UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ROBERT DALE KILGORE PEPPERS, )

)

Plaintiff, )

)

v. ) No. 3:16 CV 123

)

OFFICER JOSEPH MITCHELL and )

ST. JOE COUNTY JAIL, )

)

Defendants. )

OPINION and ORDER

Plaintiff, pro se, sued defendants Officer Joseph Mitchell and the St. Joseph

County Jail for their respective roles in the assault that occurred during his unlawful

arrest and a subsequent detention. (DE # 1 at 2-3.) Though plaintiff does not state that

42 U.S.C. § 1983 is the legal basis for his claims, the court assumes that it is, since he

alleges constitutional violations. Defendants have moved to dismiss the claims against

them under Federal Rule of Civil Procedure 12(b)(6), which requires that the court

dismiss a complaint which fails to state a claim upon which relief may be granted. (DE

## 11, 14.)

Defendant Mitchell first points out that the complaint names him as “Officer

Joseph Mitchell” but fails to indicate whether Mitchell has been sued in his official or

his individual capacity. He argues that the court should assume that plaintiff did not

intend any individual capacity suit, and that the official capacity claim fails as a matter

of law.
First, the court will not place a pro se litigant like plaintiff “in the chokehold of

restrictive, overly technical pleading requirements” when it comes to stating a claim for

official and individual capacity suits. Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991)

(improper for district court to construe pro se complaint against “Sgt. Shelander” as suit

against defendant in official capacity only). Accordingly, the court construes the

complaint as suing Mitchell in both his individual and official capacities.

However, Mitchell is correct that the official capacity claim against him fails as a

matter of law. A complaint against an officer in his official capacity is “another way of

pleading an action against an entity of which an officer is an agent.” Hafer v. Melo, 502

U.S. 21, 25 (1991). In this case, the entity is presumably the City of South Bend, which

employs Mitchell as part of its police force. For the City of South Bend to be liable, it

must have employed a policy or custom that resulted in a deprivation of plaintiff’s

rights. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). However,

plaintiff’s complaint does not contain any allegations hinting at the existence of a

policy or custom that is responsible for his harm, so any official capacity claim against

Mitchell must be dismissed. As explained above, an individual capacity against

Mitchell still remains.

Defendant St. Joseph County Jail has moved to dismiss plaintiff’s claim against it

because it is not an entity that may be sued. This premise is correct; typically a jail is

not a suable entity under Section 1983. Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040 (7th

Cir. 2012). However, the Seventh Circuit has stated that a pro se plaintiff who makes a

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“pleading gaffe” in a complaint by suing a jail instead of a proper Section 1983

defendant deserves an opportunity to offer a curative amendment before the complaint

is dismissed with prejudice. Id. Accordingly, the court will grant the motion of St.

Joseph County Jail for dismissal of the claims against it, but the court will permit

plaintiff an opportunity to amend his complaint to state a claim against a proper entity.

For the foregoing reasons, defendant Officer Joseph Mitchell’s motion to dismiss

(DE # 11) is GRANTED, in part, and DENIED, in part, and St. Joseph County Jail’s

motion to dismiss (DE # 14) is GRANTED. Plaintiff is permitted until March 3, 2017, to

file an amended complaint.

SO ORDERED.

Date: February 2, 2017

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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