JAMES T. MOODY, District Judge.
Plaintiff Terry Wayne Johnson, Jr., filed this action regarding his arrest that occurred on August 24, 2013, after he was pulled over for operating a vehicle with an improper taillight. He alleges that he was then arrested and detained for nearly 48 hours for driving with a suspended license, even though his license was valid. He has filed a ten-count complaint
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the sufficiency of a complaint and not the ultimate merits of the suit. As the Court of Appeals has explained:
Carlson v. CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556).
Although the standard requires accepting well-pleaded facts as true, the court may disregard "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678; see also Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012) (stating that a court need not accept as true "legal conclusions or conclusionary allegations that merely recite a claim's elements"). The facts alleged in the complaint must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. 544, 555 (2007). In determining whether a plaintiff has done so, a district court should "draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
The court addresses the arguments made by the defendants, in the order defendants make them.
First, defendants argue that all claims made against Hammond (which include the official-capacity claims against defendants Gootee and Doughty) pursuant to § 1983 should be dismissed. Municipalities are not vicariously liable under § 1983 for misconduct committed by their employees; instead, it must be shown that the employees were carrying out governmental policy or custom. Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978); Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir. 2009). Hammond argues that plaintiff has pleaded only naked legal conclusions and "nowhere identifies what the policy is that supposedly caused these violations;" (DE # 17 at 4); then contradicts that argument by quoting the complaint's allegation that Hammond had a "policy and/or custom of authorizing, approving, and/or turning a blind eye to its employee's practicing/participating in impermissible profiling, and/or falsely arresting individuals," and asserting that this alternative phrasing shows that plaintiff has "no idea" what the City's policies are. (Id.) Hammond then cites Hollins v. City of Milwaukee, 574 F.3d 822, 827 (7th Cir. 2009), for the proposition that a pattern or custom requires facts showing more than one incident to establish a pattern or series (Id.); and last cites City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989), for the proposition that "`failure to train' claims survive dismissal only when the complaint alleges facts sufficient to make plausible that the municipality is deliberately indifferent to plaintiff's rights." (Id. at 5.)
Hollins and City of Canton do not stand for the points that Hammond asserts. City of Canton does not delineate pleading standards, it instead explains (in the context of a jury verdict on a failure-to-train claim) what a Plaintiff must prove to establish municipal liability for failure to train. Here, plaintiff pleads that Hammond authorized its police chief's knowing failure to train his officers not to engage in racial profiling and making false arrests. (Complaint, DE #13 at ¶¶ 86-89.) That is enough to allege deliberate indifference at this early pleading stage.
Similarly, although Hollins uses the word "allege," the discussion therein on the quantum of evidence necessary to establish a pattern or series is in regard to a summary judgment in the district court finding that plaintiff had not identified enough evidence to create an issue of fact. In the present case, the complaint pleads that Hammond had a policy or custom of approving racial profiling and false arrests, and that is enough: providing evidence of a number of incidents to show a pattern or series comes later. Swanson, 614 F.3d at 406 (reversing 12(b)(6) dismissal, merely alleging that defendants skewed assessment on account of plaintiff's race enough at pleading stage).
As to Hammond's assertion that plaintiff has not identified any municipal policy or custom in his pleading, as already stated, that is disproved by Hammond itself quoting the portion of plaintiff's complaint pleading that Hammond, through Chief Doughty, had a policy or custom of "authorizing, approving, and/or turning a blind eye" to racial profiling and false arrests." Hammond's argument is that plaintiff, by pleading that Hammond authorized or turned a blind eye to these practices, demonstrates that he has no idea what the City's policy or custom is, making a municipal liability claim implausible and requiring dismissal. This argument ignores the fact that pleading in the alternative is expressly permitted by Fed R. Civ. P. 8(d)(2), and nothing in Twombly, Iqbal and their progeny suggests that is no longer true. Pleading alternative statements of fact does not make any of them less plausible, and if one is sufficient, then the pleading is sufficient. See Whitney v. Guys, Inc., 700 F.3d 1118, 1130 (8th Cir. 2012). Thus, Hammond has not identified any reason to dismiss plaintiff's claims against it under § 1983.
Next, Chief Doughty argues that all § 1983 claims against him in his individual capacity should be dismissed. As he explains, in order for him to be liable, respondeat superior is not enough, plaintiff must plead that he was personally involved in the violation claimed, making him directly responsible. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Doughty argues that the sole fact pleaded as to him is that he is the Chief of Police, and that is not enough. The court disagrees with this description of the allegations of the complaint. At ¶ 28 of the complaint plaintiff pleads that his false arrest was the result of Chief Doughty's "policy and/or custom of authorizing, approving, and/or turning a blind eye" to his officers' impermissible profiling and false arrests; at ¶ 34 plaintiff alleges that Doughty had a policy of detaining individuals at the Lake County Jail, despite a lack of any probable cause; at ¶ 88 of the complaint, plaintiff alleges that Doughty knowingly failed to instruct, supervise and discipline Officer Gootee to prevent him from impermissibly profiling and making false arrests of African-American individuals.
A supervisor can be personally liable under § 1983 if he or she "know[s] about the conduct and facilitate[s] it, approve[s] it, condone[s] it, or turn[s] a blind eye for fear of what they might see." Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988). Although the Seventh Circuit has indicated that the standards for supervisory liability are "murky" after Iqbal, it has also commented that Iqbal has not changed the rule that supervisors can be individually liable for wrongs they direct or authorize. Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011). Plaintiff here has pleaded that Chief Doughty authorized and/or turned a blind eye to Officer Gootee's acts. This is still sufficient to withstand a motion to dismiss for failure to state a claim.
The defendants then turn their attention to the state-law torts pleaded against Officer Gootee and Chief Doughty personally. Under Indiana's tort clams act:
Ind. Code § 34-13-3-5(b). At ¶ 53 of his complaint pleading false arrest and imprisonment (incorporated by reference in the remaining counts), plaintiff pleads that Officer Gootee was acting within the scope of his employment. At ¶ 54, he pleads alternatively that Officer Gootee was acting outside the scope of his employment. Throughout the complaint plaintiff consistently pleads that Doughty was acting as the Chief of Police.
Defendants next argue that to the extent plaintiff is seeking monetary damages for alleged violations of the Indiana Constitution (mainlyin Counts III and VI of the complaint), those claims should be dismissed. At present, Indiana has declined to recognize a civil action for monetary damages for a violation of the Indiana Constitution when tort remedies are available. Ball, 760 F.3d at 645. 636, 644-45 (7th Cir. 2014). Plaintiff did not address this argument in his response, and whether or not that is an intentional concession, the court agrees with defendants. All claims seeking monetary damages for violations of the Indiana Constitution are dismissed.
Defendants also argue that plaintiff's claims under the Indiana Constitution, even if only seeking equitable relief, should be dismissed for a number of different reasons. As to plaintiff's claim for racial discrimination under Article I, Section 1 (Count VII), defendants argue the claim is implausible because based solely on plaintiff's "belief" that discrimination was the cause for Officer Gootee's actions, and belief alone is not sufficient, citing Johnson v. Chibicki, No. 11 C 794, 2011 WL 5868010, at *3 (N.D. Ill. Nov. 21, 2011).
Next defendants argue that ¶ 44 of plaintiff's complaint, which recites that his action is authorized by the open courts clause, Article 1, Section 12, should be dismissed to the extent it is making a claim based in that clause, because no facts are pleaded suggesting that plaintiff was denied access to the courts. Plaintiff has not responded to the argument. Any such claim is dismissed.
In ¶ 43 of his complaint plaintiff alleges that when Officer Gootee arrested him, he treated him with "unnecessary rigor and force by, but not limited to, placing handcuffs on the Plaintiff, thereby violating Article I, Section 15 of the Indiana Constitution." (DE #13 at ¶ 43.) Defendants argue that this allegation does not constitute the type of extreme conduct contemplated by the "unnecessary rigor" clause. In affirming dismissal of a complaint alleging that plaintiff's rehabilitative needs were not met while in prison, the Indiana Supreme Court stated:
Ratliff v. Cohn, 693 N.E.2d 530, 541 (Ind. 1998) (internal citations omitted).
Plaintiff's response is that defendants' argument is "extremely premature" and should be made on summary judgment. The court disagrees. All plaintiff has alleged is that he was arrested, placed in handcuffs, and confined in the county jail. There are no facts suggesting extreme conduct against him, which would nudge this claim from the speculative e to the plausible. It is dismissed.
Next, Hammond returns to plaintiff's tort claims, and argues that other than false arrest and imprisonment, it is immune:
(DE # 17 at 10-11.) In Parish, this court considered this law-enforcement immunity provision, and determined that "add ons" (such as IIED) to the torts of false arrest and false imprisonment are not permitted because:
Parish v. City of Elkhart, No. 3:07-CV-452, 2010 WL 4054271, at *3 (N.D. Ind. Oct. 15, 2010) Thus, Hammond argues that because Officer Gootee, at the time of his actions in this case, was enforcing Indiana statutes governing driving without a valid license and having proper vehicle taillights, both he and Hammond are immune. As the court has already held above that Officer Gootee is immune from personal liability pursuant to Ind. Code § 34-13-3-5(b) because he was acting within the scope of his employment, the crux of this argument pertains to the official capacity claim; that is, whether Hammond is immune.
Plaintiff's response is that Officer Gootee is not immune, because at the moment he arrested plaintiff without probable cause to do so he was no longer enforcing Indiana law, an argument rejected in Parish. "Notably, this immunity applies even where the City of Elkhart's employees conduct is contrary to law." Id. at 2. More importantly, however, and addressing the real issue, Hammond's immunity, plaintiff argues that Parish does not "pertain to the issues at hand." (DE # 22 at 13.) Instead, plaintiff implies that Parish is no longer good law due to a more recent case from the Southern District of Indiana, Bowens v. City of Indianapolis, No. 1:13-CV-00072-DML-SE, 2014 WL 4680662 (S.D. Ind. Sept. 19, 2014): "[T]he Bownens [sic] court shot down the very argument (no add on torts) that the Defendants attempt to slip by this Court today."(DE # 22 at 13.)
Bowens actually did no such thing, explaining that Parish correctly determined that "add-on" torts that arise from common law are barred by the law-enforcement immunity provision, but if the plaintiff can point to a state statutory provision that serves as the foundation of the claim (for example, the Indiana statute governing use of force in making an arrest, Ind. Code § 35-41-3-3), conduct violating the statute is not immunized, no matter the legal theory used. Bowens, at *7. In other words, the scope of the immunity is "narrowed by the legislature's implementation of other statutes." Parish, at * 4. Here, as in Parish and not like in Bowens, plaintiff is adding common-law tort claims, not separate statutory claims, onto his false arrest and imprisonment claims. As a result, Hammond is immune pursuant to Ind. Code 34-13-3-3(8). Because of this immunity, it is not necessary to address Hammond alternative argument that plaintiff's humiliation and IIED claims are not plausible.
Finally, after the motion herein was fully briefed, plaintiff moved to amend his complaint to add "Jane Doe, Dispatcher," as a defendant because she "may be involved." (DE # 39.) (Emphasis added.) The only factual allegation pertaining to her in the proposed second amended complaint is at ¶ 18, that Doe "may have supplied Officer Gootee with the information that the Plaintiff's driver's license was suspended." (DE # 39-1.) (Emphasis added.) This is completely speculative, rather than being a factual allegation, which means that nothing which follows states a plausible claim against Doe. Dismissal would result from a new Rule 12(b)(6) motion, which defendants would undoubtedly file as they oppose (DE #40) the motion for leave to amend. In addition, Doe would be entitled to the same immunity in her personal capacity as explained herein in regard to Officer Gootee. Moreover, if Doe, as a dispatcher, did communicate to Gootee that plaintiff's license was suspended, she did so acting in her capacity as a dispatcher and (allegedly) pursuant to Hammond's policy to engage in racial profiling and make false arrests. (DE #39-1 at ¶ 54) Because Hammond is already a defendant, an official-capacity claim against Doe would add no avenue of relief to the action that does not already exist. Plaintiff's proposed amendment is both redundant and futile. Although Fed. R. Civ. P. 15 requires leave to amend to be freely given when justice requires, under circumstances such as these leave is properly denied. See Indiana Funeral Directors Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003).
For the foregoing reasons, plaintiff's motion for leave to amend (DE # 39) is
