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Russell Holliday, # 8560 v. Trooper Ramert

December 6, 2012

RUSSELL HOLLIDAY, # 8560, PLAINTIFF,
v.
TROOPER RAMERT, DEPUTY DAN HILL, OFFICER TIM LAY, K-9 POLICE DOG KODIAK, ILLINOIS STATE POLICE, DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

Plaintiff, currently incarcerated at St. Clair County Jail, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants Ramert, Hill and Lay subjected him to cruel and unusual punishment. Construing Plaintiff's pleadings liberally, the Court takes into account the supplemental police report attached by Plaintiff to his pleadings (Doc. 1 p. 7). This report identifies Illinois State Police K-9 Officer Jason Ramert as the handler of police dog "Kodiak". Plaintiff states that these law enforcement officers used excessive force during the arrest of Plaintiff by ordering the K-9 Officer of Kodiak to utilize the dog to attack Plaintiff. Plaintiff states he was not resisting arrest. He further states the Defendants' actions caused injury to his leg and back.

This case is now before the Court for a preliminary review of Plaintiff's operative complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening. -- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for Dismissal. -- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendants Ramert, Hill and Lay for excessive force.

Plaintiff's claim against the Illinois State Police shall be dismissed. Governmental entities cannot be held liable for the unconstitutional acts of their employees unless those acts were carried out pursuant to an official custom or policy. Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). See also Monell v. Dept. of Soc. Serv., 436 U.S. 658, 694 (1978). "The 'official policy' requirement for liability under § 1983 is to 'distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.'" Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 515 (7th Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). See also Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) ("Misbehaving employees are responsible for their own conduct, 'units of local government are responsible only for their policies rather than misconduct by their workers.'" (quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir. 2007))).

Plaintiff names K-9 "Kodiak" as a defendant in this matter. § 1983 applies only to a "person" who acts under color of state law. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Under the Dictionary Act,

1, "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals", but dogs are not on this list, whether or not they act under color of state law." Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001). The Seventh Circuit has addressed the issue of naming a police dog as defendant in an excessive force claim and held that a dog is not a proper defendant in litigation under § 1983. Id. at 299.

Pending Motions

Plaintiff's motion for appointment of counsel (Doc. 3) shall be referred to United States Magistrate Judge Stephen C. Williams for further consideration.

Disposition

The Clerk is DIRECTED to strike Defendant Illinois State Police and police dog "Kodiak" and add Deputy Dan Hill and ...


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