Lozanovski v City of Crown Point et al
Filing
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OPINION AND ORDER: For the reasons stated in the Order, the 26 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Court GRANTS the Motion to Dismiss pursuant to Rule 12(b)(6) the claims against Defendant City of Crown Point, Indiana. T he Court ORDERS the Plaintiff to perfect service upon the Defendant Officers by 2/23/2017. If service is not perfected by 2/23/2017, this action will be dismissed without prejudice against the unserved Defendant Officers. Signed by Judge Theresa L Springmann on 1/24/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CRAIG A. LOZANOVSKI,
Plaintiff,
v.
CITY OF CROWN POINT, et al.,
Defendants.
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CAUSE NO.: 2:15-CV-454-TLS
OPINION AND ORDER
This matter comes before the Court on Defendants Scott Bourrell, Derrell Josleyn, Robert
Ballas, Mille Knezevic (collectively “the Defendant Officers”), and City of Crown Point,
Indiana’s Motion to Dismiss [ECF No. 26] the Amended Complaint [ECF No. 25] of Plaintiff
Craig Lozanovski. The City of Crown Point moved to dismiss pursuant to Rule 12(b)(6),
asserting that the Amended Complaint fails to state a claim upon which relief can be granted, and
all Defendants moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(5), asserting that they received insufficient service of process. On August 29,
2016, the Plaintiff filed his Response [ECF No. 30] to the Motion. The Defendants’ Reply [ECF
No. 31] was entered September 8, 2016. This matter is now ripe for the Court’s review.
COMPLAINT ALLEGATIONS
At about 6:30 p.m. on December 17, 2013, “Officer Bourrell came to the Crown Point
Theater . . . to investigate an alleged harassment complaint against the Plaintiff.” (Am. Compl.
¶ 9, ECF No. 25.) Finding the Theater locked, Officer Bourrell knocked on the ticket booth
window, at which point the Plaintiff opened the window and said “Hello, how can I help you?”
(Id. ¶¶ 9–10.) Officer Bourrell said “Open the door I need to talk to you,” so the Plaintiff opened
the main entrance door and met Officer Bourrell “about four feet into the theater.” (Id. ¶¶ 11–
13.) The Plaintiff once more asked if he could help Officer Bourrell while placing his hands in
his jacket pockets, to which Officer Bourrell said, “Take your hands out of your pocket[s].” (Id.
¶¶ 13–14.) He did not immediately take his hands out of his pockets, so Officer Bourrell “put his
hand on his service revolver.” (Id. ¶¶ 15–16.) In response, the Plaintiff removed his hands from
his pockets, raised them into the air, and stated “I have no weapons.” (Id. ¶ 17.)
Officer Bourrell ordered the Plaintiff outside, he grabbed the “Plaintiff by the jacket and
pulled him through the doorway and began punching Plaintiff in the face,” twelve or fifteen
times. (Id. ¶¶ 18–21.) Once outside, Officer Bourrell ordered the Plaintiff to “[g]et to the ground”
while still punching him, but the Plaintiff hesitated because there was “ice and snow on the
ground.” (Id. ¶¶ 22, 24.) “At that point, Officer Ballas put Plaintiff in a choke hold and wrestled
him to the ground” and, while “laying face down on the ground with his hands at his side,”
Officer Josleyn used his Taser on the Plaintiff’s right shoulder twice. (Id. ¶¶ 26–28.)1 Officer
Knezevic eventually arrived on the scene, “did nothing to stop the beating and abuse of the
Plaintiff,” and instead joined in. (Id. ¶ 29.) Finally, the “Plaintiff was handcuffed and taken to the
Crown Point Police station.” (Id. ¶ 30.)2
The “Plaintiff was treated at the hospital and then released to his father,” “never returned
to work,” and in May 2014 “was awarded social security disability . . . and is traumatized when
he goes into the public.” (Id. ¶¶ 32–33.) The Plaintiff alleges claims under 42 U.S.C. § 1983
against the City of Crown Point for violation of his Fourth and Fourteenth Amendment rights,
1
The Amended Complaint does not allege at what point Officers Josleyn or Ballas arrived on the
scene or that either Officer arrived with Officer Bourrell.
2
The Amended Complaint alleges that he “was not booked until December 21, 2015,” but the
Court thinks it is more likely that the Plaintiff’s attorney meant to state that he was not booked for four
days, until December 21, 2013. (Am. Compl. ¶ 30 (emphasis added).)
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and against the Defendant Officers for use of excessive force in violation of his Fourth and
Fourteenth Amendment rights. (Id. ¶¶ 46–48.)
STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in
the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn
from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.
1995).
The Supreme Court has articulated the following standard regarding factual allegations
that are required to survive dismissal:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a 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. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and
footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is
plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556).
Although the court must accept as true all well-pleaded facts and draw all permissible
inferences in the plaintiff’s favor, it need not accept as true “[t]hreadbare recitals of the elements
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of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing
Twombly at 555). Legal conclusions can provide a complaint’s framework, but unless wellpleaded factual allegations move the claims from conceivable to plausible, they are insufficient
to state a claim. Id. at 680. A plaintiff can also plead himself out of court if he pleads facts that
preclude relief. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); Edwards v. Snyder,
478 F.3d 827, 830 (7th Cir. 2007); McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).
Finally, determining whether a complaint states a plausible claim for relief requires a reviewing
court to “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
ANALYSIS
This Court’s subject-matter jurisdiction over the § 1983 claims arises under 28 U.S.C.
§ 1331. The Court first analyzes the sufficiency of the Plaintiff’s § 1983 claim against the City of
Crown Point and then analyzes whether there was insufficient service of process.
A.
Rule 12(b)(6): Failure to State a Claim Upon Which Relief Can Be Granted
The Plaintiff alleges a 42 U.S.C. § 1983 claim, premised on the Fourth and Fourteenth
Amendments, against the City of Crown Point. When public officers violate the constitutional
rights of citizens, § 1983 provides the vehicle for a legal claim. Savory v. Lyons, 469 F.3d 667,
670 (7th Cir. 2006). Section 1983 imposes liability on any “person” who, while acting under
color of state law, deprives an individual of federally protected rights. 42 U.S.C. § 1983; see
Gomez v. Toledo, 446 U.S. 635, 640 (1980). A municipality is a “person” under the law. Monell
v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). However, “Section 1983 does not
establish a system of vicarious responsibility.” Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir.
2009). Instead, “[l]iability depends on each defendant’s knowledge and actions, not on the
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knowledge or actions of persons they supervise.” Id. at 594; see also Monell, 436 U.S. at 694
(holding that a “local government may not be sued under § 1983 for an injury inflicted solely by
its employees or agents”). Therefore, a government entity can be held liable under § 1983 for its
own acts, as opposed to those of its employees, as long as those acts are the moving force behind
the constitutional violation. Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 514–15
(7th Cir. 2007).
A government entity acts through its official policy or custom, which can be
demonstrated by the following:
(1) an express policy that causes a constitutional deprivation when enforced; (2) a
widespread practice that is so permanent and well-settled that it constitutes a
custom or practice; or (3) the constitutional injury was caused by a person with
final policymaking authority.
Id. at 515; Baxter v. Vigo Cty. Sch. Corp., 26 F.3d 728, 735 (7th Cir. 1994). Liability based upon
a widespread practice requires a showing that a number of similar incidents establish an
unconstitutional pattern of conduct. Palmer v. Marion Cty., 327 F.3d 588, 595–96 (7th Cir.
2003).
Here, only two sets of allegations in the Amended Complaint could support § 1983
liability: the incidents of December 17, 2013, and the four separate lawsuits against the City of
Crown Point involving alleged constitutional violations. The Plaintiff argues that these
allegations demonstrate a widespread practice sufficient to survive a Rule 12(b)(6) motion in
accordance with White v. City of Chicago, 829 F.3d 837 (7th Cir. 2016). In White, an arrestee
brought a § 1983 claim against the City of Chicago and one of its police officers for seeking a
warrant to arrest him for a narcotics offense without probable cause. Id. at 840–41. The
complaint alleged that the police officer asked a judge for a warrant without any evidence of a
drug-related offense and included the police department’s “standard printed form that does not
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require specific factual support for an application for an arrest warrant.” Id. at 844. These
allegations met the “short and plain statement of the claim” requirement of Rule 8(a)(2), as the
printed form was direct evidence that tended to show that the municipality was liable under §
1983. Id. (citing Jackson v. Marion Cty., 66 F.3d 151, 152–53 (7th Cir. 1995)).3
The Plaintiff’s reliance on White is misplaced. The allegations in White included direct
evidence that would have raised the right to relief above the speculative level. By contrast, the
four cases filed against the City of Crown Point are not direct evidence that the City has a custom
or policy that violates the Constitution. Further, those cases do not create an inference of liability
for a Monell claim, for “the number of complaints filed, without more, indicates nothing.” See
Strauss v. City of Chi., 760 F.2d 765, 768–69 (7th Cir. 1985) (“People may file a complaint for
many reasons, or for no reason at all. That they filed complaints does not indicate that the
policies that [plaintiff] alleges exist do in fact exist and did contribute to his injury.”); Rikas v.
Babusch, No. 13 CV 2069, 2014 WL 960788, at *3 (N.D. Ill. Mar. 12, 2014) (noting that prior
lawsuits, which were “ultimately settled . . . w[ith] no finding of liability,” did not “evidence a
widespread municipal practice” under Monell).
All that remains for consideration on the Motion to Dismiss the Amended Complaint are
the allegations about the incident on December 17, 2013. “Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing, unconstitutional municipal policy,
which policy can be attributed to a municipal policymaker.” City of Okla. City v. Tuttle, 471 U.S.
808, 823–24 (1985). The Plaintiff does not argue that the incident of December 17, 2013, was the
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White was nevertheless dismissed on other grounds, which are inapplicable to the present case.
829 F.3d at 844 (finding that the police officer’s sworn testimony “provided sufficient evidence to
establish probable cause,” which in turn “establishe[d] that [arrestee] did not suffer a constitutional injury,
. . . a necessary element of a Monell claim.”).
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result of such a policy, nor does he argue that any of the named Defendants had final
policymaking authority. Accordingly, the Amended Complaint fails to state a claim that there
was a widespread practice or custom within the City of Crown Point authorizing the use of
excessive force. Accordingly, the Defendant’s Motion to Dismiss pursuant to Rule 12(b)(6) is
granted as to the claims against the City of Crown Point.
B.
Rule 12(b)(5): Insufficient Service of Process
The Defendants argue that the Plaintiff’s service of process was insufficient, which the
Plaintiff disputes. In the event service of process was insufficient, the Plaintiff seeks leave from
the Court to correct process. The sufficiency of the service of process is analyzed for the
Defendant Officers only because the Court previously dismissed the claims against the City of
Crown Point.
“After commencing a federal suit, the plaintiff must ensure that each defendant receives a
summons and a copy of the complaint against it.” Cardenas v. City of Chi., 646 F.3d 1001, 1004
(7th Cir. 2011). A Rule 12(b)(5) motion is a dismissal based upon insufficient service of process,
the requirements for which are set out in Rule 4(m):
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period . . . .
Furthermore, a party may serve an individual within a judicial district of the United
States by either:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service
is made; or
(2) doing any of the following:
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(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
Fed. R. Civ. P. 4(e). Under Indiana law, a party may serve an individual via certified mail “with
return receipt requested and returned showing receipt of the letter.” Ind. Trial Rule 4.1(a)(1).
Here, the Plaintiff attempted to serve process upon the Defendant Officers via certified mail.
None of the Defendant Officers received the certified mail,4 as Travis Thomas signed for all of
the mailings that the Plaintiff sent to the Defendant Officers.5 An individual’s agent is one of
“those persons having the authority to accept service” on behalf of a party via certified mail
under Indiana law. LaPalme v. Romero, 621 N.E.2d 1102, 1106 (Ind. 1993) (citing Ind. Trial
Rule 4.1(A)(3)); see also Ind. Trial Rule 4.16 (enumerating duties of “[a]nyone accepting service
for another person”). “In order for a court to find that a person acted as a party’s agent by
appointment or agreement, there must be evidence of that appointment or agreement.” Goodman
v. Clark, No. 2:09-CV-355, 2010 WL 2838396, at *8 (N.D. Ind. July 12, 2010) (citing Schultz v.
Schultz, 436 F.2d 635, 638–39 (7th Cir. 1971)).
Here, there are no allegations and no evidence to enable the Court to find that Thomas
was the Defendant Officers’ agent. He stated that he had “never been expressly authorized or
expressly appointed by [the Defendant Officers] to accept service of process on their behalf.”
(Thomas Aff. ¶ 2, ECF No. 27-2.) The Plaintiff offers no evidence in rebuttal, stating only that,
4
The parties briefly discussed whether some of the Defendant Officers had actual notice of the
lawsuit, but that is immaterial to determining whether service of process was sufficient under both Indiana
and federal law.
5
Neither the Amended Complaint, the parties’ briefings on this Motion, or Travis Thomas’s
Affidavit [ECF No. 27-2] allege what Thomas’s employment status was or what his relationship was to
the Defendant Officers. The parties’ briefings appear to treat Thomas as an employee within the police
department.
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“If Mr. Thomas did not have representative capacity, he should not have signed” at the time of
delivery. (Resp. 4.) Whatever the merits of this statement, it does not render the form of service
effected in this case sufficient under the Indiana or federal laws. Therefore, insufficient service
of process was executed upon the Defendant Officers. Pursuant to Rule 4(m), the Court orders
the Plaintiff to perfect service within 30 days of the issuance of this Order.
CONCLUSION
For the reasons stated above, the Motion to Dismiss [ECF No. 26] is GRANTED IN
PART and DENIED IN PART. The Court GRANTS the Motion to Dismiss pursuant to Rule
12(b)(6) the claims against Defendant City of Crown Point, Indiana. The Court ORDERS the
Plaintiff to perfect service upon the Defendant Officers by February 23, 2017. If service is not
perfected by February 23, 2017, this action will be dismissed without prejudice against the
unserved Defendant Officers.
SO ORDERED on January 24, 2017.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
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