                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          APR 13, 2011
                             No. 10-13359
                                                           JOHN LEY
                         Non-Argument Calendar               CLERK
                       ________________________

                 D.C. Docket No. 3:10-cv-00087-RV-MD

MARVIN LEE NETTLES,

                                                           Plaintiff-Appellant,

                                  versus

PENSACOLA POLICE DEPARTMENT,
BOWER, Sergeant,

                                                        Defendants-Appellees.

                      ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (April 13, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       Marvin Lee Nettles appeals pro se from the district court’s dismissal of his

42 U.S.C. § 1983 amended complaint against the City of Pensacola Police

Department.1 On appeal, Nettles contends his pleading was sufficient to

demonstrate a claim for a Fourth Amendment violation because he alleged

Sergeant Bower hit him with his police cruiser and thus used excessive force.2

After review, we affirm.3

       Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court shall dismiss a case proceeding

in forma pauperis “at any time if the court determines that . . . the action . . . fails

to state a claim on which relief may be granted.” The standards governing

dismissals under Fed. R. Civ. P. 12(b)(6) apply to § 1915(e)(2)(B)(ii). Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). Pro se pleadings are construed

liberally. Id.




       1
         The district court liberally construed the defendant as the City of Pensacola because the
Pensacola Police Department was not a legal entity capable of being sued. Dean v. Barber, 951
F.2d 1210, 1214 (11th Cir. 1992).
       2
         Nettles has not raised either his Eighth Amendment claim or his claim that the
Pensacola Police Department violated his Fourth Amendment rights by illegally searching his
vehicle without a warrant and without his consent. These claims are abandoned. Harris v.
United Auto. Ins. Group, Inc., 579 F.3d 1227, 1231 n.1 (11th Cir. 2009).
       3
         Dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim is reviewed de novo,
viewing the allegations in the complaint as true. Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008).

                                                2
       “To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a

violation of a constitutional right, and (2) that the alleged violation was committed

by a person acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256,

1258 (11th Cir. 2005). Use of excessive force in making an arrest constitutes a

violation of the Fourth Amendment. Davis v. Williams, 451 F.3d 759, 767 (11th

Cir. 2006).

       Nettles did not name Sergeant Bower (or any other police officer) in his

amended complaint; thus, Bower was not a proper defendant.4 Moreover, there is

no basis for holding the City of Pensacola liable. Nettles’ amended complaint

does not allege that the Fourth Amendment violation occurred pursuant to any

policy or custom by the City of Pensacola, despite the magistrate judge’s warning

that his amended complaint had to allege as much. See Lewis v. City of West Palm

Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009) (stating a city may be held

liable under § 1983 only if “the injury caused was a result of municipal policy or

custom”). Accordingly, the district court did not err in dismissing Nettles’

amended complaint for failure to state a claim.

       AFFIRMED.



       4
          The magistrate judge instructed that all defendants be listed in the amended complaint,
and stated that the amended complaint would supercede the original complaint.

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