UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES EDWARD CASTLE, JR.,
Plaintiff-Appellant,

v.

JOHN L. WOLFORD, Chief of Police;
LATROY DURRETTE, Police Officer;
                                                                          No. 97-2183
CARL SPROUSE, Police Officer; JAMES
R. MOONEY, Police Officer; CHERYL
SMITH, Police Officer; CITY OF
CHARLOTTESVILLE,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
B. Waugh Crigler, Magistrate Judge.
(CA-97-1-C)

Submitted: September 30, 1998

Decided: October 20, 1998

Before WILKINS and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

_________________________________________________________________

COUNSEL

Lindsay G. Dorrier, Jr., DORRIER LAW OFFICES, Scottsville, Vir-
ginia, for Appellant. Helen E. Phillips, Charlottesville, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Charles Edward Castle, Jr., appeals from the district court's orders
dismissing his 42 U.S.C.A. § 1983 (West Supp. 1998) action and
denying his motion to alter or amend the judgment filed pursuant to
Fed. R. Civ. P. 52(b), 59. For the following reasons, we affirm in part
and vacate and remand in part.

Castle filed a § 1983 action against the City of Charlottesville, John
L. Wolford, Chief of the Charlottesville Police Department, and
Latroy Durrette, Carl Sprouse, James Mooney, and Cheryl Smith,
Charlottesville police officers. Castle alleged that the Defendants vio-
lated his Fourth, Sixth, and Fourteenth Amendment rights on August
30, 1996. The Defendants moved to dismiss, or in the alternative, for
summary judgment. The district court dismissed Castle's complaint
pursuant to Fed. R. Civ. P. 12(b)(6), after finding that the City of
Charlottesville was not subject to liability under§ 1983, Officer
Smith was not personally involved with the complained of incident,
and Castle did not sue the remaining officers in their individual
capacities. Castle subsequently filed motions to amend the court's
opinion and judgment pursuant to Fed. R. Civ. P. 52(b), and to alter
or amend the judgment and grant a new trial pursuant to Fed. R. Civ.
P. 59. The district court denied the motions.

We review the district court's decision to grant a motion to dismiss
under Rule 12(b)(6) de novo, construing the factual allegations in the
light most favorable to the plaintiff. See Estate Constr. Co. v. Miller
& Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir. 1994); Schatz v.
Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991). Dismissal for failure
to state a claim is proper where "it is clear that no relief could be
granted under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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Viewing the facts in the light most favorable to Castle, they reveal
that on August 30 he was driving in Charlottesville in his 1984 blue
Oldsmobile station wagon. His wife and baby were passengers in the
car. Officers Mooney and Sprouse activated the red and blue lights on
their police cruisers, and Castle pulled his car over to the side of the
street. Castle heard a voice over the loudspeaker directing him to exit
the vehicle. He complied. He then observed a number of Charlottes-
ville police vehicles and city policemen with pistols drawn and
pointed in his direction. Officers directed him to turn around and walk
backwards towards them with his hands raised over his head. He
again complied, walking approximately forty or fifty feet. When he
stopped, Castle alleges that he felt the barrel of a pistol placed in his
back by Officer Durrette.

Officer Durrette instructed Castle to intertwine his fingers and
place his hands on top of his head. Castle followed the instruction.
Officer Durrette then removed Castle's left arm from his head, jerked
and twisted the arm around his back, and placed Castle in a "full Nel-
son." Castle contends that he then apprised Officer Durrette and the
other officers that Durrette had injured his shoulder. Castle further
states that Officer Durrette then placed him under arrest.

Durrette removed Castle's right hand from his head and brought it
down behind his back and placed him in handcuffs. Castle alleges that
the officers inquired about the presence of guns and refused to answer
Castle's questions about why he was detained or arrested.

Castle was then placed in Officer Durrette's police cruiser where
Durrette asked Castle whether he had been in Augusta County, Vir-
ginia. Officer Durrette explained that the officers were looking for a
man who was involved in a shooting in Augusta County. While Castle
was still sitting in the police cruiser, Officer Durrette came up to the
cruiser, opened the door and said "We got the wrong person . . . we're
sorry . . . ." Upon his release, Castle returned to his vehicle and drove
to the Charlottesville Police Department. He discussed the matter with
an officer, who advised Castle to go to the emergency room at the
local hospital.

Castle complains that during his detention, he was not permitted to
contact his family or secure the assistance of counsel. He also alleges

                    3
that the Defendants violated his Fourth and Fourteenth Amendment
rights by conducting an unreasonable search and seizure, his Sixth
and Fourteenth Amendment rights by not informing him of the nature
and cause of the accusation against him, and his Fourteenth Amend-
ment rights not to be deprived of due process. Lastly, he complains
that because of the Defendants' conduct, he was unable to attend the
duties of truck driver for a period of four months and sustained dam-
ages and loss of earnings in the amount of $7500.

The district court dismissed Castle's action in its entirety. As the
district court correctly found, Castle failed to state a claim against the
City of Charlottesville under § 1983. The standards for imposing lia-
bility on a municipality under § 1983 are well settled in this circuit:
"The substantive requirements for proof of municipal liability are
stringent." Jordan ex rel. Jordan v. Jackson , 15 F.3d 333, 338 (4th
Cir. 1994). Of course, the basic premise is that respondeat superior is
not applicable to municipalities in the context of§ 1983. Municipali-
ties may not be held liable for the constitutional torts of their officers,
employees, or agents merely because of the agency relationship. See
Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978). To
establish municipal liability under § 1983, the plaintiff must prove the
existence of an official policy or custom of the municipality that prox-
imately caused the deprivation of his rights. See Board of the County
Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, ___, 65
U.S.L.W. 4286, 4288 (U.S. Apr. 28, 1997) (No. 95-1100); Spell v.
McDaniel, 824 F.2d 1380, 1385-87 (4th Cir. 1987). Municipal poli-
cies include formal and informal decisions made by municipal offi-
cials authorized to make final decisions. See Spell, 824 F.2d at 1385-
86. Municipal customs are established by persistent, widespread prac-
tices of municipal officials, whether specifically authorized or not,
which are so permanent and well settled as to have the force of law.
See id. at 1386. Such practices are attributable to a municipality when
they become so frequent in occurrence that actual or constructive
knowledge is imputed. See id. at 1387.

In the instant case, Castle does not allege in his complaint that his
injuries were caused by an official city policy or custom. Thus, Castle
does not state a claim against the City of Charlottesville. The district
court correctly dismissed Castle's claim against Defendant Wolford,
Chief of Police, because it was based upon the theory of respondeat

                     4
superior and not on any personal involvement by Wolford. See
Monell, 436 U.S. at 692. Also, the court correctly dismissed the
claims against Officer Smith because Castle did not set forth any facts
implicating the personal involvement of Officer Smith in the incident
of August 30.

However, we conclude that the district court wrongfully dismissed
the claims against Officers Durrette, Sprouse, and Mooney. The basis
for the lower court's dismissal was its view that Castle's complaint
did not sue the Defendants in their individual capacities, but rather
only in their official capacities. The district court thus applied a strin-
gent standard to Castle's complaint by requiring him to expressly
plead that he was bringing the claims against the officers in their indi-
vidual capacities. However, we have held that a litigant need not
expressly plead that state officials are being sued in their individual,
rather than official, capacities. See Biggs v. Meadows, 66 F.3d 56, 57
(4th Cir. 1995); Fed. R. Civ. P. 9(a). Rule 9 does not require that a
§ 1983 plaintiff expressly plead capacity, and it also prohibits courts
from imposing a more stringent standard. See Biggs, 66 F.3d at 60.

Under the standard adopted by this court, when a plaintiff does not
allege capacity specifically, the Court "must examine the nature of the
plaintiff's claims, the relief sought, and the course of proceedings to
determine whether a state official is being sued in a personal capac-
ity." Id. at 61. One factor indicating that suit has been filed against
a state official in a personal capacity might be the plaintiff's failure
to allege that the defendant acted in accordance with a governmental
policy or custom, or the lack of indicia of such a policy or custom on
the face of the complaint. See id. Another indicator that suit has been
brought against a state actor personally may be a plaintiff's request
for compensatory or punitive damages because such relief is not
available in official-capacity suits. See id. The underlying inquiry is
whether the plaintiff's intention to hold a defendant personally liable
can be ascertained fairly. See id.

Applying the above analysis to Castle's complaint, we find that
Castle's intent to hold the Defendants personally liable can be fairly
ascertained. An examination of the substance of Castle's complaint
reveals that his allegations focus on the Defendants' actions toward
Castle, the manner in which they arrested him and conducted a war-

                     5
rantless search and arrest, and do not implicate an official policy or
custom. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (to estab-
lish personal liability under § 1983, it is sufficient to show that the
official, acting under color of state law, caused the deprivation of a
federal right.). As to the relief requested, Castle sought compensatory
damages in the amount of $7500. It would have been illogical for
Castle to sue the Defendants in their official capacities and to then
request a form of relief that would be unavailable to him in such a
suit. See Biggs, 66 F.3d at 61. Lastly, an examination of the course
of proceedings reveals that the Defendants did not raise the argument
that Castle did not sue them in their individual capacities in their
motion to dismiss or that Castle was not entitled to monetary damages
because this was an official-capacity suit. The Defendants also argued
that Castle's claims lacked merit, which suggests that the Defendants
perceived the complaint to state a claim against them as individuals.
See Graham, 473 U.S. at 167 n.14 (when complaint does not specify
whether officials are sued personally, the course of proceedings typi-
cally will indicate the nature of liability sought); Biggs, 66 F.3d at 61
(examining the course of proceedings to determine whether officials
were sued personally). Overall, the relevant factors in this case dem-
onstrate that Castle intended to sue the officers as individuals.

Because the district court wrongly dismissed Castle's complaint
based on its erroneous conclusion that Castle intended to sue Officers
Durrette, Sprouse, and Mooney only in their official capacities, we
vacate that portion of the district court's order and remand this case
for further proceedings. We affirm the dismissal of the City of Char-
lottesville, Chief of Police Wolford, and Officer Smith. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED IN PART AND VACATED
AND REMANDED IN PART

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