United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER OF PARTIAL
matter is before the Court sua sponte. Pro se
Plaintiff Justin Ford is incarcerated with the Mississippi
Department of Corrections, and his claims arise from an
arrest. The Court has considered and liberally construed the
pleadings. As set forth below, Defendants Hattiesburg Police
Department, Hattiesburg Internal Affairs, and City of
Hattiesburg are dismissed.
filed this action on June 6, 2017. He alleges that on October
24, 2014, he was a passenger in a vehicle that was stopped by
Defendants Hattiesburg police officers Larry Allen and C.
Crabtree. Ford claims he fled the scene, and both officers
chased him-Allen in his patrol car and Crabtree on foot.
According to Ford, Allen caught up to him, Ford surrendered,
and "Officer Allen went in his right cargo pocket and
pulled on a metal plate glove, put it on his right hand and
struck [Plaintiff],, . breaking [his] jaw." (Compl. at
5). Crabtree was approximately 100 yards away at the time.
when Officer Crabtree arrived, he placed Ford under arrest,
and Officer Allen left. Ford maintains that Crabtree took him
to the Forrest County Adult Detention Center, without any
medical treatment. Fie claims that for twenty-two hours he
could not eat because of the pain and did not receive medical
attention until the officers at the county jail made the
Hattiesburg Police Department take Plaintiff to the hospital.
Once there, he is said to have had his jaw wired shut.
brings this Complaint under 42 U.S.C. § 1983, asserting
claims under the Eighth Amendment for excessive force and a
denial of medical treatment. Besides the two police officers,
he sues the Hattiesburg Police Department and its Internal
Affairs division and the City of Hattiesburg under a theory
of respondeat superior.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. The
statute provides in part, "the court shall dismiss the
case at any time if the court determines that. ., the action
.,, (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief,
" 28 U.S.C. § 1915(e)(2)(B). The statute
"accords judges not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless."
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
"[I]n an action proceeding under [28 U.S.C. § 1915,
a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they
have not been addressed or raised." Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir, 1990).
"Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer."
Id. The Court has permitted Ford to proceed in
forma pauperis in this action. His Complaint is subject
to sua sponte dismissal under § 1915.
others, Ford sues the City of Hattiesburg, the Hattiesburg
Police Department, and its Internal Affairs division
(collectively, "the City") under § 1983,
claiming excessive force and a denial of medical treatment.
They are sued because, allegedly, Officer Allen used
excessive force and both he and Officer Crabtree denied
municipality may be held liable under § 1983 when its
official policies or customs violate the Constitution,
Monell v. Dep't of Soc, Servs., 436 U.S. 658,
690-91 (1978). The policy or custom must cause the
constitutional tort. Id. at 691. "[A]
municipality cannot be held liable under § 1983 on a
respondeat superior theory, " Id.
Thus, to state a claim against the City under § 1983,
Ford must allege (1) the existence of a policymaker, and (2)
an official policy or custom (3) which is the moving force
behind a constitutional violation. Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001).
does not allege the existence of any official City policy,
custom, or practice, but he sues the City merely because it
was the employer of the two officers who are alleged to have
violated Ford's rights. This is insufficient to state a
claim against the City, under § 1983. The Police
Department, Internal Affairs, and the City will therefore be
dismissed, IT IS THEREFORE ORDERED AND
ADJUDGED that, for the reasons stated above, the
claims against Defendants Hattiesburg Police Department,
Hattiesburg Internal Affairs, and City of Hattiesburg should
be, and are hereby, DISMISSED WITH PREJUDICE
as frivolous and for failure to state a claim upon which
relief could be granted. The remainder of this case shall