government official in his or her official capacity is the
equivalent of naming the government entity that employs the
official. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989). To state a claim against
a municipality or a government official in his or her
official capacity, plaintiff must allege that a policy or
custom of the government entity is responsible for the
alleged constitutional violation. Monell v. Dep't of
Social Services, 436 U.S. 658, 690-91 (1978). The
instant complaint does not contain any allegations that a
policy or custom of a government entity was responsible for
the alleged violations of plaintiff's constitutional
rights. As a result, the complaint fails to state a claim
upon which relief can be granted.
plaintiff has not alleged that any of the defendants were
directly involved with the allegedly false arrest on May 26,
2012. “Liability under § 1983 requires a causal
link to, and direct responsibility for, the alleged
deprivation of rights.” Madewell v. Roberts,
909 F.2d 1203, 1208 (8th Cir. 1990); see Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (“Because
vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”).
Therefore, plaintiff's false arrest claim fails as a
matter of law.
plaintiff is proceeding pro se, the Court will allow
plaintiff to file an amended complaint. Plaintiff is warned
that the filing of an amended complaint replaces the original
complaint, and so he must include each and every one of his
claims in the amended complaint. E.g., In re
Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Any
claims from the original complaint that are not included in
the amended complaint will be considered abandoned.
Id. Plaintiff must allege how each and every
defendant is directly responsible for the alleged harm. In
order to sue defendants in their individual capacities,
plaintiff must specifically say so in the complaint.
plaintiff fails to sue defendants in their individual
capacities, this ...