[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 13, 2011
No. 10-13359
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 3:10-cv-00087-RV-MD
MARVIN LEE NETTLES,
Plaintiff-Appellant,
versus
PENSACOLA POLICE DEPARTMENT,
BOWER, Sergeant,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 13, 2011)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Marvin Lee Nettles appeals pro se from the district court’s dismissal of his
42 U.S.C. § 1983 amended complaint against the City of Pensacola Police
Department.1 On appeal, Nettles contends his pleading was sufficient to
demonstrate a claim for a Fourth Amendment violation because he alleged
Sergeant Bower hit him with his police cruiser and thus used excessive force.2
After review, we affirm.3
Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court shall dismiss a case proceeding
in forma pauperis “at any time if the court determines that . . . the action . . . fails
to state a claim on which relief may be granted.” The standards governing
dismissals under Fed. R. Civ. P. 12(b)(6) apply to § 1915(e)(2)(B)(ii). Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). Pro se pleadings are construed
liberally. Id.
1
The district court liberally construed the defendant as the City of Pensacola because the
Pensacola Police Department was not a legal entity capable of being sued. Dean v. Barber, 951
F.2d 1210, 1214 (11th Cir. 1992).
2
Nettles has not raised either his Eighth Amendment claim or his claim that the
Pensacola Police Department violated his Fourth Amendment rights by illegally searching his
vehicle without a warrant and without his consent. These claims are abandoned. Harris v.
United Auto. Ins. Group, Inc., 579 F.3d 1227, 1231 n.1 (11th Cir. 2009).
3
Dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim is reviewed de novo,
viewing the allegations in the complaint as true. Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008).
2
“To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a
violation of a constitutional right, and (2) that the alleged violation was committed
by a person acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256,
1258 (11th Cir. 2005). Use of excessive force in making an arrest constitutes a
violation of the Fourth Amendment. Davis v. Williams, 451 F.3d 759, 767 (11th
Cir. 2006).
Nettles did not name Sergeant Bower (or any other police officer) in his
amended complaint; thus, Bower was not a proper defendant.4 Moreover, there is
no basis for holding the City of Pensacola liable. Nettles’ amended complaint
does not allege that the Fourth Amendment violation occurred pursuant to any
policy or custom by the City of Pensacola, despite the magistrate judge’s warning
that his amended complaint had to allege as much. See Lewis v. City of West Palm
Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009) (stating a city may be held
liable under § 1983 only if “the injury caused was a result of municipal policy or
custom”). Accordingly, the district court did not err in dismissing Nettles’
amended complaint for failure to state a claim.
AFFIRMED.
4
The magistrate judge instructed that all defendants be listed in the amended complaint,
and stated that the amended complaint would supercede the original complaint.
3