Johnson v. Hammond City of et al
Filing
49
OPINION AND ORDER: DENYING 39 Motion to Amend Complaint; GRANTING IN PART AND DENYING IN PART 16 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge James T Moody on 3/29/2016. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TERRY WAYNE JOHNSON, JR.,
Plaintiff,
v.
CITY OF HAMMOND, et al.,
Defendants.
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No. 2:14 CV 281
OPINION and ORDER
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 complaint1 against arresting Officer Christopher Gootee; Hammond,
Indiana, Chief of Police John D. Doughty; and the City of Hammond (hereinafter,
“City” or “Hammond”),2 raising claims for violations of the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution through 42 U.S.C. § 1983;
violations of Article I, sections 1, 11, 12, 15, 23, and 37 of the Indiana Constitution; and
1
All references to “the complaint” in the discussion herein pertain to the
amended complaint filed as DE # 13. Although plaintiff has moved to file a second
amended complaint, (DE # 39), that motion will be denied as explained herein.
2
The caption of the complaint also names “City of Hammond Police
Department” as a defendant. Under Indiana law, a municipal police department is not
itself an entity subject to suit, Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir.
2011), and there are no allegations pertaining to it as such in the complaint. To the
extent, if any, plaintiff meant to make it a party to this action, it is dismissed.
state tort claims for false arrest and imprisonment, humiliation, battery, intentional
infliction of emotional distress (hereinafter, “IIED”), and negligence. The defendants
have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss all claims asserted except for
the claims pursuant to § 1983 against Officer Gootee in his individual capacity, and the
tort claims for false arrest, imprisonment and battery against the City.
STANDARD
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:
To analyze the sufficiency of a complaint we must construe it in the light
most favorable to the plaintiff, accept well-pleaded facts as true, and draw
all inferences in the plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir.2008). A claim must be plausible rather than merely
conceivable or speculative, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), meaning that the plaintiff
must include “enough details about the subject-matter of the case to
present a story that holds together,” Swanson v. Citibank, N.A., 614 F.3d
400, 404–05 (7th Cir.2010). But the proper question to ask is still “could
these things have happened, not did they happen.” Id.
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
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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.
DISCUSSION
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
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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.
4
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
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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:
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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. However, if the governmental entity answers that
the employee acted outside the scope of the employee's employment, the
plaintiff may amend the complaint and sue the employee personally.
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.3 Thus, in response to defendants’ motion to dismiss, plaintiff argues that
it would be premature to dismiss his tort claims because it remains to be proved which
of these alternatives is correct. As plaintiff agrees, however, while also rejecting the
necessary consequence, defendants admit in their answer that Officer Gootee was acting
in the scope of his employment. (DE # 16 at 20, ¶ 53.) That admission is binding under
Rule 8 of the Federal Rules of Civil Procedure. Cf. Shakman v. Democratic Org. of Cook
Cty., 533 F.2d 344, 352 (7th Cir. 1976). Thus, plaintiff’s tort clams against Officer Gootee
and Chief Doughty as individuals are properly dismissed. See Ball v. City of Indianapolis,
760 F.3d 636, 644-45 (7th Cir. 2014).
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
3
This is logically and legally necessary to maintain plaintiff’s municipal liability
claims under § 1983, because police chiefs are final policymakers for municipal police
departments. Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995).
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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).4 Johnson does not support the point. Considering its facts and the
authority it cites, Cooney v. Rossiter, 583 F.3d 967, 970–71 (7th Cir.2009), all the case
stands for is that a naked allegation that a conspiracy existed is not sufficient. It does not
address the pleading standard for racial discrimination, which is minimal: “once a
plaintiff alleging illegal discrimination has clarified that it is on the basis of her race,
there is no further information that is both easy to provide and of clear critical
4
Defendants also argue that no Indiana cases have applied Article I, Section 1, to
racial discrimination. They have cited no Indiana case stating that it is not applicable to
such discrimination, however, and it is not this court’s prerogative to be the first to
interpret the Indiana Constitution in that manner.
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importance to the claim.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th
Cir. 2007). Plaintiff has pleaded enough, and his claim in Count VII for equitable relief
will not be dismissed.
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:
Cases recognizing violations of Article 1, Section 15 involve situations
where a prisoner was tortured, had a tooth knocked out, was repeatedly
beaten, kicked, and struck with a blackjack and beaten with a rubber hose
while he was stretched across a table, where a prisoner was beaten with
police officer's fists in both eyes, cut on the top of his head, and beaten
with a rubber hose on the head and ears, and where a prisoner was
severely injured after being shot by police during a protest.
Ratliff v. Cohn, 693 N.E.2d 530, 541 (Ind. 1998) (internal citations omitted).
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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:
Plaintiff has failed to plausibly state a viable claim for intentional infliction
of emotional distress (IIED), negligence, humiliation, or unlawful
discrimination because the Indiana Tort Claims Act immunizes police
officers and municipalities from liability for these types of “add on torts.”
Parish v. City of Elkhart, 2010 WL 4054271 at *4 (N.D. Ind. Oct. 15, 2010).
Ind. Code 34–13–3–3(8) provides:
A governmental entity or an employee acting within the
scope of the employee’s employment is not liable if a loss
results from the following: ... the adoption and enforcement
of or failure to adopt or enforce a law (including rules and
regulations), unless the act of enforcement constitutes false
arrest or false imprisonment.
(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:
“The ITCA established limitations on the judicially decreed rights to sue
and recover from governmental entities and their employees through
procedural mechanisms such as notice requirements and limitations on
recovery. The ITCA also established extensive immunity provisions which
shield governmental units from liability even in those cases where a
common law duty of care exists.” Benton v. City of Oakland City, 721 N.E.2d
224, 232 (Ind.1999). The Indiana Supreme Court acknowledged that “it is
the legislature, and not the courts, that is in the best position to determine
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the nature and extent to which governmental units in Indiana should be
insulated from tort liability.” Id.
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.)
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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
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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).
CONCLUSION
For the foregoing reasons, plaintiff’s motion for leave to amend (DE # 39) is
DENIED; defendants’ motion to dismiss (DE # 16) is GRANTED IN PART and
DENIED IN PART.
SO ORDERED.
Date: March 29, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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