Bostic v. Pence et al

Filing 112

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 91 MOTION for Judgment on the Pleadings on Plaintiff's Second Amended Complaint filed by Diane Ross Boswell, Samuel L. Cappas, Salvadore Vasquez, Clarence D. Murray, Thomas P S tefaniak, Jr. The Court ORDERS that the § 1983 claims in Count I against Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas P. Stefaniak, Jr., and Samual L. Cappas based on the issuance of the October 30, 2014 ex parte order are DISMISSED WITH PREJUDICE. The Court further ORDERS that the claims in Count I against these Defendants otherwise REMAIN PENDING. Signed by Magistrate Judge Paul R Cherry on 4/12/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LORENA E. BOSTIC,
Plaintiff,

)
)
)
v.
)
)
SALVADOR VASQUEZ, CLARENCE D.
)
MURRAY, DIANE ROSS BOSWELL, THOMAS )
P. STEFANIAK, JR., SAMUEL L. CAPPAS,
)
JAN PARSONS, and MIROSLAV RADICESKI, )
Defendants.
)

CAUSE NO.: 2:15-CV-429-PRC

OPINION AND ORDER
This matter is before the Court on the State Court Judges’ Motion for Judgment on the
Pleadings [DE 91], filed by Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross
Boswell, Thomas P. Stefaniak, Jr., and Samual L. Cappas (collectively “Superior Court Judge
Defendants”) on January 22, 2018. Plaintiff Lorena E. Bostic filed a response on February 6, 2018,
and Defendants filed a reply on February 13, 2018.
PROCEDURAL BACKGROUND
Plaintiff Lorena E. Bostic filed her Second Amended Complaint on December 15, 2017,
alleging that she was sexually assaulted in the Lake County Government Center by Defendant
Miroslav Radiceski while he was serving as her probation officer. Bostic seeks remedies for the
alleged “deprivation of constitutionally protected rights by Defendants, individually, which result
from the commission of multiple non-consensual sexual and non-sexual acts committed upon
Plaintiff, Lorena Bostic.” (ECF 81, p. 1). Count I is brought against the Superior Court Judge
Defendants under 42 U.S.C. § 1983 for the alleged violation of Ms. Bostic’s rights under the Fourth,
Fifth, and Fourteenth Amendments to the United States Constitution. Id. at ¶ 45. The claim in Count
II for willful and wanton misconduct is not brought against the Superior Court Judge Defendants.

The Second Amended Complaint includes the following relevant “General Allegations”:
4.

At all relevant times the individual Judges of the Superior Court of Lake
County, Criminal Division, had a duty to the public at large, and more
specifically to Lorena E. Bostic to, inter alia, monitor and provide adequate
security for all public areas of the Lake County Government Center, 2293
North Main Street, Crown Point, Indiana 46307, including, but not limited
to the public stairwells, through the Lake County, Indiana, Board of
Commissioners as the executive officer of Lake County, Indiana.

5.

At all relevant times the individual Judges of the Superior Court of Lake
County, Criminal Division, acted with deliberate or reckless disregard for
the Constitutional Rights of the Plaintiff and failed to monitor and provide
adequate security for the public stairwells of the Lake County Government
Center, Courts Building, despite their knowledge that Defendant Miroslav
Radiceski, as a Probation Officer of the Superior Court of Lake County,
Criminal Division, had previously sexually assaulted a felony division
probationer in a public stairwell of the Lake County Government Center.

...
11.

The Judges of the Superior Court of Lake County, Criminal Division,
oversee, administer, supervise and direct the work force of the Probation
Department of the Superior Court of Lake County, Criminal Division.

12.

Probation Officers of the felony Probation Department in their position of
authority and trust have wide latitude in setting the terms and conditions of
probation and reporting compliance, all of which has a direct effect upon the
liberty of probationers.

...
14.

At all relevant times Defendant Miroslav Radiceski was duly employed as a
felony Probation Officer by the Superior Court of Lake County, Criminal
Division.

15.

Defendant individual Judges of the Superior Court of Lake County, Criminal
Division; the Director of the felony Probation Department of the Superior
Court of Lake County, Criminal Division; and Miroslav Radiceski, felony
Probation Officer had a duty not to interfere with or deprive the Plaintiff of
her Constitutional Rights.

16.

At all times relevant to this SECOND AMENDED COMPLAINT, Defendant
Judges of the Superior Court of Lake County, Criminal Division, and Jan
2

Parsons, Director and Chief Probation Officer of the felony Probation
Department, were aware of problems and investigations and past incidents
involving misconduct by Miroslav Radiceski in his relations with and
supervision of probationers that deprived them of their constitutionally
protected rights.
17.

Defendant Judges of the Superior Court of Lake County, Criminal Division,
and Jan Parsons, Director and Chief Probation Officer of the felony
Probation Department, notwithstanding their knowledge of misconduct by
Miroslav Radiceski which had occurred in the past acted with deliberate or
reckless disregard to the Constitutional Rights of the Plaintiff and consented
to such deprivation of rights.

(ECF 81) (emphasis added).
In relevant part, Count I alleges:
18.

On or about March 26th, 2013, the Plaintiff, Lorena E. Bostic, was a
probationer, having been placed on probation on October 31st, 2011, by the
Honorable Clarence D. Murray, Judge of the Superior Court of Lake County,
Criminal Division, Room Two, in Case No.: 45G02-0911-FC-00139.

19.

Commencing on or about March 26th, 2013, Miroslav Radiceski was the
felony Probation Officer assigned to Ms. Bostic and under the guise of
needing to meet alone with Ms. Bostic he commenced a course of improper
conduct which included repeated acts of non-consensual, forcible, sexual and
non-sexual behavior and deprivations of her liberty which continued over the
ensuing months at various times and at locations of Probation Department
offices until it culminated on November 26th, 2013, with non-consensual
sexual conduct.

...
21.

On March 26th, 2013, Ms. Bostic rebuffed such misconduct whereupon
Miroslav Radiceski, deliberately and maliciously retaliated the next day by
filing a Petition To Revoke Probation, which remained pending until January
8th, 2014.

22.

On November 26th, 2013, Miroslav Radiceski engaged in improper,
non-consensual, forcible, sexual and non-sexual misconduct against the
Plaintiff, Lorena E. Bostic, on the rarely utilized, dimly lighted alcove off the
third “dead end” level or roof access level landing of the enclosed, east
stairwell of the Courts Building of the Lake County Government Center.

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23.

Immediately after court proceedings, rather than lead Ms. Bostic directly to
the Probation Department, Miroslav Radiceski directed her to the second
floor east hallway of the Courts Building, which Ms. Bostic had never before
used, opened the stairwell door and instructed Ms. Bostic to go “up” to his
“office.”

...
25.

On November 26th, 2013, at the direction of Miroslav Radiceski, Ms. Bostic
found herself confined and alone on the rarely utilized, dimly lighted alcove
off the third “dead end” level or roof access level landing of the east stairwell
with Defendant Radiceski, who thereupon improperly compelled her to
engage in non-consensual, forcible sexual conduct.

26.

Thereafter Miroslav Radiceski falsely reported that such incidents had not
occurred or that they constituted sexual and non-sexual advances by Ms.
Bostic toward Radiceski.

...
28.

At all relevant times the Judges of the Superior Court of Lake County,
Criminal Division, supervised, administered and directed the work force of
the felony Probation Department of the Superior Court of Lake County,
Criminal Division.

...
31.

In accordance with Ind. Code § 34-13-3-8 and in compliance with Ind. Code
§ 34-13-3-10, the Plaintiff on April 17th, 2014, inter alia, caused a Notice of
Tort Claim to be timely forwarded to Jan Parsons and the other Defendants,
who were duly served on or about April 21st, 2014.

32.

The only response received to such service was the May 14th, 2014, notice
from the Indiana Political Subdivision Risk Management Fund that Lake
County, Indiana, did not participate as a member of such Fund.

33.

Notwithstanding service of the Notice of Tort Claim upon the Defendants
and the requirements imposed by Ind. Code §34-13-3-11, the Defendants
never notified the Plaintiff of their approval or denial of her claims.

34.

On October 30th, 2014, Ms. Bostic appeared at the offices of the Porter
County Adult Probation Department, as had been routinely scheduled, was
advised that Lake County was transferring her probation back to Crown Point

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for unknown reasons and was instructed to report to Jan Parsons at the Lake
County Probation Department the following morning at 11:30 a.m.
35.

On October 30th, 2014, the presiding Judge of the Superior Court of Lake
County, Criminal Division, Room Two, with deliberate or reckless disregard
for the Plaintiff’s Constitutional Rights, entered an ex parte Order extending
Ms. Bostic’s probation for an additional period of one (1) year, all of which
was devoid of due process and without notice to Lorena E. Bostic or her
counsel of record and was deliberate or in reckless disregard of Ms. Bostic’s
Constitutional Rights.

36.

On the morning of October 31st, 2014, Lorena E. Bostic appeared at the
offices of the felony Probation Department of the Superior Court of Lake
County, Criminal Division, where she suffered an observable physical and
emotional reaction as she passed through the felony Probation Department
offices.

...
44.

The Defendant Judges of the Superior Court of Lake County, Criminal
Division; and their employees and agents acted with deliberate or reckless
disregard to the Constitutional Rights of Lorena E. Bostic by doing the
following:
a.

Hiring, retaining and entrusting, in a position of authority and trust,
the supervision of probationers to an employee whom they knew to
be of such poor character, temperament and disposition as to be
totally unfit to be hired, retained and placed in a position of authority,
trust and supervision of any probationer;

b.

Failing to adopt, incorporate and enforce such rules, regulations,
policies and procedures for the administration and management of the
Lake County felony Probation Department as was constitutionally
required to protect the safety, health and well being of Lorena E.
Bostic and other probationers;

c.

Failing to adopt, incorporate and enforce such rules, regulations,
policies and procedures for the administration and management of the
Lake County felony Probation Department as would provide
constitutionally required guidance, supervision and direction to
Lorena E. Bostic and other probationers;

d.

Failing to administer, manage, review and supervise the Lake County
felony Probation Department and the conduct and work performance
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of its employees to ensure constitutionally appropriate probationer
supervision, guidance and direction;
e.

f.

45.

Failing to take proper precautions and exercise due care for the
Constitutional Rights of Lorena E. Bostic when visiting the offices of
the felony Probation Department at any of its facilities; and
Permitting Lorena E. Bostic to be deprived of her Constitutional
Rights by the misconduct of Miroslav Radiceski, who was a person
upon whom Ms. Bostic was expected to trust and rely upon for
guidance, supervision and direction during the period of her
probation.

At all times relevant hereto [the Superior Court Judge Defendants; Jan
Parsons; and Miroslav Radiceski] deprived Plaintiff, Lorena E. Bostic, of her
Fourth, Fifth and Fourteenth Amendment rights, privileges and immunities
secured by the Constitution and well-settled laws of the United States and the
State of Indiana, including her right to safety and to be free from predation
by employees of such Probation Department, and as a direct and proximate
result thereof she was physically, emotionally, mentally and sexually injured
and will continue to suffer severe emotional distress and mental injury.

(ECF 81).
The Superior Court Defendants filed an Answer on January 2, 2018.
ANALYSIS
In the instant motion, the Superior Court Judge Defendants seek judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) on Plaintiff’s § 1983 claim against them, arguing
that they were not personally involved in the alleged constitutional violations and that they are
entitled to absolute judicial immunity. Rule 12(c) provides that a party may move for judgment on
the pleadings after the complaint and answer have been filed. See Fed. R. Civ. P. 12(c); Supreme
Laundry Serv., LLC v. Hartford Cas. Ins. Co., 521 F.3d 743, 746 (7th Cir. 2008). Rule 12(c) motions
are evaluated under the same standard as a motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6), which tests the sufficiency of the complaint and not the merits of the suit. See Gibson v.
City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990).
In ruling on such a motion, the Court accepts as true all of the well-pleaded facts alleged by
the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th
Cir. 2008). To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must
first comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of
what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see
also Tamayo, 526 F.3d at 1082. The Supreme Court explained that the “plaintiff’s obligation to
provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d
574, 581 (7th Cir. 2009). Determining whether a complaint states a plausible claim for relief requires
the Court to draw on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
First, the Superior Court Judge Defendants argue that they did not have the requisite personal
involvement in any of the alleged constitutional violations. To state a claim under § 1983, a plaintiff
must allege that a government official, acting under color of state law, deprived her of a right
secured by the Constitution or laws of the United States. Heyde v. Pittenger, 633 F.3d 512, 516 (7th

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Cir. 2011) (quoting Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir.
2007)). Section 1983 “liability is premised on the wrongdoer’s personal responsibility.” Kuhn v.
Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). “‘An individual cannot be held liable in a § 1983
action unless he caused or participated in an alleged constitutional deprivation.’” Id. at 556 (quoting
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); citing Grieveson v. Anderson, 538 F.3d
763, 778 (7th Cir. 2008); Townsend v. Fuchs, 522 F.3d 765, 775 (7th Cir. 2008)). Thus, the doctrine
of respondeat superior does not apply to actions brought under § 1983. Doyle v. Camelot Care Ctrs.,
Inc., 305 F.3d 603, 614 (7th Cir. 2002).
As a result, supervisory officials are liable under § 1983 only if they had “personal
involvement in the constitutional deprivation, essentially directing or consenting to the challenged
conduct.” Id. at 614-15; see also Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1039 (7th Cir.
2003). It is not enough that the supervisory official acted negligently in failing to detect and prevent
a subordinate’s misconduct. Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997). However,
the personal responsibility requirement of § 1983 can be satisfied if the supervisory official “‘acts
or fails to act with a deliberate or reckless disregard of the plaintiff’s constitutional rights.’” Miller
v. Smith, 220 F.3d 491, 495 (7th Cir. 2000) (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.
1982)); see also Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). To satisfy the
personal responsibility requirement, the supervisor must “know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they might see[.]” Matthews v. City of
East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (quoting Jones v. City of Chicago, 856 F.2d 985,
992-93 (7th Cir. 1988)); see also Chavez, 251 F.3d at 651 (quoting Jones, 856 F.2d at 992-93).

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In this case, Ms. Bostic alleges that the Judges had “knowledge that Defendant Miroslav
Radiceski, as a Probation Officer of the Superior Court of Lake County, Criminal Division, had
previously sexually assaulted a felony division probationer in a public stairwell of the Lake County
Government Center.” (ECF 81, ¶ 5). Ms. Bostic further alleges that the Judges “were aware of
problems and investigations and past incidents involving misconduct by Miroslav Radiceski in his
relations with and supervision of probationers that deprived them of their constitutionally protected
rights.” Id. at ¶ 16. And, Ms. Bostic alleges that the Judges “oversee, administer, supervise and
direct the work force of the Probation Department of the Superior Court of Lake County, Criminal
Division.” Id. at ¶ 11. Thus, the Judges allegedly possessed the power, and presumably the
opportunity, to prevent Radiceski from continuing to engage in similar misconduct, as allegedly
occurred with Ms. Bostic.
These facts support Ms. Bostic’s allegation that the Judges acted with deliberate or reckless
disregard for her constitutional rights by “turning a blind eye” to Radiceski’s past similar behavior,
resulting in a foreseeable violation of Ms. Bostic’s constitutional rights. At this stage of the
litigation, the Court finds that Ms. Bostic has alleged in her Second Amended Complaint sufficient
facts of personal involvement to state a claim against the Superior Court Judge Defendants. See
Powell v. City of Chicago, No. 17-CV-5156, 2018 WL 1211576, at *9 (N.D. Ill. Mar. 8, 2018)
(finding that the plaintiff stated a claim against the arresting police officer’s supervisors under §
1983 based on the alleged facts that the supervisors had received prior civilian complaints and, thus,
knew that the arresting officers had previously engaged in “fabricating evidence and manufacturing
false charges against persons at the Ida B. Wells Homes”).

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Second, the Superior Court Judge Defendants assert in the motion that they are entitled to
absolute judicial immunity because they were acting in their official capacities. The Judges do not
pursue immunity in their reply brief. A judge is immune from liability—even if the action taken was
done in error, maliciously, or in the excess of authority—unless the judge acted in the clear absence
of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The doctrine confers complete
immunity from suit, not just a mere defense to liability and is applicable to claims brought under §
1983. Dawson v. Newman, 419 F.3d 656, 661 (7th Cir. 2005) (quoting Dellenbach v. Letsinger, 889
F.2d 755, 758 (7th Cir. 1989)). Absolute immunity, however, applies only to judicial acts and does
not protect the judge from acts that are “ministerial or administrative” in nature. Id. (quoting Lowe
v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985)); see also Mireles v. Waco, 502 U.S. 9, 11-12 (1991)
(citing Forrester v. White, 484 U.S. 219, 227-229 (1988)).
This determination is a functional one that considers the nature of the governmental function
performed. Dellenbach, 889 F.2d at 759 (citing Forrester, 484 U.S. at 224). Indiana law adopts the
federal approach to judicial immunity with respect to administrative actions. Ray v. Medlock, No.
4:11-CV-62, 2012 WL 5499630, at *2 (S.D. Ind. Nov. 13, 2012) (citing Mendenhall v .City of
Indianapolis, 717 N.E.2d 1218, 1226 (Ind. Ct. App. 1999)). “The official seeking absolute immunity
bears the burden of showing that such immunity is justified for the function in question.” Burns v.
Reed, 500 U.S. 478, 486 (1991) (citing Forrester, 484 U.S. at 224).
In this case, the Judges have not met their burden of demonstrating that they are entitled to
absolute judicial immunity for their actions or inactions in relation to their supervision of
Radiceski’s employment, which is an administrative and not a judicial function. See Forrester, 484
U.S. at 229 (holding that a state judge “was acting in an administrative capacity when he demoted

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and discharged” a probation officer and therefore was not entitled to absolute immunity); Ray, 2012
WL 5499630, at *2 (finding that the judge did not have absolute judicial immunity from the § 1983
claim because the act of terminating the plaintiff’s employment was an administrative act (citing
Forrester, 484 U.S. at 227)); Rosenbarger v. Shipman, 857 F. Supp. 1282, 1286 (N.D. Ind. 1994)
(holding that the defendant judge’s termination of the plaintiff probation officer’s employment was
not subject to absolute judicial immunity because “employment decisions concerning probation
officers, while a judge’s statutory duty, are not a traditional juridical function but rather are an
administrative function” (citing Forrester, 474 U.S. at 228-30)); compare Payne v. Cnty. of Cook,
No. 15 C 3154, 2016 WL 1086527, at *8 (N.D. Ill. Mar. 21, 2016) (finding, in a case brought by a
probationer and unrelated to an employment decision, that under Illinois law the judge was entitled
to absolute judicial immunity in his role in overseeing the probation department).
However, Ms. Bostic also alleges a constitutional claim based on the issuance of the October
30, 2014 ex parte court order. See (ECF 81, ¶ 35). Because the issuance of the order falls squarely
within the purview of absolute judicial immunity as a purely judicial act, the Superior Court Judge
Defendants are entitled to absolute judicial immunity on the constitutional claim based on the
October 30, 2014 ex parte court order. See Mireles, 502 U.S. at 12; see also Dawson, 419 F.3d at
660-61.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the
Motion for Judgment on the Pleadings [DE 91]. The Court ORDERS that the § 1983 claims in
Count I against Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas
P. Stefaniak, Jr., and Samual L. Cappas based on the issuance of the October 30, 2014 ex parte order

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are DISMISSED WITH PREJUDICE. The Court further ORDERS that the claims in Count I
against these Defendants otherwise REMAIN PENDING.
SO ORDERED this 12th day of April, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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