Hendricks v. City of Griffith et al

Filing 33

OPINION AND ORDER: GRANTING IN PART AND DENYING IN PART 22 MOTION to Dismiss by Defendants Jeffrey Beck, Curt Burrow, City of Griffith, Jeff Gang, Michael Gauler, Robert Guiterrez, Chris Herrmann, Keith Hojnicki, Richard Merschantz, Jacob Schoo n, Jim Sibley. The Partial Motion to Dismiss is GRANTED as to: Counts I-III as to Defendant Officers Chris Hermann and Jim Sibley and those claims against Defendants Hermann and Sibley are DISMISSED WITH PREJUDICE; Count IV is DISMISSED WITH PREJ UDICE as to Defendant Officers Keith Hojnicki, Chris Herrmann, Michael Gauler, Jeffrey Beck, Robert Guiterrez, Richard Merschantz, Jacob Schoon, Jeff Gang, Curt Burrow, and Jim Sibley IN THEIR INDIVIDUAL CAPACITY; and Count V is DISMISSED WITH PREJU DICE in its entirety. The Partial Motion to Dismiss is DENIED as to Counts I-III against Defendant Officer Robert Guiterrez and those claims remain pending against Officer Guiterrez. Additionally, the Partial Motion to Dismiss is DENIED AS MOOT as to a Monell claim against the Town of Griffith, since that claim was not pled in the complaint. Signed by Judge Rudy Lozano on 3/21/2018. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DAMONTEL HENDRICKS,
Plaintiff,
vs.
CITY OF GRIFFITH,
et al.,
Defendants.

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)
)
)
)
)
)
)
)
)

Cause No. 1:17-CV-412

OPINION AND ORDER
This matter is before the Court on Defendants’ Partial Motion
to Dismiss, filed by Defendants, Town of Griffith (incorrectly
named City of Griffith), Officers Keith Hojnicki, Chris Herrmann,
Michael

Gauler,

Jeffrey

Beck,

Robert

Guiterrez1,

Richard

Merschantz, Jacob Schoon, Jeff Gang, Curt Burrow, and Jim Sibley,
on December 12, 2017 (DE #22).

For the reasons set forth below,

the Partial Motion to Dismiss (DE #22) is GRANTED IN PART and
DENIED IN PART.

The Partial Motion to Dismiss is GRANTED as to:

Counts I-III as to Defendant Officers Chris Hermann and Jim Sibley
and

those

1

claims

against

Defendants

This defendant’s last name
case caption and the complaint.
in their briefs as “Gutierrez.”
in the complaint, but notes that
defendant.

Hermann

and

Sibley

are

is spelled “Guiterrez” in the
Later, the parties refer to him
The Court will use the spelling
both spellings refer to the same

DISMISSED WITH PREJUDICE2; Count IV is DISMISSED WITH PREJUDICE as
to Defendant Officers Keith Hojnicki, Chris Herrmann, Michael
Gauler, Jeffrey Beck, Robert Guiterrez, Richard Merschantz, Jacob
Schoon, Jeff Gang, Curt Burrow, and Jim Sibley IN THEIR INDIVIDUAL
CAPACITY3; and Count V is DISMISSED WITH PREJUDICE in its entirety.
The Partial Motion to Dismiss is DENIED as to Counts I-III against
Defendant Officer Robert Guiterrez and those claims remain pending
against Officer Guiterrez.

Additionally, the Partial Motion to

Dismiss is DENIED AS MOOT as to a Monell claim against the Town of
Griffith, since that claim was not pled in the complaint.

BACKGROUND
Plaintiff, Damontel Hendricks, claims that officers of the
Griffith Police Department used excessive force in arresting him
and committed a false arrest on October 16, 2015.

Hendricks has

sued the City of Griffith, and Officers Keith Hojnicki, Chris
Herrmann, Michael Gauler, Jeffrey Beck, Robert Guiterrez, Richard
Merschantz, Jacob Schoon, Jeff Gang, Curt Burrow, and Jim Sibley
“individually and as [] agents.”

(DE #1 at 1.)

The complaint alleges federal violations of 42 U.S.C. § 1983

2

Counts I-III remain pending against the other officer
defendants.
3

Count IV remains pending against the Town of Griffith based
upon the claims against the officers in their official capacity.
2

for excessive force (Count I); false arrest (Count II), and failure
to intervene (Count III). The complaint also alleges Indiana state
law claims for false arrest (Count IV); and assault and battery
(Counts V and VI).
On December 12, 2017, the Defendants filed the instant partial
motion to dismiss (DE #22) pursuant to Federal Rule of Civil
Procedure 12(b)(6).
individual

capacity

Defendants request: dismissal of the federal
claims

against

Officer

Hermann,

Officer

Guiterrez and Officer Sibley in Counts I-III due to lack of
personal involvement; dismissal of Counts IV and V as to all named
officers in their individual capacities based upon the Indiana Tort
Claims Act, I.C. §34-13-3-5; and to the extent Hendricks is seeking
any Section 1983 claims against the Town of Griffith, dismissal
under the Monell doctrine.
Hendricks filed a response on January 22, 2018 (DE #31).
Hendricks argues that it has adequately pled that the officers were
involved in the false arrest and use of excessive force, that
Defendants are not afforded immunity under the Indiana Tort Claims
Act for the claims of false arrest and assault and battery, and
that Plaintiff did not plead a Monell count or a section 1983 claim
against the Town of Griffith.
Defendants filed a reply on January 30, 2018 (DE #32).
Consequently,

the

motion

is

fully

adjudication.
3

briefed

and

ready

for

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to
be dismissed if it fails to “state a claim upon which relief can be
granted.”

Fed. R. Civ. P. 12(b)(6).

Allegations other than fraud

and mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a), which requires a “short and
plain statement” that the pleader is entitled to relief. Maddox v.
Love, 655 F.3d 709, 718 (7th Cir. 2011).
In order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face’.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must
be accepted as true, and all reasonable inferences from those facts
must be resolved in the plaintiff’s favor.
521 F.3d 686, 692 (7th Cir. 2008).

Pugh v. Tribune Co.,

However, pleadings consisting

of no more than mere conclusions are not entitled to the assumption
of truth.
conclusions

Iqbal, 556 U.S. at 678-79.
couched

as

factual

This includes legal

allegations,

as

well

as

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.”
Twombly, 550 U.S. at 555).

Facts
4

Id. at 678 (citing

Hendricks alleges that on October 16, 2015, at approximately
4:00 p.m., he left a friend’s house located on North Wood Street,
Griffith, Indiana.

(Compl. at ¶ 14.)

Upon arriving at his car,

Hendricks learned the battery was dead.

(Id. at ¶ 15.)

While

Hendricks waited for help, Mr. Dillon entered the car and sat in
the back seat, and Mr. Richards entered the car and sat in the
front passenger seat. (Id. at ¶¶ 16-17.) Richards brought a large
clear bag of marijuana and, upon information and belief, a bottle
of Alprazolam (commonly known as Xanex) into the car, and put the
marijuana on the floor.

(Id. at ¶¶ 19, 21.)

Hendricks had no

prior knowledge that Richards or Dillon used marijuana or that they
were

planning

marijuana.

to

enter

his

car

while

in

the

possession

of

(Id. at ¶ 56.)

At about 4:11 p.m., two patrol cars pulled up in front and
behind of Hendricks’ vehicle, with overhead lights flashing.
at ¶ 22.)

(Id.

Shortly thereafter, five to six additional patrol

vehicles arrived at the scene.

(Id. at ¶ 30.)

There were

approximately eight to ten officers present at the scene.

Id.

Officer Hojnicki approached the car, and asked all of the
passengers in the car for identification, including Hendricks.
(Id. at ¶¶ 23-25.)

Plaintiff claims that he gave Officer Hojnicki

a permit by mistake at first, but then complied and gave Hojnicki
his license.

(Id. at ¶¶ 26-28.)

Officer Hojnicki then informed Hendricks that he was being
5

placed under arrest.

(Id. at ¶ 29.)

Hendricks asked Officer

Hojnicki why he was under arrest, and was informed that he was
being arrested for marijuana possession.

(Id. at ¶ 31.)

Richards

told Officer Hojnicki that the drugs and paraphernalia were his,
but

Officer

Plaintiff.

Hojnicki

ignored

the

information

and

arrested

(Id. at ¶ 32.)

Officer Hojnicki told Hendricks, “If you don’t get out of the
car in ten seconds, I’m going to have to use brutal force.”
at ¶ 36.)

(Id.

Despite being afraid for his life, Hendricks began to

exit the vehicle.

(Id. at ¶¶ 34-37.)

Officer Hojnicki did not

allow Hendricks to fully exit the car before grabbing him and
throwing

him

Plaintiff.

to

the

ground,

then

he

handcuffed

and

kicked

(Id. at ¶¶ 38, 39.)

Then, Hendricks alleges that Officer Hojnicki dragged him
behind the patrol car so he would be out of sight from the patrol
car camera, and continued to kick Hendricks while he lay on the
ground.

(Id. at ¶¶ 40, 41.)

An officer at the scene, including

but not limited to, Hermann, Gauler, Beck, Guiterrez, Merschantz,
Schoon, Gang, Burrow, and Sibley, Hojnicki, Merschantz, or Beck,
allegedly told Officer Hojnicki to “Do it behind the car.” (Id. at
¶ 43.) Officer Hojnicki pushed his forearm into Hendricks’ throat,
strangling him.

(Id. at ¶ 42.)

Additionally, Hendricks alleges that Officer Beck tazed him
twice, once in the back and once in the leg.
6

(Id. at ¶ 45.)

Officer Merschantz also pepper sprayed Hendricks.

(Id. at ¶ 46.)

Hendricks contends that Officers Hojnicki, Herrmann, Gauler, Beck,
Guiterrez,

Merschantz,

Schoon,

Gang,

Burrow

and

Sibley

all

proceeded to use excessive force, causing him significant injury.
(Id. at ¶ 47.)
Hendricks claims that at no point during the incident did he
resist arrest, and that even though a box cutter was later removed
from his person, he did not reach for or threaten any officer with
the box cutter.

(Id. at ¶¶ 48-51.)

Hendricks alleges that he was

not frisked or searched before the alleged assault occurred.
at ¶ 52.)

(Id.

He also asserts that his Miranda rights were not read to

him at any point during the incident.

(Id. at ¶ 54.)

Hendricks alleges that he was taken to Community Hospital in
Munster, Indiana, via ambulance.

(Id. at ¶ 59.)

There, he was

admitted to the Neuro IMCU and diagnosed with a head injury, facial
contusion, and right orbital fracture.

(Id. at ¶ 61.)

As a result

of the incident, Hendricks claims he now suffers from PTSD, vision
problems,

difficulty

participating

in

society,

arm

and

wrist

injuries, difficulty walking, difficulty participating in physical
activity, migraines, headaches, a traumatic brain injury, major
anxiety and suicidal thoughts.

(Id. at ¶ 70.)

All criminal charges against Plaintiff relating to the events
of October 16, 2015, were dismissed on November 15, 2016.
¶ 69.)
7

(Id. at

Counts I-III
Hendricks’ Complaint states federal claims under section 1983
against all the individual officer defendants in Count I (excessive
force),

Count

intervene).

II

(false

arrest),

and

Count

III

(failure

to

Although each count lists the names of each defendant

officer, it does not specifically refer to the actions/inactions of
each individual officer - all ten are lumped together.
Defendants

move

to

dismiss

the

claims

against

Defendant

Officers Herrmann, Guiterrez, and Sibley due to their lack of
personal involvement in the alleged deprivations.

Hendricks does

not address the arguments regarding Officers Hermann and Sibley in
his memorandum in opposition; therefore, he has waived any argument
that these claims are valid.

See Haywood v. Novartis Pharms.

Corp., No. 2:15-CV-373, 2016 WL 5394462, at *5 (N.D. Ind. Sept. 27,
2016)(finding failure to respond to an argument in a motion to
dismiss results in waiver); see also Bonte v. U.S. Bank, N.A., 624
F.3d 461, 466 (7th Cir. 2010).

Therefore, the claims against

Officers Hermann and Sibley are dismissed.
Next, the Court must address the claims against Officer
Guiterrez.

An individual may bring a cause of action for “the

deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” under 42 U.S.C. § 1983. Padula v. Leimbach,
740 F.Supp.2d 980, 987 (N.D. Ind. 2010).

Liability under Section

1983 attaches if the defendant “personally participated in or
8

directly caused the deprivation of his or her rights.”

Id. at 988.

If a section 1983 claim involves multiple defendants, the plaintiff
must demonstrate that each individual defendant violated his or her
constitutional rights. Higdon v. Wells Cnty. Sheriff’s Office, 426
F.Supp.2d 854, 863 (N.D. Ind. 2006).

Allegations of actual

knowledge or acquiescence, personal direction, or acting or failing
“to act with a deliberate or reckless disregard of the plaintiff’s
constitutional

rights”

demonstrate

the

personal

involvement

requirement for liability. Id. (quotation omitted). Additionally,
if an officer had a realistic opportunity to stop another officer
from violating a plaintiff’s rights and fails to do so, such
failure creates liability for the officer who failed to intervene.
Id.
Defendants argue, without citing to anything in the complaint
or any other evidence, that Officer Guiterrez was not personally
involved in the alleged constitutional deprivations because he
arrived at the scene after Hendricks was already secured in
handcuffs.

Generally, a motion under Rule 12(b)(6) can be based

only on the complaint itself, documents attached to the complaint,
documents that are critical to the complaint and referred to in it,
and

information

that

is

subject

to

proper

judicial

notice.

Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012);
see Fed. R. Civ. P. 10(c).

Even if the Court were to consider this

information, just because Officer Guiterrez arrived after Hendricks
9

was in handcuffs does not automatically mean that Officer Guiterrez
did not commit any excessive force himself or have the opportunity
to intervene in the use of excessive force by other officers.

The

complaint alleges that after Hendricks was handcuffed, he was taken
behind the patrol car and kicked, beaten, tazed, pepper sprayed,
and falsely arrested.

(Compl. ¶¶ 39-47.)

“A plaintiff, however, has much more flexibility in opposing
a Rule 12(b)(6) motion and in appealing a dismissal . . . a party
opposing a Rule 12(b)(6) motion may submit materials outside the
pleadings to illustrate the facts the party expects to be able to
prove.”

Geinosky, 675 F.3d at 745 n.1; see also Early v. Bankers

Life and Cas. Co., 959 F.2d 75, 78-9 (7th Cir. 1992) (reversing
dismissal finding plaintiff is free to assert new facts in brief
opposing

motion

to

dismiss);

Roe

v.

Bridgestone

Corp.,

492

F.Supp.2d 988, 1007 (S.D. Ind. 2007) (“Such documents are not
evidence, but they provide a way for a plaintiff to show a court
that there is likely to be some evidentiary weight behind the
pleadings the court must evaluate.”).
In fact, the Seventh Circuit suggested that in light of Iqbal
and Twombly, it might actually be “prudent” for a plaintiff to
assert

new

illustrative

facts

in

opposition

purposes.

to

Geinosky,

a

motion

675

F.3d

to

dismiss

at

745

for
n.1.

Additionally, it is recognized that a “complaint may not be
dismissed unless it is impossible to prevail under any set of facts
10

that could be proved consistent with the allegations . . . That is
why we have held that a plaintiff may supplement the complaint with
factual narration in an affidavit or brief.”

Albiero v. City of

Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (citations omitted).
In this case, Hendricks claims he “has a good faith basis,
based on his investigation, review of FOIA materials, and the
actual event he witnessed, to believe that Defendant Officer
Guiterrez responded to the scene of the subject incident before the
Defendant Officers ceased using excessive force against him and, in
fact, was complicit in the use of excessive force and/or used such
force himself.” (DE #31 at 5.)

Moreover, the complaint alleges

that Officer Guiterrez was present when one of the officers told
Officer Hojnicki to “Do it behind the car,” that Guiterrez was
present when the officers kicked, hit, and assaulted him, and that
Guiterrez used excessive force causing Hendricks injury. (DE #1 at
¶¶ 43-47.)

“Police officers may be liable where they have a

realistic opportunity to step forward and prevent a fellow officer
from violating a plaintiff’s rights by using excessive force but
fail

to

do

so.”

Edwards

v.

Two

Unknown

Male

Chicago

Police

Officers, 2007 WL 671067, at *2 (S.D. Ind. 2007); see also Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994).

In this case, Hendricks

has sufficiently pled allegations against Officer Guiterrez that he
was involved in the false arrest and excessive force/failure to
intervene.

Based upon the allegations in the complaint and the
11

facts Hendricks intends to set forth in this case, this Court
cannot say that it “is impossible to prevail under any set of facts
that could be proved consistent with the allegations.”

Albiero,

122 F.3d at 419 (quotation omitted).
Defendants cite Kim v. Barnes, No. 1:05-cv-1616-SEB-JMS, 2007
WL 671067, at *3-4 (S.D. Ind. Feb. 28, 2007), and Edwards v. Two
Unknown Male Chicago Police Officers, 623 F.Supp.2d 940, 950 (N.D.
Ill. 2009), for the proposition that an officer cannot be held
liable for the arrest and excessive force if they arrive after the
suspect is handcuffed.
easily distinguishable.

(DE #23 at 7.)

However, these cases are

Kim was decided on summary judgment (not

at the motion to dismiss stage like this case), and there was
evidence in the record that “after Kim was in handcuffs, [the
defendant officer] arrived on the scene.”
*3.

Kim, 2007 WL 671067, at

The officer in Kim did not touch the plaintiff, and did not

observe any other police officer mistreat the plaintiff during or
after her arrest. Id. Similarly, in Edwards, summary judgment was
granted for certain officers at the summary judgment stage on a
failure to intervene claim where the plaintiff failed to present
any evidence about what the officers were doing or what they saw,
and there was no evidence showing the officers knew that excessive
force was being used or had a realistic opportunity to intervene to
prevent it.

Edwards, 623 F.Supp.2d at 950.

These cases lie in

sharp contrast to the situation here - at the dismissal stage,
12

where Hendricks has alleged that Officer Guiterrez witnessed and
used excessive force, and that he was present for the continuing
excessive force and false arrest that occurred after Hendricks was
placed into handcuffs and he allegedly failed to intervene.
Consequently, the motion to dismiss Officer Guiterrez is denied.

Counts IV and V
Defendants

argue

the

state

law

claims

against

the

ten

defendant officers in their individual capacities in Count IV
(false

arrest)

and

Count

V

(assault

and

battery)

should

be

dismissed because the Indiana Tort Claims Act (“ITCA”), § 34-13-35, affords immunity to the defendant officers in their individual
capacities against the state law claims.
The

complaint

defendant

officers

alleges
were

that

at

“employed

all

by

relevant

the

times,

Defendant

City

the
of

Griffith” and that at all relevant times “they were acting under
color of law and in the course of their employment as Griffith
Police Officers.”

(DE #1 at ¶ 12.)

Section 34-13-3-5(b) provides

in pertinent part that, “[a] lawsuit alleging that an employee
acted within the scope of the employee’s employment bars an action
by the claimant against the employee personally.”
13-3-5(b).

Ind. Code § 34-

In other words, a plaintiff cannot “sue a governmental

employee personally if the complaint, on its face, alleges that the
employee’s acts leading to the claim occurred within the scope of
13

employment.”

Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind.

2003).
As to Count IV, Plaintiff has brought a false arrest claim
under Indiana state law against all of the individual officers and
the Town of Griffith.

Because the complaint alleges that the

officers were operating under the color of law and in the course of
employment, the officers cannot be personally liable for false
arrest, and the Town of Griffith should be the sole defendant on
the state law claim of false arrest under respondeat superior. See
City of Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind. Ct. App.
1999) (“Under the doctrine of respondeat superior, an employer is
liable for the acts of its employees which were committed within
the course and scope of their employment.”).
In

response,

Plaintiff

argues

that

section

34-13-3-3(8)

establishes that the officers can be liable for “false arrest or
false imprisonment.”

Ind. Code. § 34-13-3-3(8); see DE #31 at 7.

However, as Defendants make clear in their reply, they are not
arguing that the official capacity claims should be dismissed;
rather, they move for dismissal of the false arrest claim as to the
ten defendant officers “in their individual capacities.”
at 4 (emphasis in original).)

(DE #32

This Court agrees that section 34-

13-3-5(b) provides immunity to governmental employees that are
acting in the scope of their employment from liability in their
individual capacities, thus the only proper defendant in Count IV
14

is the Town of Griffith (due to the potential liability from the
alleged

wrongful

actions

of

the

officers

in

their

official

capacities). As the Court thoroughly explained in Ashcraft v. City
of Crown Point, Indiana, No. 2:13-CV-080-JD, 2013 WL 5934612, at *7
(N.D. Ind. Nov. 5, 2013):
As to the claims against the Officer Defendants
individually, the Tort Claims Act states, “A
lawsuit alleging that an employee acted within the
scope of the employee’s employment bars an action
by the claimant against the employee personally.”
Ind. Code § 34-13-3-5(b).
The Indiana Supreme
Court has construed this provision as meaning that
“a plaintiff may not now sue a governmental
employee personally if the complaint, on its face,
alleges that the employee’s acts leading to the
claim occurred within the scope of employment.”
Thus, where a plaintiff alleges that an employee
acted within the scope of employment, this
provision
“provides
an
immediate
and
early
indication that the employee is not personally
liable. In the paraphrased words of the statute,
the action against the employee is ‘bar[red].’”
Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind.
2003) (alteration in original).
The court
therefore noted that “if the complaint alleges that
a government employee acted within the scope of
employment, then a motion to dismiss under Trial
Rule 12(B)(6) [Indiana’s analogue to Federal Rule
of Civil Procedure 12(b)(6)] would be the
appropriate course of action.” Id. at 472 n.4.
See also McAllister v. Town of Burns Harbor, 693 F.Supp.2d 815, 822
(N.D. Ind. 2010) (finding state law claims barred against officer
in his individual capacity where the complaint alleges he was
acting within the course of his employment).
Therefore,

dismissal

of

the

defendant

officers

individual capacities in Count IV is warranted.
15

in

their

The Town of

Griffith will remain as the only Defendant in Count IV.
In Count V, Plaintiff brings Indiana state law claims of
assault and battery against the ten defendant officers, in their
individual and official capacities.

Plaintiff argues that false

arrest

not

and

However,

a

false
case

imprisonment
cited

in

are

Plaintiff’s

contrary for this factual situation.

entitled
brief

to

immunity.

demonstrates

the

In Hendricks v. New Albany

Police Dep’t, 749 F.Supp.2d 863 (S.D. Ind. 2010), the Court denied
summary

judgment

Department),

for

as

to

state

the

institution

claims

for

false

(New

Albany

arrest

and

Police
false

imprisonment, finding that the municipality was not entitled to
immunity on the claims of false arrest and imprisonment.

Id. at

872. Yet, for the state claims against the individual officer, the
Court

recognized

that

the

ITCA

prohibits

tort

suits

against

government employees personally for conduct within their scope of
employment, and granted summary judgment as to the state law claims
against the defendant officer individually.

Id. at 869; see also

Baxter v. Marion Cnty. Sheriff, No. IP 00-1254-C-M/S, 2002 WL
392818, at *10 (S.D. Ind. Feb. 19, 2002) (“The officers are
correct, however, that the state law battery claim may only be
pursued against the Sheriff’s Department, and not against [the
officers] individually.”).

Consequently, dismissal of Count V in

its entirety is warranted.
Finally, although the complaint does not assert any federal
16

claims against the Town of Griffith, Defendants, in an abundance of
caution, devote a section of the motion to dismiss to Monell
liability. It is well settled that there is no respondeat superior
liability under Monell; rather, municipalities are only liable
“when execution of a government’s policy or custom . . . inflicts
the injury.”

Monell v. Dep’t of Soc. Servs. Of the City of New

York, 436 U.S. 658, 694 (1978).

The complaint does not make any

such allegations, and Plaintiff confirms that the “Complaint at Law
does not allege a Monell claim[] against the Defendant Town of
Griffith.”

(DE #31 at 9.)

As such, Defendants’ motion to dismiss

any section 1983 claims against the Town of Griffith is denied as
moot.

CONCLUSION
For the reasons set forth above, the Partial Motion to Dismiss
(DE #22) is GRANTED IN PART and DENIED IN PART.

The Partial Motion

to Dismiss is GRANTED as to: Counts I-III as to Defendant Officers
Chris Hermann and Jim Sibley and those claims against Defendants
Hermann and Sibley are DISMISSED WITH PREJUDICE; Count IV is
DISMISSED WITH PREJUDICE as to Defendant Officers Keith Hojnicki,
Chris Herrmann, Michael Gauler, Jeffrey Beck, Robert Guiterrez,
Richard Merschantz, Jacob Schoon, Jeff Gang, Curt Burrow, and Jim
Sibley IN THEIR INDIVIDUAL CAPACITY; and Count V is DISMISSED WITH
PREJUDICE in its entirety. The Partial Motion to Dismiss is DENIED
17

as to Counts I-III against Defendant Officer Robert Guiterrez and
those

claims

remain

pending

against

Officer

Guiterrez.

Additionally, the Partial Motion to Dismiss is DENIED AS MOOT as to
a Monell claim against the Town of Griffith, since that claim was
not pled in the complaint.

DATED: March 21, 2018

/s/ RUDY LOZANO, Judge
United States District Court

18