Ware v. Gary School City et al

Filing 55

OPINION AND ORDER: The Motion 49 is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED to the extent the official capacity claims against Officer Brown are DISMISSED WITH PREJUDICE. However, the Motion is DENIED on theother claims, which REMAIN PENDING, and Plaintiffs request for leave to amend the complaint for a second time is also DENIED. Signed by Judge Rudy Lozano on 8/12/2015. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GLENN D. WARE,
Plaintiff,
vs.
GARY SCHOOL CITY, et al.,
Defendants.

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CAUSE NO. 2:15-CV-42

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss
Plaintiff’s Amended Complaint, filed by Defendants, Gary Community
School Corporation and Michael Brown, on July 17, 2015 (DE #49).
For the reasons set forth below, the Motion (DE #49) is GRANTED IN
PART AND DENIED IN PART.

The Motion is GRANTED to the extent the

official capacity claims against Officer Brown are DISMISSED WITH
PREJUDICE.

However, the Motion is DENIED on the other claims,

which REMAIN PENDING, and Plaintiff’s request for leave to amend
the complaint for a second time is also DENIED.

DISCUSSION

Request for Leave to Amend The Complaint for a Second Time
In

his

response,

Plaintiff

requests

leave

to

amend

his

complaint to include the Gary Police Department as a party.

(DE

#51, p. 1, 2.) Plaintiff already filed an amended complaint on May
29, 2015 (DE# 34).

He claims he inadvertently forgot to name the

Gary Police Department as a party in the amended complaint.
Plaintiff has failed to file a separate motion to amend his
complaint as required by N.D. Local Rule 7-1. As such, the request
for leave to file a second amended complaint made in his response
to the pending motion to dismiss is DENIED.

Motion to Dismiss
For the purpose of analyzing Defendant’s Rule 12(b)(1) claims,
the following standards apply.

Pursuant to Federal Rule of Civil

Procedure 12(b)(1), a defendant may move to dismiss claims over
which

the

federal

court

lacks

subject

matter

jurisdiction.

Jurisdiction is the "power to decide" and must be conferred upon a
federal court.

In re Chicago, Rock Island & Pac. R.R. Co., 794

F.2d 1182, 1188 (7th Cir. 1986).

When jurisdictional allegations

are questioned, the plaintiff has the burden of proving that the
jurisdiction requirements have been met.

Kontos v. United States

Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987).

In reviewing a

Rule 12(b)(1) motion to dismiss, the Court may look beyond the
complaint and review any extraneous evidence submitted by the
parties to determine whether subject matter jurisdiction exists.
United Transp. Union v. Gateway Western R.R. Co., 78 F.3d 1208,
1210 (7th Cir. 1996).
2

To the extent Defendant’s claims are under Rule 12(b)(6), the
Court will apply the following guidelines. The purpose of a motion
to dismiss is to test the legal sufficiency of the complaint, not
to decide the merits.

Triad Assocs., Inc. v. Chicago Hous. Auth.,

892 F.2d 583, 586 (7th Cir. 1989). In determining the propriety of
dismissal under Federal Rule of Civil Procedure 12(b)(6), the court
must accept all facts alleged in the complaint as true and draw all
reasonable inferences in the light most favorable to the plaintiff.
Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001).

A complaint

is not required to contain detailed factual allegations, but it is
not enough merely that there might be some conceivable set of facts
that entitles the plaintiff to relief.

Bell Atlantic Corp. v.

Twombly, 127 S.Ct. 1955, 1964-65 (2007), abrogating in part Conley
v.

Gibson,

355

U.S.

41,

45-46

(1957).

A

plaintiff

has

an

obligation under Rule 8(a)(2) to provide grounds of his entitlement
to relief, which requires more than labels and conclusions. Id. at
1965.

Factual allegations, taken as true, must be enough to raise

a right to relief above the speculative level.

Id.

Moreover, a

plaintiff may plead himself out of court if the complaint includes
allegations that show he cannot possibly be entitled to the relief
sought.

Jefferson v. Ambroz, 90 F.3d 1291, 1296-97 (7th Cir.

1996).
Whether Plaintiff’s Fourth and Fifth Claim Should be Dismissed
For Failure to Serve Defendants With An Indiana Tort Claims
Notice
3

Plaintiff sets forth claims of intentional infliction of
emotional distress (Count 4) and negligent infliction of emotional
distress (Count 5).

Defendants, Gary Community School Corporation

and Officer Michael Brown, argue these claims should be dismissed
because Plaintiff failed to serve proper tort claim notices.
The ITCA provides that a claim against a political subdivision
is barred unless the prescribed notice is filed within 180 days
after the loss occurs.

Ind. Code 34-13-3-8; see also Davidson v.

Perron, 716 N.E.2d 29, 33-34 (Ind. Ct. App. 1999).

Specifically,

notice must be filed: (1) with the governing body of that political
subdivision;
Management

and

2)

Commission.

the

Indiana
Ind.

Code

Political

Subdivision

34-13-3-8.

“The

Risk
notice

requirements of the ITCA apply not only to suits against political
subdivisions but also to suits against employees of political
subdivisions.” Davidson, 716 N.E.2d at 33-34 (citing VanValkenburg
v. Warner, 602 N.E.2d 1046, 1048 (Ind. Ct. App. 1992)).

The

claimant bears the burden of establishing substantial compliance
with the notice provisions and it is a question of law.

Chang v.

Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct. App. 2013).
In response, the Plaintiff claims he did serve notice to the
Gary Police Department, and claims information was withheld so he
could not serve Officer Brown.

(DE #51, p. 2.)

Plaintiff does not

address whether he served notice on the Gary Community School

4

Corporation,

but

claims

Plaintiff

has

not

presented

evidence

indicating it is a political subdivision which required notice.1
Plaintiff

does

cite

to

docket

entries

25-27,

which

contain

documents outside the pleadings in this case, including postal
service receipts.

While compliance “with the notice provisions of

the ITCA is a procedural precedent which the plaintiff must prove
and which the trial court must determine before trial,” Alexander
v. City of South Bend, 256 F.Supp.2d 865, 875 (7th Cir. 2003), it
will not be decided in the current context of a motion to dismiss.
Rather, once Defendants raise this affirmative defense in their
responsive pleading, this issue can be addressed in a motion
pursuant to either a Rule 12(c) or Rule 56. Thompson v. City of
Aurora, 325 N.E.2d 839, 843 (1975).

Claims Against Officer Brown
Next, Plaintiff argues in one short paragraph that:
A suit against Officer Brown in his official capacity is
a suit against the police department. Hill v. Shelander,
924 F.2d 1370, 1372 (7th Cir. 1991). Plaintiff has sued
the City of Gary, the Gary Community School Corporation
and Michael Brown. That the complaint against Michael
Brown individually should be dismissed in its entirety.
The complaint against Michael Brown represents an
1

The Court notes that the Gary Community School corporation
does fall within the definition of a political subdivision of the
State of Indiana. See Ind. Code § 34-6-2-110(9); see also Meury
v. Eagle-Union Cmty. Sch. Corp., 714 N.E.2d 233, 241 (Ind. Ct.
App. 1999) (“Claims against school corporations and their
employees are subject to the Indiana Tort Claims Act notice of
claims provisions.”).
5

official capacity lawsuit.
(DE #50, p. 3.) A civil rights plaintiff must specify whether suit
is brought against the defendant in their official capacity, or in
their individual capacity.
(7th Cir. 1991).
“is

sued

Hill v. Shelander, 924 F.2d 1370, 1372

The amended complaint states that Officer Brown

individually

and

in

his

capacity

Department and School City of Gary officer.”

as

a

Gary

Police

(Am. Compl., DE #34,

¶ 23.)
The Supreme Court has held that neither a State, nor its
officials acting in their official capacities are “persons” under
section 1983.

Will v. Michigan Dep’t of State Police, 491 U.S. 58,

71 (1989); see also Joseph v. Board of Regents of Univ. of
Wisconsin Sys., 432 F.3d 746, 748 (7th Cir. 2005).

The Eleventh

Amendment bars section 1983 claims for damages against state
officers in their official capacity because the State, in such a
suit, is the real party in interest.

See, e.g., Will, 491 U.S. at

71 (state officials are not “persons” for the purposes of § 1983
where the relief sought is monetary in nature); Pennhurst State
Sch. and Hosp. v. Halderman, 465 U.S. 89, 101 (1984); Peirick v.
Indiana Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d
681, 695 (7th Cir. 2007)(“The [Eleventh] Amendment usually bars
actions in federal court against a state, state agencies, or state
officials acting in their official capacities”); Porco v. Trustees
of Indiana Univ., 453 F.3d 390, 394-95 (7th Cir. 2006) (finding
6

Eleventh Amendment protected the defendants sued in their official
capacities from satisfying a money judgment). Alternatively, state
officials

sued

in

their

individual

capacities,

subject to liability under section 1983.

are

“persons”

Hafer v. Melo, 502 U.S.

21, 27-30 (1991).
The Court concurs that the Eleventh Amendment bars suit
against Officer Brown in his official capacity, and these claims
will be dismissed.

See Peirick, 510 F.3d at 695.

However, the

claims against Officer Brown in his individual capacity remain.

Statute of Limitations
Defendants argue that Plaintiff had two years to bring his
claim for personal injury pursuant to Ind. Code § 34-11-2-4, that
Plaintiff alleges the action occurred on or about February 3, 2013,
but “[t]o the extent that the alleged incident occurred prior to
February 3, 2013, Plaintiff’s claim is barred by the statute of
limitations.” (DE #50, p. 3.) Plaintiff points out that Defendant
cites no evidence whatsoever indicating Plaintiff’s claims occurred
prior to the date at issue, February 3, 2013.

This Court concurs

that all of Plaintiff’s allegations in the complaint, which the
Court must accept as true at this stage of the proceeding, state
the

incident

occurred

on

February

3,

2013.

Therefore,

the

complaint, filed on February 3, 2015, was timely filed, and the
claims are not barred by the statute of limitations.

7

CONCLUSION
For the reasons set forth below, the Motion (DE #49) is
GRANTED IN PART AND DENIED IN PART.

The Motion is GRANTED to the

extent the official capacity claims against Officer Brown are
DISMISSED WITH PREJUDICE.

However, the Motion is DENIED on the

other claims, which REMAIN PENDING, and Plaintiff’s request for
leave to amend the complaint for a second time is also DENIED.

DATED:

August 12, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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