Laboke v. City of Fairmont ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EFREM O. LABOKE; EUNICE LABOKE,
Plaintiffs-Appellants,
v.
CITY OF FAIRMONT; CITY OF FAIRMONT
POLICE DEPARTMENT, its agents and
No. 99-2073
officers; AMY HAYES; TED OFFUT,
Officer; WILLIAM COLE, Officer;
PATRICK RETTON, Officer; JOSEPH
MERIDINO, Officer, in their official
and individual capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-98-8-1)
Submitted: February 8, 2000
Decided: March 10, 2000
Before MURNAGHAN and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Keith L. Wheaton, Martinsburg, West Virginia, for Appellants. Timo-
thy R. Miley, THE LAW OFFICES OF THOMAS G. STEELE,
Clarksburg, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Efrem and Eunice Laboke appeal the district court's sua sponte dis-
missal with prejudice of their pro se civil complaint against the City
of Fairmont, West Virginia, its police department, four individual
police officers in their official and individual capacities, and a meter
attendant employed by the City in her official and individual capaci-
ties.
Before a district court dismisses a complaint sua sponte in the early
stages of a case, "the plaintiffs are entitled to the court's most liberal
reading of the allegations" in that complaint. Crosby v. Holsinger, 816
F.2d 162, 163 (4th Cir. 1987). When a complaint is broad in nature,
the court should use pretrial conference, discovery, and/or summary
judgment to define the issues, not dismissal for failure to state a
claim. See Bolding v. Holshouser, 575 F.2d 461 (4th Cir. 1978).
The complaint in this case, while inartfully pleaded, alleged Mr.
Laboke was physically assaulted by the individually named officers
on January 18, 1996, in the city of Fairmont, West Virginia. It further
alleged Mrs. Laboke was verbally and physically assaulted by the
chief of police. While the complaint did not allege violation of a par-
ticular statute, it did allege the officers, acting under color of state
law, violated the Labokes' "Civil and Human Rights," constitutional
right of due process, and the "laws of the State of West Virginia, Civil
Rights Act, and Human Rights Act."
The district court correctly dismissed the claims against the City of
Fairmont, the police department, and the officers in their official
capacities based upon the Labokes' failure to establish a pattern or
custom of using excessive force. See Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999). We therefore affirm the district court's order as
to those claims. However, because a pattern or custom of using exces-
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sive force is not a requirement for a claim of use of excessive force
against individual officers under § 1983, see Rowland v. Perry, 41
F.3d 167, 173 (4th Cir. 1994),* we conclude these claims were
improperly dismissed. We therefore vacate the district court's order
insofar as it dismisses the claims against the five officers in their indi-
vidual capacities and remand to allow the Labokes an opportunity to
clarify these potentially cognizable claims and for further proceedings
as required. See Coleman v. Peyton, 340 F.2d 603 (4th Cir. 1965). We
express no opinion as to the merits of the Labokes' claims of exces-
sive force.
We find, however, that the Labokes' claims of verbal harassment
without an allegation of harm flowing therefrom fail to state a consti-
tutional claim, see Cole v. Cole, 633 F.2d 1083, 1091 (4th Cir. 1980),
and therefore affirm the district court's dismissal of those claims
against the individual officers.
Because the Labokes do not challenge the district court's grant of
Appellees' motion in limine, we also affirm the district court's order
denying the motion. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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*The specific inquiry in an excessive force case"is whether a reason-
able officer could have believed that the use of force alleged was objec-
tively reasonable in light of the circumstances." Perry, 41 F.3d at 173.
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