501 F.3d 920 (8th Cir. 2007), 06-2838, Baker v. Chisom

Docket Nº:06-2838.
Citation:501 F.3d 920
Party Name:Joshua D. BAKER, Plaintiff-Appellant, v. Eric CHISOM, Drew County Deputy Sheriff, in His Official and Individual Capacities; Marcia Bruner, Drew County Deputy Sheriff, in Her Individual and Official Capacities, Defendants-Appellees.
Case Date:August 28, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 920

501 F.3d 920 (8th Cir. 2007)

Joshua D. BAKER, Plaintiff-Appellant,


Eric CHISOM, Drew County Deputy Sheriff, in His Official and Individual Capacities; Marcia Bruner, Drew County Deputy Sheriff, in Her Individual and Official Capacities, Defendants-Appellees.

No. 06-2838.

United States Court of Appeals, Eighth Circuit.

Aug. 28, 2007

Submitted: Feb. 14, 2007.

Rehearing and Rehearing En Banc Denied Oct. 5, 2007. [*]

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[Copyrighted Material Omitted]

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William C. Plouffe, Jr., argued, El Dorado, AR, for appellant.

Jason E. Owens, argued, Michael R. Rainwater, on the brief, Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

LOKEN, Chief Judge.

Early on August 15, 2002, Joshua Baker was arrested for traffic violations after leading police on a late-night, half-mile chase. While awaiting arrival of the arresting officer at the Drew County Jail, Deputy Sheriff Marcia Bruner handcuffed Baker's right arm to a bench and watched as Deputy Sheriff Eric Chisom choked Baker from behind and tasered him in the back of the head. After Chisom was convicted of third degree battery, Baker sued Chisom, Bruner, and other County defendants under 42 U.S.C. § 1983, asserting claims of excessive force, deliberate indifference, failure to train and supervise, and failure to maintain adequate County policies. In September 2004, on the eve of trial and with defendants' motion for summary judgment pending, Baker moved for a voluntary non-suit. On October 12, 2004, the district court granted Baker a non-suit as to defendants Chisom and Bruner. The court denied a non-suit and dismissed all claims against the other County defendants with prejudice.

On September 22, 2005, Baker filed a second action, asserting the same claims against Chisom and Bruner. Unlike his first complaint, the second complaint specifically named Chisom acting "in his official and individual capacities" and Bruner acting "in her individual and official capacities." The district court 1 dismissed the individual capacity claims as time-barred and the official capacity claims on the merits. The court also dismissed a state law tort claim added in Baker's First Amended Complaint. Baker appeals all three rulings. We affirm.

I. The Individual Capacity Claims.

The applicable state law statute of limitations governs § 1983 claims. See Board of Regents v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Baker's claims against Chisom and Bruner in their individual capacities are subject to the three-year Arkansas statute of limitations. Morton v. City of Little Rock, 934 F.2d 180, 182 (8th Cir.1991). If an Arkansas plaintiff files a timely action and then "suffers a nonsuit," he "may commence a new action within one (1) year." Ark.Code. Ann. § 16-56-126. We apply that savings statute to § 1983 claims. Whittle v. Wiseman, 683 F.2d 1128, 1129 (8th Cir.1982). Baker filed this action three years and six weeks after the August 2002 incident. Thus, unless tolled, the individual capacity claims are time-barred. Only causes of action pleaded in the non-suited action are tolled by the one-year savings statute. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376, 1377-78 (8th Cir.1994)

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A plaintiff may assert § 1983 claims against a public official acting in his individual capacity and in his official capacity. For many reasons, including exposure to individual damage liability and the State's Eleventh Amendment immunity, these are different causes of action. "[T]he distinction between official-capacity suits and personal-capacity suits is more than a mere pleading device." Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (quotation omitted).

This brief background brings to the fore an issue this court has often considered--when has a plaintiff properly asserted § 1983 claims against a public official acting in his individual capacity. We have repeatedly stated the general rule: "If a plaintiff's complaint is silent about the capacity in which [he] is suing the defendant, we interpret the complaint as including only official-capacity claims." Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir.1995); see Nix. v. Norman, 879 F.2d 429, 431 (8th Cir.1989). "If the complaint does not specifically name the defendant in his individual capacity, it is presumed he is sued only in his official capacity." Artis v. Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1182 (8th Cir.1998).

Baker's first complaint named as defendants "ERIC CHISOM; MARCIA BRUNER; LARON MEEKS, Individually and in his Capacity as Sheriff of Drew County; and DREW COUNTY QUORUM COURT MEMBERS [naming the nine members], in their Official Capacities and in their Individual Capacities." The County defendants other than Chisom and Bruner filed an Answer "in both their individual and official capacities." The same defense counsel then filed separate Answers by Chisom and Bruner but only in their official capacities. Some months later, all defendants moved for summary judgment. They argued, in part, that Chisom and Bruner were sued only in their official capacities and therefore "[n]one of the defendants named in their individual capacities had any personal involvement in the subject incident." Without responding to this contention, Baker moved to voluntarily non-suit the complaint without prejudice. Defendants objected to a non-suit "without first resolving the Defendants' Motion for Summary Judgment," noting they had incurred litigation time and expense.

The district court dismissed Baker's claims against the other County defendants with prejudice because Baker failed to submit evidence refuting their motion for summary judgment or even a statement of material facts in dispute. However, the court granted Baker's non-suit motion and dismissed the claims against Chisom and Bruner without prejudice, explaining:

The undisputed facts establish that Chisom committed battery against Baker, and that Bruner observed the battery but did nothing to stop it. Had Baker not filed a motion...

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