Clark v. Djukic et al

Filing 64

OPINION AND ORDER: DENYING 43 MOTION for Summary Judgment by Defendant Franciscan Alliance Inc, Counter Claimant Franciscan Alliance Inc; DENYING AS MOOT 51 First RULE 56 MOTION to Strike 45 Appendix, Affidavits of Undisclosed Witnesses by Plaintiff William B Clark; and GRANTING 16 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ON HOSPITAL'S COUNTERCLAIM by Counter Defendant William B Clark. Signed by Senior Judge James T Moody on 3/31/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WILLIAM B. CLARK,
Plaintiff,
v.
MATTHEW DJUKIC,
DAMIAN MURKS;
FRANCISCAN ALLIANCE, INC.,
d/b/a St. Margaret Mercy Hospital,
and TOWN OF SCHERERVILLE, IN,
Defendants.

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No. 2:14 CV 160

OPINION and ORDER
Plaintiff William B. Clark alleges that, after a traffic stop, he consented to having
his blood drawn at St. Margaret’s Hospital while in the custody of Schererville police
officers, to confirm his blood alcohol level. (DE # 1.) Clark further alleges that, after the
blood draw, he was forcibly catheterized against his will so that officers could obtain a
urine sample. (Id.) Clark sued, amongst others, Franciscan Alliance, Inc., the company
doing business as St. Margaret’s, for assault, battery, and failure to properly train its
employees. (Id.)
A.

Franciscan’s Motion for Summary Judgment

Franciscan has moved for summary judgment on the claims (DE # 43), alleging
that they sound in medical malpractice and therefore are barred because Clark failed to
present his proposed claim to a medical review panel before filing the claim in court, as
required by the Indiana Medical Malpractice Act (the “Act”), Ind. Code § 34-18-8-4.

“[S]ummary judgment is appropriate — in fact, is mandated — where there are
no disputed issues of material fact and the movant must prevail as a matter of law.”
Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations
and quotation marks omitted). However, in this case, Franciscan is not entitled to
judgment as a matter of law. This case is clearly controlled by Elliott v. Rush Memorial
Hospital, 928 N.E.2d 634, 640 (Ind. Ct. App. 2010), wherein the Indiana Court of Appeals
held that a claim of forced catheterization to obtain a urine sample for law enforcement
purposes is not a “malpractice” claim for purposes of the Act. The Elliott court
reasoned: “Elliott’s catheterization clearly was not for his own medical benefit. It was
not related to any treatment he needed for any disease or injury, but was carried out
solely for law enforcement purposes.” Id.
Clark’s claim of forced catheterization similarly falls outside of the purview of
the Act, and is not barred for failure to submit the claim to a medical review panel.
Therefore, Franciscan’s motion for summary judgment is denied. Clark’s motion to
strike affidavits submitted by Franciscan in support of its motion for summary
judgment (DE # 51) is denied as moot, as the affidavits are not necessary to decide the
motion for summary judgment.
B.

Clark’s Motion to Dismiss

Clark has also moved to dismiss Franciscan’s counterclaims alleging: (1) abuse of
process, and (2) “frivolous litigation.” (DE # 16.) Federal Rule of Civil Procedure
12(b)(6) requires the court to dismiss a complaint which fails to state a claim upon

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which relief may be granted. A complaint must go beyond providing “labels and
conclusions” and “be enough to raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In order to prevail on an abuse of process claim, Franciscan must prove that
Clark used judicial processes for an end other than that for which it was designed.
Comfax Corp. v. North Am. Van Lines, Inc., 638 N.E.2d 476, 481 (Ind. Ct. App. 1994). For
example, utilizing litigation to intimidate the other party into signing a contract
constitutes abuse of process. Archem, Inc. v. Simo, 549 N.E.2d 1054, 1061 (Ind. Ct. App.
1990).
In this case, Franciscan’s abuse of process claim is rooted in its contention that
Clark is lying about being forcibly catheterized. However, this is a matter of credibility
to be assessed by a fact-finder in Clark’s case against Franciscan. Franciscan also claims
that Clark seeks to influence pending criminal charges and harm the reputation of St.
Margaret’s with this lawsuit. However, these allegations are speculative and
conclusory, and Franciscan states no further facts to plausibly suggest that Clark has
used the judicial process in this case for any end other than to recover damages against
Franciscan for assault, battery, and failure to train its employees. Accordingly, the abuse
of process claim is dismissed.
Franciscan’s claim of “frivolous litigation” is also meritless. Through this claim,
Franciscan simply requests attorneys’ fees pursuant to Indiana Code § 34-52-1-1, which
permits fees to the prevailing party if the action was frivolous, unreasonable, or

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groundless or was litigated in bad faith. However, Section 34-52-1-1 is inapplicable in
federal court, Williams v. State Farm Ins. Co., No. 2:09-CV-177-PPS, 2011 WL 2111988, at
*2 (N.D. Ind. May 26, 2011), so the claim is dismissed.
For the foregoing reasons, Franciscan’s motion for summary judgment is
DENIED (DE # 43); Clark’s Rule 56 motion to strike is DENIED as moot (DE # 51); and
Clark’s motion to dismiss is GRANTED (DE # 16).
SO ORDERED.
Date: March 31, 2017
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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