Ford v. Sessoms et al
Filing
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OPINION AND ORDER GRANTING 2 MOTION for Leave to Proceed In Forma Pauperis by Plaintiff Toney Ford, Sr. Plaintiff GRANTED leave to proceed on Count II of his Complaint against Defendant Derek Sessoms. All other counts are DISMISSED WITHOUT PREJUDIC E. All Defendants (except for Derek Sessoms) are DISMISSED. Clerk DIRECTED to forward to Plaintiff a blank USM-285 form. Plaintiff GRANTED until 12/5/2014 to either return the completed USM-285 form or notify the Court that he would like to have the Clerk issue the Summons to him so that he may effect service. Plaintiff CAUTIONED if he does not respond by the deadline, this case will be dismissed. If the USM-285 form is returned, the United States Marshal's Service is DIRECTED to effect service of process on Defendant Derek Sessoms. Defendant Derek Sessoms ORDERED to respond as outlined in Order. Signed by Chief Judge Philip P Simon on 11/20/14. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DR. TONEY FORD, SR.,
Plaintiff,
vs.
DEREK SESSOMS, DAVID GILBERT,
JAMES LOFTIN, WAYNE SEYBOLD,
DON BATCHELOR, FRED TROXXEL,
HENRY SMITH, MADONNA FRENCH,
JOCELYN WHITTAKER, FRED
THOMPSON JR., BRAD LUZZADER
JIM BRUNER, MARION (IN) POLICE
DEPARTMENT, DAVID PENTICUFF
AND MISHELE WRIGHT,
Defendants.
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CAUSE NO. 1:14-CV-320 PS
OPINION AND ORDER
Dr. Toney Ford, Sr., a pro se plaintiff, seeks leave to file a complaint without payment of
the ordinarily required filing fee. His Petition to Proceed without Pre-Payment of Fees and Costs
[DE 2] is a sworn declaration supporting his financial eligibility for the request. Nonetheless,
under 28 U.S.C. §1915A, leave to file without the payment of the filing fee subjects Ford’s
complaint to a screening review, and to dismissal if I determine that the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief.
Ford’s pleading is titled “Complaint for Civil Rights Violations, False Arrest, Wrongful
Prosecution, and Libel and Slander.” [DE 1.] Defendants include members of the Marion,
Indiana Police Department -- Chief of Police David Gilbert, Lieutenant James Loftin and Officer
Derek Sessoms. The mayor of Marion, Wayne Seybold, is named, along with eight members of
the City Council – Don Batchelor, Fred Troxxel, Henry Smith, Madonna French, Jocelyn
Whittaker, Brad Luzzader, Paul Thompson Jr., and Jim Bruner. Editor David Penticuff and
reporter Mishele Wright of the Chronicle Tribune newspaper of Marion are also defendants.
Ford’s claims arise from a strange incident in which he alleges that he was followed by
what turned out to be a police car, causing him to have a traffic accident, after which he was
arrested on unexplained charges and unreasonably denied release on bond. Ford further
complains that in the aftermath of these events, the Marion Chronicle Tribune published an
article containing “false accusations and other slanderous and misleading statements” concerning
the matter, so as cover up the improper actions of the police and public officials involved. [DE 1
at ¶35.] Ford’s factual allegations do not identify the driver of the car that allegedly caused Ford
to have an accident, nor do they name the police officers who arrived on the scene thereafter and
placed him under arrest. [DE 1 at ¶29.] Despite this gap in the story, Count I attributes Ford’s
“initial harassment, subsequent arrest and unlawful detention” to “Defendant Sessoms or those
acting on behalf of Defendant Sessoms.” [DE 1 at ¶44].
To survive dismissal, the complaint must state a claim for relief that is plausible on its
face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 603. Thus, the
plaintiff “must do better than putting a few words on paper that, in the hands of an imaginative
reader, might suggest that something has happened to her that might be redressed by the law.”
Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). Nevertheless, I must bear in mind
that “[a] document filed pro se is to be liberally construed, and a pro se complaint, however
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inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Counts I and III purport to be claims for violations of Ford’s free exercise rights under
the first amendment, brought under 42 U.S.C. §1983. The allegations of Count I refer to
defendant Sessoms, a Marion police officer, and unspecified “others.” [DE 1 at ¶¶45, 46.] The
actions complained of are “initial harassment, subsequent arrest and unlawful detention, cruel
and unusual fine, [and] libelous and slanderous posting with the local media.” [Id. at ¶44.]
Count III names the Mayor, the Police Chief, Lieutenant Loftin, and the eight City Council
members, and charges them with vicarious liability for the unlawful acts of defendant Sessoms.
The free exercise clause of the first amendment is “an absolute prohibition against
governmental regulation of religious beliefs.” Bob Jones Univ. v. United States, 461 U.S. 574,
603 (1983). “Free-exercise problems usually rise when a law, regulation, or some action of a
public official interferes with a religiously motivated practice, forbearance, or other conduct.”
Korte v. Sebelius, 735 F.3d 654, 676 (7th Cir. 2013). Ford’s allegations do not disclose any
activity on his part in the nature of religious activity that would bring into play the protections of
the free exercise clause. Even the most generous construction does not yield a plausible claim
on the allegations and theory set forth in Counts I and III of Ford’s complaint, which will be
dismissed without prejudice.
Counts II and IV have a similar relationship with one another. Count II asserts that
Ford’s equal protection rights were violated when Sessoms “or those acting on behalf of
Defendant Sessoms” discriminated against Ford because of his race and nationality. [DE 1 at
¶49.] The specific challenged conduct referred to is Ford’s “unlawful arrest and detention.” [Id.]
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Count IV asserts the vicarious liability of the other police and municipal official defendants for
Sessoms’ equal protection violations, by their authorization of and acquiescence in that conduct,
and due to a custom and policy of deliberate indifference to Ford’s constitutional rights. Count
II adequately pleads an equal protection claim against Sessoms, if the complaint is generously
construed to allege that Sessoms was one of the police officers who acted to harass, arrest and
detain Ford and did so based on his race or nationality.
The vicarious liability claim against the other defendants in Count IV is on shakier
ground. “Because there is no vicarious liability under Section 1983, these defendants could be
liable only if they personally did something that violated [plaintiff’s] rights.” Miller v.
Harbaugh, 698 F.3d 956, 960 (7th Cir. 2012). “Section 1983 limits liability to public employees
‘for their own misdeeds, and not for anyone else’s.’” Hoban v. Godinez, 502 F.3d Appx. 574,
578 (7th Cir. 2012), quoting Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). The
complaint contains no factual allegations of the personal involvement of Mayor Seybold, Chief
Gilbert, Lt. Loftin or the city council members in the arrest and detention of Ford, but only that
“[d]espite knowledge and adequate opportunity to learn of the misconduct of [Sessoms] and to
remedy such misconduct,” they “adopted, approved, and ratified the acts, omissions, and
misconduct of Defendant Sessoms.” [DE 1 at ¶41.]
Under Monell v. Dep’t of Social Services, 436 U.S. 658, 694 (1978), a violation of
someone’s rights resulting from a municipal custom or policy may result in the city’s liability.
But a municipal custom or policy does not somehow transfer liability to other individual
defendants who had no personal role in the alleged violation. “Public officials do not have a
free-floating obligation to put things to rights.” Burks, 555 F.3d at 595. A “contention that any
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public employee who knows (or should know) about a wrong must do something to fix it is just
and effort to evade, by indirection, Monell’s rule that public employees are responsible for their
own misdeeds but not for anyone else’s.” Id. at 596. The absence of allegations that the mayor,
the police chief, lieutenant, and the members of the city council took any actions that caused or
contributed to the violation of Ford’s rights means that the claim of an equal protection violation
against these defendants lacks facial plausibility, because the there’s no reasonable inference
from the pleading that they could be liable to Ford. Count IV will be dismissed without
prejudice.
Count V of the complaint is labeled “Violations of Title VI of the Civil Rights Act of
1964" and invokes 42 U.S.C. §2000d, which prohibits racial discrimination in programs
receiving federal financial assistance. The allegations of the complaint do not identify any
program receiving federal financial assistance. Count V contains references to the privileges and
immunities clause [DE 1 at ¶66] and to a failure to train defendant Sessoms and other members
of the police department [Id. at ¶68], which are conclusions unsupported by facts and don’t
support a facially plausible claim of any kind, much less one under Title VI. Count V will be
dismissed without prejudice.
The remaining five counts of the complaint, Counts VI through IX (but with two
different Count VIIIs), are all claims under state law: breach of implied contract, breach of
implied covenant of good faith and fair dealing, promissory estoppel, wrongful prosecution, libel
and slander. There is no federal question jurisdiction over these claims, and it does not appear
that diversity jurisdiction exists over them, given that plaintiff Ford and all the defendants are
citizens of Indiana. My jurisdiction over these claims would have to be supplemental
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jurisdiction under 28 U.S.C. §1367 on the ground that these claims are sufficiently related to the
remaining federal claim.
But I can decline to exercise supplemental jurisdiction for a number of reasons, several of
which I find applicable here. I can decline to exercise supplemental jurisdiction over claims that
raise novel or complex issues of state law. See §1367(c)(1). Applying legal theories of implied
contract, the implied covenant of good faith and fair dealing, and promissory estoppel against
municipal officers and officials arising out of a disputed arrest and detention certainly presents
novel issues of state law that are at least potentially complex. Moreover, contending with five
different state law theories against a multiplicity of municipal defendants plus the libel and
slander claims that involve the newspaper defendants would “substantially predominate” over
the sole remaining federal claim – the equal protection claim against defendant Sessoms – that
will otherwise survive this screening. On that basis, §1367(c)(2) also supports my decision to
decline to exercise supplemental jurisdiction over Counts VI through IX, which will be
dismissed without prejudice.
The case will proceed on Count II against defendant Sessoms. Because Ford is
proceeding in forma pauperis, the United States Marshal will serve defendant Sessoms without
cost. However, Ford has not submitted the required USM-285 form. Though Ford is not
obligated to have the United States Marshal serve defendant Sessoms, if he wants them to do so,
he must properly complete and file one of these forms. Without it, the U.S. Marshals Service
cannot effect service of process in this case.
For these reasons, the court:
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(1) GRANTS plaintiff Ford’s Petition to Proceed without Pre-Payment of Fees and Costs
[DE 2];
(2) GRANTS plaintiff leave to proceed on Count II of his complaint against defendant
Sessoms;
(3) DISMISSES all the other counts without prejudice, and DISMISSES all defendants
other than Sessoms;
(4) DIRECTS the clerk to send Ford a blank USM-285 form;
(5) GRANTS Ford to and including December 5, 2014, to either return the completed
form or notify the court that he would like to have the clerk issue the summons to him so that he
can effect service by some other method permitted by Federal Rule of Civil Procedure 4;
(6) CAUTIONS Ford that if he does not respond by the deadline, this case will be
dismissed without further notice;
(7) in the event the USM-285 is returned DIRECTS the United States Marshals Service
to effect service of process on defendant Sessoms, pursuant to 28 U.S.C. § 1915(d); and
(8) ORDERS defendant Sessoms to respond, as provided for in the FEDERAL RULES OF
CIVIL PROCEDURE, only to the claim for which the plaintiff has been granted leave to proceed in
this screening order.
SO ORDERED.
ENTERED: November 20, 2014.
/s/ Philip P. Simon
Philip P. Simon, Chief Judge
United States District Court
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