Terry v. Calhoun et al

Filing 84

OPINION AND ORDER: The Court GRANTS the Defendants' Motions to Dismiss the Plaintiff's Complaint 56 , 63 , 65 . The Plaintiff's claims against all Defendants are DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM pursuant to Rule 12(b)(6). Signed by Chief Judge Theresa L Springmann on 12/3/2018. (Copy mailed to pro se party) (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RICKY D. TERRY,
Plaintiff,
v.
JENNIFER CALHOUN, DWIGHT
MILLER, SAMANTHA HAMMOND,
LANCE WATERS, ROB WILEY, and
AUSTIN HOLLABAUGH
Defendants.

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CAUSE NO.: 1:17-CV-440-TLS

OPINION AND ORDER
This matter is before the Court on the Defendants’, Jennifer Calhoun and Austin
Hollabaugh [ECF No. 56], Dwight Miller, Lance Waters, and Rob Wiley [ECF No. 63], and
Samantha Hammond [ECF No. 65], Motions to Dismiss. Defendants Calhoun, Hollabaugh,
Miller, Waters, and Wiley move to dismiss for lack of subject-matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). Defendant Hammond moves to dismiss for failure to state a claim
pursuant to Rule 12(b)(6). For the reasons stated below, the Court GRANTS the Defendants’
Motions to Dismiss and DISMISSES the Plaintiff’s claims WITH PREJUDICE.
BACKGROUND
Plaintiff Ricky D. Terry, proceeding pro se, has filed multiple complaints regarding an
August 2015 interrogation and arrest. The Plaintiff first filed a pro se complaint on October 20,
2017 [ECF No. 1], then filed his First Amended Complaint on February 23, 2018 [ECF No. 12],
a Second Amended Complaint on June 15, 2018 [ECF No. 35], and a Third Amended Complaint

on July 24, 2018 [ECF No. 45]. Across the Plaintiff’s complaints, the central allegations remain
the same. The Plaintiff states that Defendant Detective Lance Waters arrested him in late August
2015, accused him of molesting his daughter, and initiated “a Child in Need of Services” or
“C.H.I.N.S” proceeding. (Pl.’s Third Am. Compl., at ¶¶ 1, 3, 4). The Plaintiff claims that
Defendant Detective Dwight Miller attempted to have his daughter state that he molested her.
(Id., ¶ 2.) The Plaintiff alleges that Defendant Department of Children’s Services employee,
Jennifer Calhoun, was present while his daughter was coerced and intimidated into making an
allegation. (Id., ¶ 4.) The Plaintiff claims that Defendant Calhoun withheld documents indicating
that his daughter recanted her allegations. (Id.) The Plaintiff states that Defendant Probation
Officer Samantha Hammond was also in the room while his daughter was coerced and
intimidated into making an allegation against the Plaintiff. (Id., ¶ 5.) The Plaintiff alleges that
Defendants Chief of Kendallville Police Department Rob Wiley and Director of the Department
of Child Services of Noble County Austin Hollabaugh, negligently supervised Defendants Miller
and Calhoun, respectively. (Id., ¶¶ 6–7.) The Plaintiff requests damages in the amount of 1.5
million dollars. (Id., at 6.)
The Defendants in this action have all filed Motions to Dismiss. Defendants Calhoun and
Hollabaugh and Defendants Miller, Waters, and Wiley filed Motions to Dismiss for lack of
subject-matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule
12(b)(6) on August 24 and August 29, 2018, respectively. Defendant Hammond filed a Motion
to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) on August 30, 2018. Among
other arguments, the Defendants all argue that the Plaintiff’s claims are time-barred. (See Defs.
Calhoun and Hollabaugh’s Mem. in Supp. of Mot. to Dismiss at 5–7, ECF No. 57; Defs. Miller,

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Waters, and Wiley’s Mem. in Supp. of Mot. to Dismiss at 6, ECF No. 64; and Def. Hammond’s
Mem. in Supp. of Mot. to Dismiss at 3–6, ECF No. 66.)
The Plaintiff filed his oppositions to the Defendants’ Motions to Dismiss on September
28, 2018 [ECF No. 75–77]. In each of his responses, the Plaintiff argues that there is no statute of
limitations applicable to § 1983 actions. (See, e.g., Pl.’s Opp. to Def. Hammond’s Mot to
Dismiss at 7.) The Plaintiff also argues that, regardless, the statute of limitations should be tolled
because he filed a notice of a tort claim with the Indiana State Attorney General in August 2017
and the Defendants engaged in fraudulent concealment of evidence. (Pl.’s Opp. to Def.
Hammond’s Mot. to Dismiss at 5; Pl.’s Opp. to Defs. Calhoun and Hollabaugh’s Mot. to Dismiss
at 10–11; Pl.’s Opp. to Defs. Miller, Waters, and Wiley’s Mot. to Dismiss at 8(A–B).)
The Defendants have all filed responses to the Plaintiff’s opposition to their motions to
dismiss [ECF Nos. 78–79, 81]. Defendant Hammond filed her response on October 4, 2018,
Defendants Calhoun and Hollabaugh filed their response on October 9, 2018, and Defendants
Miller, Waters, and Wiley filed their response on October 17, 2018. The Defendants all contend
that the Plaintiff’s claims are time-barred and that his claims of fraudulent concealment of
evidence do not toll the applicable statute of limitations. (Def. Hammond’s Resp. to Pl.’s Opp. to
Mot. to Dismiss at 3–4; Defs. Calhoun and Hollabaugh’s Resp. to Pl.’s Opp. to Mot. to Dismiss
at 5–6; Defs. Miller, Waters, and Wiley’s Resp. to Pl.’s Opp to Mot. to Dismiss at 3–4.)
LEGAL STANDARD
Rule 12(b)(1) provides that a party may assert the defense of lack of subject-matter
jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). “Subject-matter jurisdiction is the first question
in every case, and if the court concludes that it lacks jurisdiction it must proceed no further.”
Illinois v. City of Chi., 137 F.3d 474, 478 (7th Cir. 1998). When considering a motion to dismiss
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for lack of subject matter jurisdiction, a court must accept as true all well-pleaded allegations and
draw all reasonable inferences in favor of the plaintiff. Alicea-Hernandez v. Catholic Bishop of
Chi., 320 F.3d 698, 701 (7th Cir. 2003).
Rule 12(b)(6) “challenges the viability of a complaint by arguing that it fails to state a
claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732,
736 (7th Cir. 2014). The Court presumes that all well-pleaded allegations are true, views these
well-pleaded allegations in the light most favorable to the Plaintiff, and accepts as true all
reasonable inferences that may be drawn from the allegations. Whirlpool Fin. Corp. v. GN
Holdings, Inc., 67 F.3d 605, 608. The Complaint need not contain detailed facts, but surviving a
Rule 12(b)(6) motion “requires more than labels and conclusions . . . Factual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
ANALYSIS
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted).
The Court understands that the Plaintiff’s Complaint alleges a claim pursuant to 42 U.S.C.
§ 1983 resulting from his interrogation and arrest in August 2015. To state a claim under § 1983,
the Plaintiff must allege (1) a deprivation of a right secured by the Constitution or laws of the
United States; (2) by a person acting under color of state law. Windle v. City of Marion, Ind., 321
F.3d 658, 661 (7th Cir. 2003). The Plaintiff appears to allege that the Defendants, state actors,
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violated his constitutional rights when he was arrested and interrogated in August 2015. (Pl.’s
Opp. to Defs. Miller, Waters, and Wiley’s Mot to Dismiss at 7.)
The Plaintiff asserts that an action under 42 U.S.C. § 1983 has no statute of limitations
and his complaint is timely (Id., at 1.) While it is true that there is no federal statute of limitations
for § 1983 actions, courts must apply the most appropriate statute of limitations. Lovett v. Seniff,
277 F. Supp. 2d 896, 897 (N.D. Ind. 2003). Section 1983 claims are considered as personal
injury claims in determining the applicable state statute of limitations. Campbell v. Forest
Preserve Dist. of Cook Cnty., Ill., 752 F.3d 665, 667–68; see also, Indep. Trust Corp. v. Stewart
Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (“When reviewing a Rule 12(b)(6) [motion
to dismiss] state law claims based on a statute of limitations, we apply state law regarding the
statute of limitations and ‘any rules that are an integral part of the statute of limitations, such as
tolling and equitable estoppel.” (quoting Parish v. City of Elkhart, 614 F.3d 677, 679 (7th
Cir.2010)). 1 The Indiana statute of limitations applicable to § 1983 actions is the two-year period
found in Indiana Code 34-11-2-4. See Campbell v. Chappelow, 95 F.3d 576, 580 (7th Cir. 1996).
Section 34-11-2-4 requires an action to “be commenced within two (2) years after the cause of
the action accrues.” Ind. Code § 34-11-2-4.
Tort claims accrue and the statute of limitations begins to run when the plaintiff
discovers, or in the exercise of ordinary diligence, could discover, that he has sustained an injury

On December 1, 1990, Congress adopted a four-year statute of limitations for federal claims. 28 U.S.C.
§ 1658. However, this applies only to civil actions “arising under an Act of Congress enacted after the
date of the enactment of this section.” Id. The Supreme Court has interpreted § 1658 to apply only “if the
plaintiff’s claim against the defendant was made possible by a post–1990 enactment,” and to leave “in
place the ‘borrowed’ limitations periods for pre-existing causes of action.” Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 382 (2004). The only post-1990 amendment to § 1983 came in 1996, when
Congress limited the relief available against judicial officers. Campbell, 752 F.3d at 668. Therefore, with
the exception of § 1983 cases brought against judicial officers, § 1983 action continue to be governed by
the forum state’s personal-injury statute of limitations, as opposed to § 1658’s four-year statute of
limitations. Id.
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caused by another person’s tortious act. Kissinger v. Fort Wayne Cmty. Sch., 293 F. Supp. 3d
796, 811 (N.D. Ind. 2018) (citing Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind.
1992)). The Plaintiff’s own pleadings indicate that he became aware of his injury in August
2015, when he was first arrested and interrogated. (Pl.’s Third Am. Compl. at ¶¶ 1–5.) The
Defendants argue that the Plaintiff’s claim is therefore time-barred, as the Plaintiff first filed his
original complaint on October 20, 2017.
The Seventh Circuit holds that “limitations statutes setting deadlines for bringing suit in
federal court are not jurisdictional.” Miller v. Fed. Deposit Ins. Corp., 738 F.3d 836, 843 (7th
Cir. 2013). The appropriate mechanism to dispose of a case on statute of limitations grounds is
Rule 12(b)(6). See Vonderohe v. B & S of Fort Wayne, Inc., 36 F. Supp. 2d 1079, 1081 (N.D.
Ind. 1999). Accordingly, the Court will not consider the Defendants Calhoun and Hollabaugh’s
and Defendants Miller, Waters, and Wiley’s arguments that the Plaintiff’s complaint should be
dismissed pursuant to Rule 12(b)(1) because the Plaintiff’s claims are time-barred. The Court,
however, will consider all the Defendants’ arguments that the Plaintiff’s claims should be
dismissed for failure to state a claim under Rule 12(b)(6).
A plaintiff can plead himself out of court if he present facts that show his suit is timebarred or otherwise without merit. Tregenza v. Great Am. Commc’ns Co., 12 F.3d 717, 718 (7th
Cir. 1993), cert. denied, 511 U.S. 1085, (1994). “A complaint is subject to dismissal for failure to
state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the
allegations, for example, show that relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim.” Jones v. Bock, 549 U.S. 199, 215
(2007). “While state law determines the length of the limitations period, federal law determines
the date of accrual of the cause of action.” Behavioral Inst. of Ind., LLC v. Hobart City of

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Common Council, 406 F.3d 926, 929 (7th Cir. 2005). A claim accrues pursuant to § 1983 when
the plaintiff knows or should know that his or her constitutional rights have been violated. Id.
The focus of the Plaintiff’s claims in his complaint center upon his interview and interrogation,
which the Plaintiff himself pleads occurred in August 2015, a fact he reiterates throughout
various amended complaints and response to the Defendants’ Motions to Dismiss. (See, e.g.,
Pl.’s Opp. to Defs. Miller, Waters, and Wiley’s Mot to Dismiss at 1.) The Plaintiff first filed suit
in this Court on October 20, 2017, well outside the two-year statute of limitations.
The Plaintiff seeks to toll the two-year statute of limitations in two ways – he claims he
filed a notice of a tort claim with the Indiana State Attorney General in August 2017 and that
there was fraudulent concealment of evidence. (Id., at 9.) Neither argument expands the statute
of limitations for the Plaintiff’s claim beyond two years.
Indiana law governs the tolling of limitation statutes under § 1983 in this case. See Clark
v. City of Braidwood, 318 F.3d 764, 767 (7th Cir. 2003) (holding that state’s law on equitable
tolling applied to plaintiff’s § 1983 claim.) The Plaintiff appears to argue that the filing of his
notice of a tort claim with the Indiana State Attorney General in August 2017 means his federal
claim is timely as this notice tolled the statute of limitations. Defendants Miller, Waters, and
Wiley argue that the Plaintiff failed to file his notice of tort claim within 180 days as required by
the Indiana Tort Claims Act (Ind. Code § 34-13-3-8) and his claims are procedurally barred.
(Defs. Miller, Waters, and Wiley’s Mot. to Dismiss at 6.)
The parties misunderstand how Indiana’s Tort Claims Act interacts with § 1983 claims.
Indiana’s Tort Claims Act does not apply to § 1983 actions. See McDowell v. Carroll Cnty., Ind.,
No. 2:14-CV-466, 2015 WL 2131606, at *2 (N.D. Ind. May 7, 2015) (citing Estate of Connor v.
Ambrose, 990 F. Supp. 606, 617 (N.D. Ind. 1997)). “This is because §1983 was intended to

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provide a federal remedy, independently enforceable whether or not it duplicates a parallel state
remedy.” McDowell, 2015 WL 2131606, at *2 (quoting Craig v. Witucki, 624 F. Supp 558, 559
(N.D. Ind. 1986)). The Defendants’ argument that the Plaintiff did not timely filed a notice of
tort claim with the Indiana State Attorney General is therefore irrelevant to the timeliness of his
federal complaint. “Congress did not impose any procedural prerequisite for filing a [§] 1983
action and to impose state procedural requirements on a § 1983 claim would diminish the [broad]
remedial purpose intended by Congress.” Craig, 624 F. Supp. at 559–560. At the same time, the
Plaintiff’s argument that his filing of a notice of tort claim tolled the statute of limitations is
likewise irrelevant. That he fulfilled a state law procedural prerequisite has no bearing on his
statute of limitations for filing a § 1983 action in federal court.
The Plaintiff is correct that under Indiana law, statutes of limitations may be tolled due to
fraudulent concealment. Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011) (citing Behavioral
Inst. of Ind., LLC, 406 F.3d at 932.) In Indiana, the doctrine of fraudulent concealment is
available to estop a defendant from asserting the statute of limitations when the defendant has,
either by deception or by violating a duty, concealed from the plaintiff material facts, preventing
the plaintiff from discovering a potential cause of action. Logan, 644 F.3d at 582 (citing City of
E. Chi. v. E. Chi. Second Century, Inc., 908 N.E.2d 611, 621–22 (Ind. 2009)).
The Plaintiff’s claims, however, fail to indicate that fraudulent concealment occurred.
The Plaintiff himself states that he was aware of and able to view the video of his daughter’s
interview approximately seven to eight months prior to the running of the statute of limitations
for his § 1983 claims. (Pl.’s Opp. to Defs. Calhoun and Hollabaugh’s Mot. to Dismiss at 11.) The
Plaintiff has not plead any facts that indicate any of the Defendants concealed the video or

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prevented him from accessing it such that he was unable to discover a potential cause of action
prior to the expiration of the statute of limitations.
The Plaintiff has effectively pled himself out of this Court with the facts alleged. His
pleadings indicate that his asserted injury occurred in August 2015 and his claims are ineligible
for tolling. His claims are thus subject to dismissal pursuant to Rule 12(b)(6). Although leave to
amend should be freely given, Fed. R. Civ. P. 15(a), that does not mean it must always be given.
Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). “[C]ourts have broad discretion
to deny leave to amend where . . . the amendment would be futile.” Id. Such is the case here. The
Plaintiff’s only claims relate to an incident outside of the statute of limitations. The Plaintiff has
had multiple attempts to plead facts that would indicate his claim is not time-barred and has
failed to do so. It is too late to amend to add new claims or defendants regarding the incident at
the center of the Plaintiff’s complaint and it would be futile to permit the Plaintiff to file yet
another amended complaint.

CONCLUSION
For the reasons set forth above, the Defendants’ Motions to Dismiss the Plaintiff’s
Complaint [ECF Nos. 56, 63, 65] are GRANTED. Accordingly, the Plaintiff’s claims against all
Defendants are DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM
pursuant to Rule 12(b)(6).
SO ORDERED on December 3, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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