Bostic v. Pence et al

Filing 80

OPINION AND ORDER: The Court hereby GRANTS in part and DENIES in part the 76 Motion for Leave to File Second Amended Complaint. The Court ORDERS Plaintiff to FILE the proposed Second Amended Complaint with the modifications ordered herein as well as the proposed summons for Defendants Vasquez, Murray, Boswell, Stefaniak and Cappas on or before 12/15/2017. Signed by Magistrate Judge Paul R Cherry on 12/8/2017. (jss)

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

)
)
)
v.
)
)
STATE OF INDIANA; LAKE COUNTY,
)
INDIANA; LAKE COUNTY, INDIANA, BOARD )
OF COMMISSIONERS; ROOSEVELT ALLEN, )
JR.; GERALD J. SCHEUB; MICHAEL C.
)
REPAY; JAN PARSONS; and MIROSLAV
)
RADICESKI,
)
Defendants.
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)
_____________________________________
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LAKE COUNTY, INDIANA; LAKE COUNTY, )
INDIANA, BOARD OF COMMISSIONERS;
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ROOSEVELT ALLEN, JR.; GERALD J.
)
SCHEUB; and MICHAEL C. REPAY,
)
Cross Claimants,
)
)
v.
)
)
STATE OF INDIANA,
)
Cross Claim Defendant.
)

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

OPINION AND ORDER
This matter is before the Court on a Motion for Leave to File Second Amended Complaint
[DE 76], filed by Plaintiff Lorena E. Bostic on November 8, 2017. Defendant Jan Parsons filed a
response in opposition on November 14, 2017, and Plaintiff filed a reply on November 21, 2017.
BACKGROUND
On November 25, 2015, Plaintiff filed a Complaint in this case, and on December 1, 2015,
she filed an Amended Complaint. On February 8, 2016, Defendants State of Indiana and the five
Superior Court Judge Defendants (Defendants Diane Ross Boswell, Samuel L. Cappas, Clarence D.

Murray, Thomas P. Stefaniak, Jr., and Salvadore Vasquez); Defendant Jan Parsons; and Defendant
Miroslav Radiceski each filed a Motion to Dismiss for failure to state a claim. The Motions to
Dismiss were fully briefed.
On February 8, 2016, Defendant Radiceski filed an Answer. On February 8, 2016,
Defendants Lake County, Indiana; Lake County, Indiana, Board of Commissioners; Michael C.
Repay; Roosevelt Allen, Jr., and Gerald J. Scheub (collectively, the “Lake County Defendants”)
filed an Answer and a Cross Claim against the State of Indiana. On February 16, 2016, Defendant
State of Indiana filed an Answer to the Lake County Defendants’ Cross Claim.
On September 27, 2016, Judge James T. Moody, the presiding judge, issued an Opinion and
Order, granting in part and denying in part the Motions to Dismiss, making the following rulings.
Count I of the Amended Complaint was brought under § 1983 for violations of Plaintiff’s
federal Constitutional rights against only the Superior Court Judge Defendants (Judges Vasquez,
Murray, Boswell, Stefaniak, and Cappas) in their individual capacities, Defendant Jan Parsons
individually, and Defendant Miroslav Radiceski individually. The State of Indiana and the Superior
Court Judges moved to dismiss Count I. In her briefing on the Motion to Dismiss, Plaintiff stated
that she was not pursuing Count I against the judges in their official capacities or against the State
of Indiana. The Court denied the Motion to Dismiss Count I against the judges in their individual
capacities and recognized that Count I was not brought against the State of Indiana.
Defendant Parsons also moved to dismiss Count I, arguing that she is entitled to quasijudicial immunity on the claims in her individual capacity because she was acting within the scope
of her employment to carry out the terms of the Superior Court’s order placing Plaintiff on
probation. In the briefing, Plaintiff narrowed her claim against Parsons in Count I to only liability

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in her individual capacity, namely her retention of Radiceski and her failure to train and supervise
Radiceski adequately. (ECF 41, p. 5). The Court granted in part and denied in part Defendant
Parsons’ Motion to Dismiss as to Count I, ruling that Count I remained pending against Parsons in
her individual capacity for her retention of Radiceski and her failure to train and supervise Radiceski
adequately.
Radiceski did not move for dismissal of Count I. As Count I was not brought against
Defendants State of Indiana or the Lake County Defendants, Count I remained pending against the
five Superior Court Judge Defendants in their individual capacities, Defendant Parsons in her
individual capacity for her retention of Radiceski and her failure to train and supervise Radiceski
adequately, and Defendant Radiceski in his individual capacity.
Count II of the Amended Complaint, titled “Negligence,” was brought under Indiana state
law against all Defendants. The Court dismissed Count II against Defendant State of Indiana, the
five Superior Court Judge Defendants, Defendant Parsons, and against Defendant Radiceski in his
official capacity, leaving Count II pending against Radiceski in his individual capacity. Count II also
remains pending against the Lake County Defendants, who did not file a motion to dismiss.
Count III of the Amended Complaint, titled “Willful and Wanton Misconduct,” was brought
under Indiana state law against only Defendant Radiceski and Defendant Parsons in both their
individual and official capacities. Defendant Parsons moved for dismissal on the basis that she is
entitled to immunity from suit under the Indiana Tort Claims Act (ITCA), Indiana Code § 34-13-3-5,
because she was acting within the scope of her employment. (ECF 32, p. 12). Defendant Parsons
also argued that Plaintiff was on probation and, therefore, is barred from suing an employee who was
acting within the scope of the employee’s employment resulting in personal injuries, citing Indiana

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Code § 34-13-3-3(17). (ECF 32, pp. 12-13). Plaintiff responded to both arguments, asserting that
Parsons does not have immunity. (ECF 41, pp. 6-7). The Court dismissed Count III against
Defendant Parsons based on immunity under the Indiana Tort Claims Act, citing Indiana Code § 3413-3-3(17). (ECF 49, p. 4). The Court also dismissed Count III as to Defendant Radiceski in his
official capacity. Thus, Count III remains pending only against Defendant Radiceski in his
individual capacity.
On November 10, 2016, Defendant Parsons filed an Answer to the Amended Complaint.
On July 12, 2017, the five Superior Court Judge Defendants (Vasquez, Murray, Boswell,
Stefaniak, and Cappas) filed a Motion for Judgment on the Pleadings.
On August 31, 2017, the parties orally agreed on the record to have this case assigned to a
United States Magistrate Judge to conduct all further proceedings and to order the entry of a final
judgment in this case. Therefore, the undersigned Magistrate Judge has jurisdiction to decide this
case pursuant to 28 U.S.C. § 636(c).
The Motion for Judgment on the Pleadings was fully briefed on September 19, 2017, and on
October 2, 2017, the Court issued an Opinion and Order granting the motion and dismissing without
prejudice the remaining claim in Count I against the five Superior Court Judge Defendants in their
individual capacities on the basis that the claims sounded in negligence, which is not actionable
under § 1983. Thus, Count I now remains pending only against Defendant Parsons in her individual
capacity for her retention of Radiceski and her failure to train and supervise Radiceski adequately
and against Defendant Radiceski in his individual capacity.

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ANALYSIS
The Amended Complaint is currently pending as to Count I under § 1983 against Defendant
Parsons in her individual capacity for her retention of Radiceski and her failure to train and
supervise Radiceski adequately and against Defendant Radiceski in his individual capacity; Count
II for negligence against Defendant Radiceski in his individual capacity and the Lake County
Defendants; and Count III for willful and wanton misconduct against Defendant Radiceski in his
individual capacity. No claim in the Amended Complaint remains pending against Defendant State
of Indiana or the Superior Court Judge Defendants. The Cross Claim brought by the Lake County
Defendants against the State of Indiana remains pending.
In the instant motion, Plaintiff seeks leave of Court to file the proposed Second Amended
Complaint but neither identifies for the Court the proposed amendments nor makes any specific
argument in support of the amendments. The Court’s comparison of the Amended Complaint and
the proposed Second Amended Complaint shows the following amendments to the claims in the
Second Amended Complaint: (1) revival of the § 1983 claims in Count I against the five Superior
Court Judge Defendants in their individual capacities; (2) dropping Count II for negligence
(eliminating the remaining claims against the Lake County Defendants); and (3) renewing the
allegations of willful and wanton misconduct against Defendant Parsons in Count III (now pleaded
as Count II).
Federal Rule of Civil Procedure 15(a)(2) provides that a party “may amend its pleading only
with the opposing party’s written consent or the court’s leave” and that “[t]he court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has
explained that “freely give” means that a court should not deny leave to file an amended complaint

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in the absence of any apparent or declared reasons, “such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bausch v. Stryker Corp., 630
F.3d 546, 562 (7th Cir. 2010). The decision whether to grant or deny a motion to amend lies within
the sound discretion of the district court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d
925, 927 (7th Cir. 1990). The standard for futility is the same standard of legal sufficiency that
applies under Federal Rule of Civil Procedure 12(b)(6), see Townsel v. DISH Network LLC, 668
F.3d 967, 969 (7th Cir. 2012); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,
1085 (7th Cir. 1997).
1.

Defendant State of Indiana
No claims are currently pending against Defendant State of Indiana in the Amended

Complaint. Plaintiff’s proposed Second Amended Complaint names Defendant State of Indiana in
the caption but brings no allegations against the State of Indiana in either proposed Count I or Count
II. The Court DENIES the Motion to Amend as to the naming of Defendant State of Indiana in the
caption of the Second Amended Complaint and ORDERS Plaintiff to REMOVE Defendant State
of Indiana from the caption before filing the Second Amended Complaint.
2.

Lake County Defendants
The only claim in the Amended Complaint that remains against the Lake County Defendants

is Count II for negligence, and Plaintiff has dropped her negligence claim in the proposed Second
Amended Complaint. However, the proposed Second Amended Complaint names the Lake County
Defendants (Lake County, Indiana; Lake County, Indiana, Board of Commissioners; Michael C.

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Repay; Roosevelt Allen, Jr.; and Gerald J. Scheub) in the caption. The Court DENIES the Motion
to Amend as to the naming of Defendants Lake County, Indiana; Lake County, Indiana, Board of
Commissioners; Michael C. Repay; Roosevelt Allen, Jr.; and Gerald J. Scheub in the caption of the
Second Amended Complaint. The Court ORDERS Plaintiff to REMOVE Defendants Lake County,
Indiana; Lake County, Indiana, Board of Commissioners; Michael C. Repay; Roosevelt Allen, Jr.;
and Gerald J. Scheub from the caption before filing the Second Amended Complaint.
3.

Proposed Count I—Superior Court Judge Defendants
Count I in the proposed Second Amended Complaint revives Plaintiff’s§ 1983 claim against

the Superior Court Judge Defendants in their individual capacities, which had been dismissed for
failure to state a claim in the Court’s October 2, 2017 Opinion and Order. Because the Superior
Court Judge Defendants were dismissed from the lawsuit, they did not receive notice of the instant
Motion to Amend. Accordingly, there are no arguments before the Court regarding the renewed
Count I against them. Based on the lack of argument on this claim, the Court finds that justice
requires allowing the amendment at this stage of the proceedings and GRANTS the Motion to
Amend as to the claims against the Superior Court Judge Defendants in Count I. This ruling does
not prevent the Superior Court Judge Defendants from filing a motion related to this claim, if
appropriate, once they are served with the Second Amended Complaint and have an opportunity to
respond.
4.

Proposed Count I—Defendant Parsons
In opposition to the instant motion, Defendant Parsons argues that the amendments to the

allegations in Count I of the proposed Second Amended Complaint do not change the original
allegations related to quasi-judicial functions, official capacity claims, or respondeat superior claims

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that were dismissed by the Court in the September 27, 2016 Opinion and Order. See (ECF 49, p. 5).
The Court agrees. To the extent the proposed Second Amended Complaint is attempting to revive
those bases for the claim against Parsons already dismissed from Count I, the Court DENIES the
Motion to Amend. The Court ORDERS that Count I of the proposed Second Amended Complaint
may only be brought against Defendant Parsons in her individual capacity for (1) her retention of
Radiceski and (2) her failure to train and supervise Radiceski adequately. Thus, the Court ORDERS
that Plaintiff (1) REMOVE the allegations in ¶ 40 and (2) MODIFY the allegations in ¶ 50 as to
Defendant Parsons accordingly before filing the Second Amended Complaint.
5.

Proposed Count II—Defendant Parsons
In the September 27, 2016 Opinion and Order, the Court dismissed the willful and wanton

misconduct claim against Defendant Parsons on the basis that she is entitled to immunity under the
ITCA, Indiana Code § 34-13-3-3(17)(A), having considered fully briefed arguments on the claim.
See (ECF 32, pp. 12-13); (ECF 41, pp. 6-7); (ECF 45, pp. 4-6); (ECF 49, p. 4). Count II of the
proposed Second Amended Complaint attempts to revive the claim for willful and wanton
misconduct against Parsons in her individual capacity by adding the word “deliberately” to proposed
paragraph 53b in addition to the other amendments in Count I. These amendments do not change
the Court’s September 27, 2016 ruling based on the ITCA. Therefore, the Court DENIES the
Motion to Amend to the extent that the proposed Second Amended Complaint alleges a claim of
willful and wanton misconduct against Defendant Parsons. The Court ORDERS Plaintiff to
REMOVE the allegations against Defendant Parsons in Count II before filing the Second Amended
Complaint.

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CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the
Motion for Leave to File Second Amended Complaint [DE 76]. The Court ORDERS Plaintiff to
FILE the proposed Second Amended Complaint with the modifications ordered herein as well as
the proposed summons for Defendants Vasquez, Murray, Boswell, Stefaniak, and Cappas on or
before December 15, 2017.
So ORDERED this 8th day of December, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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