                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 30, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 CO RTEZ N ATH ANIEL M EA DOW S,

               Plaintiff - Appellant,                   No. 07-6034
          v.                                         (W . D. Oklahoma)
 JOHN W HETSEL, Sherriff;                         (D.C. No. 06-CV-1169-R)
 O K LA H OMA C O U NTY BO A RD OF
 CO UNTY CO M M ISSIONERS,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Cortez Nathaniel M eadows filed suit on October 23, 2006, in the United

States District Court for the W estern District of Oklahoma against “Sheriff John

W hetsel and the Board of County Commissioners of Oklahoma County [the

Board], et al.” R. Doc. 1 at 1. He sought damages under 42 U.S.C. § 1983 for an

alleged unreasonable seizure and false arrest in violation of the Fourth


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Amendment; cruel and unusual punishment, in violation of the Eighth

Amendment; and a denial of due process and equal protection, in violation of the

Fourteenth Amendment. He further requested that Sheriff W hetsel, an Oklahoma

County Sheriff’s lieutenant, and several Oklahoma County Sheriff’s deputies be

suspended pending trial. Sheriff W hetsel and the Board moved to dismiss the

complaint for failure to state a claim. The district court granted the motion.

M r. M eadows moved for reconsideration, but the motion was denied.

M r. M eadows now appeals. W e have jurisdiction under 28 U.S.C. § 1291 and

affirm.

      The complaint alleges the following: M r. M eadows was ordered to leave

the Oklahoma County courthouse law library by Oklahoma County Sheriff

Lieutenant Grimsley and Oklahoma County Sheriff Deputies Fow ler, Pence, and

Boatman. He obeyed the order and walked toward the nearest courthouse elevator

to leave the building. The officers followed him to the elevators, where Grimsley

ordered him to enter an elevator on its way up. M r. M eadows refused and

continued waiting for an elevator going down. Grimsley then grabbed him,

shoved him against a concrete wall, and handcuffed him with the assistance of the

deputies. M r. M eadows was released after a brief detention and soon after sought

medical treatment for his injuries.

      On D ecember 7, 2006, the district court dismissed the claims against

Sheriff W hetsel and the B oard on several grounds: (1) a claim against the Board

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was improper because “‘the Sheriff neither reports to, nor is controlled by, the

Board,’” R. Doc. 10 at 1 (Dist Ct. Order) (quoting Jantzen v. Hawkins, 188 F.3d

1247, 1259 (10th Cir. 1999)); (2) M r. M eadows “failed to allege any official

policy or custom of either Defendant which was the moving force behind any

constitutional deprivation” or even that Sheriff Whetsel had made a decision

causing such deprivation, id.; (3) M r. M eadows failed to comply with the notice

requirements of Oklahoma’s G overnmental Tort Claims A ct (GTCA), Okla. Stat.

tit. 51, §§ 156 and 157; and (4) M r. M eadows failed to respond to the motions, or

request an extension of time to respond, as required by a local rule.

      M r. M eadows filed a motion under Fed. R. Civ. P. 60(b) to reconsider the

dismissal, stating, among other things, that severe medical problems inflicted by

the sheriff’s officers had rendered him unable to reply to the motion to dismiss.

The district court denied the motion on January 9, 2007, and M r. M eadows

appealed on February 8.

      W e first must resolve who the proper defendants are in this action. The

general rule is that “[i]n the complaint the title of the action shall include the

names of all the parties.” Fed. R. Civ. P. 10(a). But “in a pro se case when the

plaintiff names the wrong defendant in the caption or when the identity of the

defendants is unclear from the caption, courts may look to the body of the

complaint to determine who the intended and proper defendants are.” Trackwell

v. U.S. Government, 472 F.3d 1242, 1243–44 (10th Cir. 2007). The caption of

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M r. M eadows’s complaint states the defendants as “Sheriff John W hetsel and the

Board of County Commissioners of Oklahoma County, et al.” R. Doc. 1 at 1.

The question here is whether any additional defendants— in particular Lieutenant

Grimsley or the deputies— are encompassed by the “et al.”

      Unfortunately, the district court failed to make any inquiries or findings in

this regard. But we are confident that M r. M eadows intended to sue only Sheriff

W hetsel and the Board. First, M r. M eadows sought summonses only for W hetsel

and the Board. Second, in the portion of his complaint labeled “Jurisdiction,” he

lists himself as plaintiff and W hetsel and the Board as defendants, but no other

person is named. Third, his appellate brief twice states that he filed his complaint

against “Sheriff John W hetsel and the Board of County Commissioners of

Oklahoma County,” Aplt. Br. at 2, 6, with no mention of “et al” or any other

specifically named defendant; and it refers to W hetsel and the Board as

“Appellees,” id. at 2, 9; see id. at 7 (referring to “Appellee” W hetsel), but never

so refers to Grimsley or the deputies. Finally, the record contains no pleading in

which he says that he is seeking relief from anyone besides W hetsel and the

Board. Accordingly, we think that the suit is properly construed as against

W hetsel and the Board alone, and we consider whether dismissal of the claims

against them was proper.

       “Dismissal of a pro se complaint under Rule 12(b)(6) for failure to state a

claim is proper only where it is obvious that the plaintiff cannot prevail on the

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facts he has alleged and it would be futile to give him an opportunity to amend.”

Johnson v. Johnson, 466 F.3d 1213, 1214–15 (10th Cir. 2006) (internal quotation

marks omitted). W e review de novo a district court’s dismissal for failure to state

a claim upon which relief can be granted. See Ruiz v. M cDonnell, 299 F.3d 1173,

1181 (10th Cir. 2002).

      It is unclear whether Sheriff W hetsel was sued in his official or his

individual capacity, so we will assume that he was sued in both. To state a claim

against the Board or against Sheriff W hetsel in his official capacity,

M r. M eadows must allege that his injuries were the result of “a policy or custom.”

Novitsky v. City of Aurora, 491 F.3d 1244, 1259 (10th Cir. 2007) (“A

municipality cannot be held liable for its officers’ actions under § 1983 unless

those actions were caused by a policy or custom of the municipality.”); M yers v.

Okla. County Bd. of County Com m’rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998)

(suits against a municipal officer acting in his official capacity are treated the

same as those against a municipality). But he has failed to do so. And to state a

claim against Sheriff W hetsel in his individual capacity, M r. M eadows must

allege that the Sheriff directly violated his constitutional rights. Section 1983

demands more than mere control over subordinates to support supervisor liability.

See Johnson v. M artin, 195 F.3d 1208, 1219 (10th Cir. 1999) (“[S]upervisor

liability requires allegations of personal direction or of actual knowledge and

acquiescence.” (internal quotation marks omitted)). M r. M eadows’s complaint,

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however, does not allege that Sheriff Whetsel played any part in any of the

alleged constitutional violations. M r. M eadows did not suggest in his Rule 60(b)

motion that he could cure the defects in his claims w ith an amended complaint.

Accordingly, dismissal was proper. M r. M eadows’s request that Sheriff Whetsel

and Grimsley, Fowler, Pence, and Boatman be suspended pending trial is

therefore moot.

      W e AFFIRM the judgment below and DENY M r. M eadows’s motion to

proceed in form a pauperis.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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