United States District Court, S.D. Indiana, Indianapolis Division
MAJOR P. DAVIS, II, Plaintiff,
JOSEPH HOGSETT Mayor, INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, RICHARD HITE Chief of Police, official capacity, NICHOLAS GALICO Officer, PERRY RENN Officer, Defendants.
ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER
WALTON PRATT, JUDGE.
pro se Plaintiff, Major P. Davis, II,
(“Davis”) is an inmate currently confined in an
Indiana state prison. On January 11, 2016, Davis filed a
complaint alleging excessive police force. Because Davis is a
“prisoner” as defined by 28 U.S.C. §
1915(h), the complaint is subject to the screening
requirement of 28 U.S.C. § 1915A(b). Pursuant to this
statute, “[a] complaint is subject to dismissal for
failure to state a claim if the allegations, taken as true,
show that plaintiff is not entitled to relief.”
Jones v. Bock, 127 S.Ct. 910, 921 (2007). To survive
a motion to dismiss, the complaint “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. . . . 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 v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quotations omitted). Pro se complaints such as that
filed by Davis, are construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.
Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th
alleges that on July 5, 2014, he was unarmed and shot in the
head, abdomen and back by Officer Renn and the Indianapolis
Metropolitan Police Department (“IMPD”) in
violation of his Fourth Amendment rights. He brings his
claims pursuant to 42 U.S.C. § 1983.
of action is provided by Section 1983 against “[e]very
person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, . .
. subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Section 1983 is not itself a source of substantive
rights; instead, it is a means for vindicating federal rights
conferred elsewhere. Graham v. Connor, 490 U.S. 386,
393-94 (1989) (citing Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)). To be liable for a constitutional
violation, an individual must have personally participated in
the conduct or it must have occurred at his direction.
Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th
Cir. 1996) (“'An individual cannot be held liable
in a [42 U.S.C.] § 1983 action unless he caused or
participated in [the] alleged constitutional
deprivation.'”) (quoting Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); See
also West v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997)
(“the doctrine of respondeat superior is not
available to a plaintiff in a section 1983 suit”).
reasons explained below, the complaint must be dismissed
because Davis has failed to identify any viable defendant.
Davis has sued Mayor Joseph Hogsett, the mayor of
Indianapolis; Chief Richard Hite; Officer Perry Renn and
Officer Nicholas Galico. His Complaint states that
“each defendant is “sued” in his official
capacity.” (Dkt. 1 at p.2). An official-capacity claim
is effectively a suit against the governmental entity
employing the defendant. Scott v. O'Grady, 975
F.2d 366, 369 (7th Cir.1992), cert. denied, 508 U.S.
942 (1993). In this case, the real party in interest is the
City of Indianapolis and/or IMPD. These municipal entities
may be held liable under § 1983 only if they adopted a
“policy or custom” that resulted in the
deprivation of the plaintiffs constitutional rights.
Bennett v. Roberts, 295 F.3d 687, 699 (7th Cir.
2002) (citing Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 694 (1978)). “[I]t is when execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the
government as an entity is responsible under §
1983.” Monell, 436 U.S. at 694.
§ 1983 claims for damages against the defendants in
their official capacity are dismissed as legally
insufficient, because there is no allegation to suggest that
there is a municipal custom or policy for officers to shoot
shall have through February 29, 2016, in which to either file
an amended complaint correcting the deficiencies noted above
or to show cause why Judgment consistent with this Entry
should not issue. See Luevano v. Wal-Mart Stores,
Inc.,722 F.3d 1014, 1022 (7th Cir. 2013)
(“Without at least an opportunity to amend or to
respond to an order to show cause, an IFP applicant's
case could be tossed out of court without giving the
applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).