Bostic v. Pence et al

Filing 73

OPINION AND ORDER GRANTING 61 MOTION for Judgment on the Pleadings by Defendants Diane Ross Boswell, Samuel L Cappas, Clarence D Murray, Thomas P Stefaniak, Jr, Salvadore Vasquez. The only remaining claims (which are in Count 1) against Defendants Diane Ross Boswell, Samuel L Cappas, Clarence D Murray, Thomas P Stefaniak, Jr and Salvadore Vasquez are DISMISSED WITHOUT PREJUDICE. Signed by Magistrate Judge Paul R Cherry on 10/2/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LORENA E. BOSTIC,
Plaintiff,
v.
STATE OF INDIANA, et al.,
Defendants.

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

OPINION AND ORDER
This matter is before the Court on a Motion for Judgment on the Pleadings [DE 61], 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 July 12, 2017. Plaintiff
Lorena E. Bostic filed a response on September 15, 2017, and Defendants filed a reply on September
19, 2017.
PROCEDURAL BACKGROUND
Plaintiff filed her Amended Complaint on December 1, 2015. Count I of the Amended
Complaint is brought under 42 U.S.C. § 1983 against several defendants, including the Superior
Court Judge Defendants. Count II alleged a claim of negligence. On September 27, 2016, the Court
dismissed the Count II negligence claim against the Superior Court Judge Defendants. As for Count
I, the Court recognized that Plaintiff was not bringing official capacity claims against the Superior
Court Judge Defendants but declined to address the propriety of the § 1983 individual capacity
claims because the Superior Court Judge Defendants did not address the issue in the Motion to
Dismiss. These claims remain pending and are the subject of the instant Motion to Dismiss.

In the Amended Complaint, Plaintiff alleges that she was sexually assaulted by Defendant
Miroslav Radiceski while he was serving as her probation officer. The General Allegations of the
Amended Complaint provide, in relevant part,
18.

That the Defendants State of Indiana; Lake County, Indiana; the Lake
County, Indiana, Board of Commissioners; and the Judges of the Superior
Court of Lake County, Criminal Division, were charged with the duty, inter
alia, of providing appropriate facilities and qualified staff for the operation
of the felony Probation Department of the Superior Court of Lake County,
Criminal Division, which was under the direct supervision of the Judges of
the Superior Court of Lake County, Criminal Division, of which the
Honorable Diane Ross Boswell was the Senior Judge.

19.

That at all times relevant hereto, all of the Defendant Judges of the Superior
Court of Lake County, Criminal Division and/or their employees and agents
had the duty, inter alia, to take reasonable steps to protect probationers from
injuries or damages caused by employees of the Defendants and to otherwise
adequately assure the safety and supervision of probationers under the
administration, supervision and control of the felony Probation Department
of the Superior Court of Lake County, Criminal Division.

20.

That at all times mentioned herein it was the further duty of the Defendant
Judges of the Superior Court of Lake County, Criminal Division, and Jan
Parsons, the Director and Chief Probation Officer of the felony Probation
Department, to maintain proper and adequate supervision of the employees
of the felony Probation Department, who had been entrusted with a position
of authority and trust over probationers, to protect and preserve the safety of
probationers and provide Lorena E. Bostic and other probationers with
guidance, supervision and direction.

21.

That at all times mentioned, it was the further duty of the Defendant Judges
of the Superior Court of Lake County, Criminal Division, and Jan Parsons,
the Director and Chief Probation Officer of the felony Probation Department,
to take precautions reasonable under the circumstances to protect the life,
health and safety of Lorena E. Bostic and other probationers.

22.

That at all times relevant to this AMENDED COMPLAINT, Defendant
Judges of the Superior Court of Lake County, Criminal Division, and Jan
Parsons, Director and Chief Probation Officer of the felony Probation
Department, were aware of problems and investigations involving
deficiencies in the conduct of Miroslav Radiceski in his relations with and
supervision of probationers.
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23.

That the 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 problems which
had occurred in the past, took little or no action to remedy such problems but
instead were maliciously indifferent to the problems such that said
Defendants, collectively and individually, knew or should have known that
a serious breach of security, trust, guidance and protection was inevitable.

(ECF 5, ¶ 18-23). In relevant part, Count I alleges:
53.

That the Defendant Judges of the Superior Court of Lake County, Criminal
Division; the Director of the Lake County felony Probation Department, Jan
Parsons; and their employees and agents breached their duty to the Plaintiff,
Lorena E. Bostic, through their denial to her of the rights, privileges and
immunities guaranteed by the Constitution in their administration,
supervision and management of the Lake County felony Probation
Department in the following manner:
a.

Hiring, retaining and entrusting, in a position of authority and trust,
the supervision of probationers to an employee who was known or
should have been known to said Defendants 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 would reasonably
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
guidance, supervision and direction to Lorena E. Bostic and other
probationers;

d.

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

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e.

Failing to take proper precautions and exercise due care for the safety
and well being of probationers when visiting the offices of the felony
Probation Department at any of its facilities; and

f.

Permitting Lorena E. Bostic to be exposed to 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.

Id. at ¶ 53 (emphasis added). The Amended Complaint further alleges “[t]hat as a direct and
proximate result of the [Superior Court Judge Defendants’] actions,” Plaintiff was injured. Id. at ¶
54.
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 remaining claims against the
Superior Court Judge Defendants, namely the individual capacity claims brought under 42 U.S.C.
§ 1983 in Count I. 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 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
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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 his 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.
Defendants argue that the remaining claims in Count I against the Superior Court Judge
Defendants are nothing more than a claim for negligence, which cannot form the basis of § 1983
claim. The United States Supreme Court has rejected the idea that liability for “negligence” exists
under § 1983. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (“Historically, this guarantee of
due process has been applied to deliberate decisions of government officials to deprive a person of
life, liberty, or property.”). More recently, the Supreme Court reiterated that “liability for negligently
inflicted harm is categorically beneath the threshold of constitutional due process.” Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2472 (2015) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849
(1998)); see also Davis v. Wessel, 792 F.3d 793, 801-02 (7th Cir. 2015).
In response, Plaintiff agrees that a mere claim of negligence cannot be the basis for a § 1983
claim, but does nothing more than quote several paragraphs of the Amended Complaint. Plaintiff

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does not identify any allegations in the Amended Complaint or make any arguments that
demonstrate anything more than allegations of negligence. Plaintiff does not allege that the Superior
Court Judge Defendants acted with deliberate or reckless disregard to her constitutional rights or that
her alleged deprivation of constitutional rights occurred at the Superior Court Judge Defendants’
direction or with their knowledge or consent. “Far from an abuse of power, lack of due care suggests
no more than a failure to measure up to the conduct of a reasonable person. To hold that injury
caused by such conduct a deprivation within the meaning of the Fourteenth Amendment would
trivialize the centuries-old principle of due process of law.” Daniels, 474 U.S. at 332.
Accordingly, the Amended Complaint fails to state a claim against the Superior Court Judge
Defendants.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Motion for Judgment on the
Pleadings [DE 61]. The Court ORDERS that the only claims remaining against Defendants Salvador
Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas P. Stefaniak, Jr., and Samual L.
Cappas, which are in Count 1, are hereby DISMISSED WITHOUT PREJUDICE.
SO ORDERED this 2nd day of October, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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