Komoscar et al v. Pence et al
Filing
63
OPINION AND ORDER: GRANTING 43 MOTION for Judgment on the Pleadings Partial by Defendants Mary Beth Bonaventura, Terrance K Ciboch, Indiana Department of Child Services, Tamara G Loomis, Michael R Pence, Louella F Richey, Brittney D Schmidt as fol lows: The Court DISMISSES Section 1983 claims against defendants Pence and Bonaventura; DISMISSES Indiana constitutional claims against all defendants; DISMISSES Indiana tort claims against DCS without prejudice; and DISMISSES Indiana tort claims against defendants Ciboch, Richey, Loomis, and Schmidt. Signed by Judge Joseph S Van Bokkelen on 9/6/2016. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TIMOTHY J. KOMOSCAR and
KELLY A. KOMOSCAR, Individually
and on behalf of N.A.K., R.E.K., N.R.K.
and A.J.K, Minor Children,
Plaintiffs,
Case No. 2:15-CV-256 JVB
v.
MICHAEL R. PENCE, Governor of the State
of Indiana, MARY BETH BONAVENTURA,
Director of the Indiana Department of Child
Services, TERRANCE K. CIBOCH,
LOUELLA F. RICHEY, TAMARA G.
LOOMIS, BRITTNEY D. SCHMIDT, and
the INDIANA DEPARTMENT OF CHILD
SERVICES,
Defendants.
OPINION AND ORDER
Plaintiffs Timothy and Kelly A. Komoscar sued Defendants Michael R. Pence, the
Governor of the state of Indiana; the Department of Child Services (DCS); Mary Beth
Bonaventura, director of DCS; and Terrance K. Ciboch, the regional manager of DCS; as well as
DCS employees Louella F. Richey, Tamara G. Loomis, and Brittney D. Schmidt. Plaintiffs claim
defendants violated various federal and state laws by establishing and carrying out policies and
procedures that resulted in DCS wrongfully taking their children into custody and withholding
adequate psychological care. Pursuant to Federal Rule of Civil Procedure 12(c), Pence and
Bonaventura moved for judgment on the pleadings; while remaining defendants moved for
partial judgment on the pleadings.
A.
Background
The Amended Complaint alleges the following: on April 24, 2014, DCS removed
Plaintiffs’ children from their home and initiated a Child in Need of Services action pursuant to
Indiana Code § 31-34-1-1 et seq. The children remained in DCS custody for almost three
months, at which time an administrative law judge ordered that the children be returned home.
Plaintiffs break down their claims as follows:
Pence, Bonaventura, and Ciboch established and maintained policies and procedures that
violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution
as well as the Indiana Constitution; Richey, Loomis, and Schmidt carried out these
policies and procedures, further compounding the violations of Plaintiff’s rights;
DCS was negligent in hiring and retaining its employees and negligent in its operations;
and it intentionally and negligently inflicted emotional distress upon Plaintiffs;
Richey, Loomis, and Schmidt acted willfully and wantonly against Plaintiffs and
intentionally inflicted emotional distress upon them.
Pursuant to Rule 12(c), Pence and Bonaventura moved for judgment on the pleadings and
remaining defendants moved for partial judgment on the pleadings.
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B.
Standard of Review
A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is evaluated by the same standards as a motion to dismiss for failure to state a claim
under Rule 12(b)(6). Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). “The
facts alleged in the complaint are taken as true, drawing all reasonable inferences in favor of the
plaintiff.” Id.
To survive a motion to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
has facial plausibility when it allows the court to draw reasonable inferences that the defendant is
liable for the alleged misconduct. Id.
The complaint must contain only a “short plain statement of the claim showing plaintiff is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). But, while there is no need for detailed factual
allegations, the plaintiff must “give the defendant fair notice of what the claim is and the grounds
upon which it rests.” Olson v. Champaign County, 784 F.3d 1093, 1099 (7th Cir. 2015). The
“factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (2007).
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C.
Discussion
(1) § 1983 Claims
Plaintiffs allege that defendants Pence, Bonaventura, and Ciboch, established and
maintained policies, customs and procedures that violated their due process rights under the Fifth
and Fourteenth Amendments of the United States Constitution; as well as rights against
unreasonable search and seizure under the Fourth and Fourteenth Amendments. Further,
according to Plaintiffs, Ciboch, Richey, Loomis, and Schmidt violated those same constitutional
rights when they removed the children from their home, and then allegedly failed to provide
them with adequate psychological care.
Defendants Ciboch, Richey, Loomis, and Schmidt do not seek judgment on the pleadings
as to these claims against them. However, defendants Pence and Bonaventura contend that the
facts alleged in the amended complaint are insufficient to hold them individually liable for the
violations of the United Sates Constitution.
To hold an individual liable in a § 1983 action, the individual must participate in or cause
the constitutional deprivation. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). An
individual acting merely in a supervisory role cannot be held liable. Id. While direct participation
is not necessary, the individual must have actual knowledge of the action, and upon the basis of
that knowledge, could infer there was a substantial risk of serious harm. Palmer v. Marion
County, 327 F.3d 588, 594 (7th Cir. 2003).
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Plaintiffs’ amended complaint fails to show that Pence and Bonaventura were in any way
personally involved in the children’s removal or therapy. Likewise, there is no indication that
they knew the children were in DCS custody, or that any substantial risk of serious harm existed.
Accordingly, the Court will dismiss the § 1983 claims against defendants Pence and
Bonaventura.
(2) Pendent State Claims
(a) State Constitutional Claims
Plaintiffs argue that the same policies, procedures, and conduct alleged in their § 1983
claims against Pence, Bonaventura, Ciboch, Richey, Loomis, and Schmidt, also violated the
Indiana Constitution. While Defendants maintain there is no private right of action for Indiana
constitutional violations, Plaintiffs argue that the court in Cantrell v. Morris, 849 N.E.2d 498
(Ind. 2006), rejected the rule barring recovery under the Indiana Constitution. Plaintiffs insist
that state constitutional violations are evaluated according to the Indiana Tort Claims Act
(ITCA).
Plaintiffs’ argument for recovery under the Indiana Constitution is misguided. Plaintiffs
submit that the state constitutional violations should be evaluated according to the ITCA, which
under Cantrell, then provides them a right to recovery. But Cantrell specifically held that “there
is no explicit language in the Indiana Constitution providing any specific remedy for violations
of constitutional rights.” Id. at 498. And without express constitutional provisions or common
law precedent, no damage remedy exists. Id. Accordingly, the Court dismisses the Indiana
constitutional claims.
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(b) State Law Tort Claims
Plaintiffs bring state law tort claims against DCS for intentional infliction of emotional
distress; negligence; and negligent hiring and retention. DCS asserts immunity under the
Eleventh Amendment. Plaintiffs argue DCS is not immune because the State has consented to
suit under the Indiana Tort Claims Act.
The Court does not need to decide whether Indiana has consented under the ITCA to a
suit against it because, even if it did, Plaintiffs cannot show that Indiana has consented to suit in
federal court.
The Eleventh Amendment bars actions in federal court against a state or state agency.
Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). This same principle applies to state law claims
brought into federal court under pendent jurisdiction. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 121 (1984). A state’s waiver of sovereign immunity in its own courts
does not constitute a waiver of the Eleventh Amendment immunity in the federal courts. Fla.
Dep’t of Health v. Fla. Nursing Home Assn., 450 U.S. 147, 150 (1981). Because Indiana has not
consented to the state law claims being litigated in this Court, the Court dismisses them against
DCS for lack of jurisdiction.
Plaintiffs also bring state law claims against defendants Ciboch, Richey, Loomis, and
Schmidt for intentional infliction of emotional distress; and willful and wanton misconduct.
These defendants assert statutory immunity, but Plaintiffs argue that even if they are immune
under Indiana Code 31-25-2-2.5, they are vicariously liable under the ITCA.
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Indiana Code 31-25-2-2.5 provides that “DCS officers and employees are not personally
liable, except to the state, for an official act done or omitted in connection with the performance
of their duties.” Plaintiffs give no reason why the clear and plain meaning should not be applied
to the statute. In addition, Plaintiffs’ argument for vicarious liability is inapplicable because
vicarious liability refers to the liability of an employer, for the torts committed by its employee,
in the course of employment. In re Aimster Copyright Litigation, 334 F.3d 643, 654 (7th Cir.
2003). Therefore, as employees of DCS, Ciboch, Richey, Loomis, and Schmidt cannot be
vicariously liable. Accordingly, the Court dismisses the state-law tort claims against them.
D.
Conclusion
For the above reasons, the Court grants Defendants’ motion for judgment on the
pleadings (DE 43) as follows:
the Court dismisses Section 1983 claims against defendants Pence and Bonaventura;
the Court dismisses Indiana constitutional claims against all defendants;
the Court dismisses Indiana tort claims against DCS without prejudice; and
the Court dismisses Indiana tort claims against defendants Ciboch, Richey, Loomis, and
Schmidt.
SO ORDERED on September 6, 2016.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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