Foster v. Land et al

Filing 37

OPINION AND ORDER re defendants' 27 Partial Motion to Dismiss. The court DISMISSES: (1) Count I in its entirety as to Chief Lands; (2) Count I as to Officer Ballas to the extent that it alleges due process violations, excessive force, and fa lse imputation; (3) Count II; (4) Count III; (5) Count IV; (6) Count V; (7) Count VI as to Officer Ballas; (8) Count VII; and (9) Count VIII Mr. Fosters § 1983 claims against Officer Ballas for unlawful search andseizure and false arrest and his state law false imprisonment claim against Chief Lands survive. Signed by Judge Robert L Miller, Jr on 7/25/2016. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BRANDON DARNELL FOSTER,
PLAINTIFF,
VS.

CHIEF PETE LAND IN HIS OFFICIAL
CAPACITY AND OFFICER R. BALLAS IN
HIS INDIVIDUAL CAPACITY,
DEFENDANTS.

)
)
)
)
)
)
)
)
)
)
)

CAUSE NO. 2:16-CV-45-RLM-PRC

OPINION and ORDER
Plaintiff Brandon Darnell Foster sued the police officer who arrested him
and the chief of the police department, bringing state law tort claims and claims
for constitutional violations under 42 U.S.C. § 1983. This matter is before the
court on the defendants’ partial motion to dismiss.

I. BACKGROUND
To state a claim within the meaning of Rule 12(b)(6), a complaint “must
provide only enough detail to give the defendant fair notice of what the claim is
and the grounds upon which it rests, and, through his allegations, show that it
is plausible, rather than merely speculative, that he is entitled to relief.” Tamayo
v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). A complaint may survive a
motion to dismiss under Rule 12(b)(6) if it contains sufficient factual allegations
to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Adams v. City of

Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Detailed facts and evidence aren’t necessary, but “bare
legal conclusions” need not be accepted as true and a “formulaic recitation of a
cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. at
547.
Mr. Foster, an African American man, was driving his car in Crown Point,
Indiana when Officer Ballas of the Crown Point Police Department stopped him.
Mr. Foster identified himself and gave Officer Ballas his Illinois driver’s license,
his birth date, and his Social Security number. Officer Ballas used Mr. Foster’s
personal information to run a Bureau of Motor Vehicles check, and the check
revealed that Mr. Foster’s license was valid and there were no outstanding
warrants for his arrest.
Officer Ballas then “further searched records,”1 and discovered another
individual with the same first name, last name, and birth date as Mr. Foster.
This other Brandon Foster had a different Social Security number and different
middle initial than Mr. Foster, and had a suspended Indiana driver’s license
rather than a valid Illinois one. Officer Ballas incorrectly accused Mr. Foster of

Mr. Foster’s complaint doesn’t specify what further records Officer Ballas searched or
how he conducted that search.

1

-2-

being the same person as the other Brandon Foster, assuming that he had used
an alias to obtain his valid Illinois license after the suspension of his Indiana
license. Officer Ballas placed Mr. Foster under arrest, took him to jail, and towed
his car. When Mr. Foster got to the jail, the jail personnel fingerprinted him and
entered his fingerprints into the IAFIS national fingerprint database under the
name of the other Brandon Foster, who Mr. Foster believes is “a hardened
criminal.” Mr. Foster remained in jail for an unspecified period of time, after
which all charges against him were dismissed. Mr. Foster believes he has lost
employment opportunities as a result of his fingerprints being associated with
the other Brandon Foster’s criminal history.

II. DISCUSSION
Mr. Foster sued Officer Ballas in his individual capacity, and sued the chief
of the Crown Point Police Department, Pete Land, in his official capacity. The
defendants concede that Mr. Foster states a § 1983 claim for false arrest or false
imprisonment, and a claim for false imprisonment under Indiana state law. The
defendants move to dismiss all the rest of Mr. Foster’s claims pursuant to Federal
Rule of Civil Procedure 12(b)(6).

A. § 1983 Claims as to Chief Land
All of Mr. Foster’s federal claims against Chief Land must be dismissed.
Mr. Foster doesn’t allege that Chief Land was personally involved in any of the
-3-

events he complains of; instead, Chief Land is being sued only in his official
capacity. Official capacity suits “generally represent only another way of pleading
an action against an entity of which an officer is an agent.” Monell v. New York
City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978). Such a suit is “in
all respects other than name, to be treated as a suit against the entity.” Kentucky
v. Graham, 473 U.S. 159, 166 (1985).
Count I alleges that Officer Ballas violated Mr. Foster’s constitutional
rights in various ways, and says that the violations were a “direct and proximate
result of [Chief Land’s] policy and/or custom” of permitting his employees to
violate the rights of suspects. Count II makes essentially the same claim by
alleging that Chief Land is liable for the constitutional violations in Count I
because he had a policy of not adequately instructing, training, or supervising
his officers. Section 1983 ordinarily allows a plaintiff only to sue the state actor
who personally harmed him rather than that actor’s supervisor or employer. An
exception exists when the constitutional violation was a proximate result of a
high-level policy or custom. See Monell v. Department of Social Services of City
of New York, 436 U.S. at 694-695 (holding that § 1983 doesn’t permit respondeat
superior liability, but does allow claims against local governments for official
policies or unwritten customs that violate federal rights).
To establish liability under Monell, a plaintiff must demonstrate: “(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
-4-

custom or practice; or (3) an allegation that the constitutional injury was caused
by a person with final policymaking authority.” Waters v. City of Chicago, 580
F.3d 575, 581 (7th Cir. 2009). Mr. Foster alleges that Chief Land is liable because
“pursuant to official policy or custom,” he “failed to instruct, supervise, control,
and/or discipline on a continuing basis” Officer Ballas. He suggests that Officer
Ballas’s actions were “not an isolated incident” but rather reflect that the Crown
Point Police Department inadequately trains its officers regarding racial profiling
and respecting the rights of suspects.
The claims against Chief Land must be dismissed because Mr. Foster’s
Monell claim is inadequate even under the liberal pleading standards embodied
in the Federal Rules. Mr. Foster doesn’t allege any facts at all to suggest why he
believes Officer Ballas’s actions were the result of a policy or practice rather than
an individual mistake. He simply says that every allegedly problematic thing
Officer Ballas did (or failed to do) must have been the result of an official policy.
This isn’t enough to survive a motion to dismiss; “[t]o state a Monell claim, a
plaintiff is required to plead factual content that allows the court to draw the
reasonable inference that the [supervisor or government entity] maintained a
policy, custom, or practice” that deprived him of his constitutional rights.
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (internal citations
omitted). “To allow otherwise would be tantamount to allowing suit to be filed on
a respondeat superior basis. Plaintiffs could file claims whenever a police officer
abused them, add Monell boilerplate allegations, and proceed to discovery in the
-5-

hope of turning up some evidence to support the ‘claims’ made.” Strauss v. City
of Chicago, 760 F.2d 765, 768 (7th Cir. 1985).
That’s what Mr. Foster has done. Believing his rights were violated by a
particular police officer, Mr. Foster also sues the chief of police by tacking on a
boilerplate allegation that the officer’s conduct resulted from a policy or practice.
“The absence of any facts at all to support plaintiff's claim [of a policy or practice]
renders the allegations mere legal conclusions of Section 1983 liability devoid of
any well-pleaded facts.” Id. at 767. Courts in this circuit routinely dismiss
formulaic, bare-bones Monell claims against police departments in situations
where a plaintiff offers nothing to suggest that his allegations about a policy or
practice are anything more than hopeful speculation. See, e.g., White v. City of
Chicago, No. 11 C 7802, 2014 WL 958714, at *3 (N.D. Ill. Mar. 12, 2014); Pam
v. City of Michigan City, Indiana, No. 3:12–cv–265, 2012 WL 4060970, *3 (N.D.
Ind. Sept. 7, 2012); Nevinger v. Town of Goodland, Indiana, No. 4:11-cv-25, 2011
WL 2694662 (N.D. July 12, 2011); Johnson v. Anderson, No. 1:10–cv–1276, 2011
WL 43220, *2 (S.D. Ind. Jan. 3, 2011); Land. v. Wayne County Sheriff’s
Department, No. 1:09–cv–365, 2010 WL 2195454, *3 (S.D. Ind. May 29, 2010).
Mr. Foster’s complaint doesn’t state a federal claim against Chief Land in
his official capacity. Count II of the complaint must be dismissed in its entirety,
and Count I must be dismissed as to Chief Land.

B. § 1983 Claims as to Officer Ballas
-6-

Count I of Mr. Foster’s complaint alleges that Officer Ballas violated his
Fourth, Fifth, and Fourteenth Amendment rights by: (1) falsely arresting him; (2)
restricting his liberty without due process of law; (3) unreasonably searching and
seizing him and his property; (4) falsely imputing to him criminal behavior; and
(5) subjecting him to excessive force.
To succeed on his § 1983 claim, Mr. Foster will need to prove the
deprivation of a right secured by the Constitution or federal law and that the
defendants were acting under color of state law. Armato v. Grounds, 766 F.3d
713, 719–720 (7th Cir. 2014). The defendants concede that the facts alleged in
Mr. Foster’s complaint state a false arrest claim against Officer Ballas, but argue
that Mr. Foster doesn’t adequately state a claim for any of the other
constitutional violations mentioned in the complaint.
Mr. Foster’s Fourteenth Amendment due process claim based on the
deprivation of his liberty from the mistaken arrest must be dismissed. A person
whose constitutional rights are violated by a state actor can’t bring a separate
due process claim if the state makes available an adequate remedy for the
underlying violation. See Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.
1984). The plaintiff in Guenther brought claims very similar to Mr. Foster’s, and
the court of appeals held that the plaintiff couldn’t prevail on his due process
claim because “there are Wisconsin tort remedies for matters which form the
basis of [the plaintiff’s] claim that he was deprived of liberty without due process
of law. Specifically, claims for false arrest, false imprisonment, and malicious
-7-

prosecution are all actionable in Wisconsin.” Id. at 882. Like Wisconsin, Indiana
permits a wrongfully arrested person to bring an action against arresting officer
for false arrest, false imprisonment, or assault and battery. See Drake v.
Lawrence, 524 N.E.2d 337 (Ind. App. 1988) (false arrest); Gomez v. Adams, 462
N.E.2d 212 (Ind. App. 1984) (false arrest, false imprisonment, and assault and
battery). Because Mr. Foster can seek a remedy for false arrest in state court, he
hasn’t been deprived due process of law; Indiana provides all the process
necessary to challenge the false arrest. See Hood v. City of Chicago, 927 F.2d
312, 314 (7th Cir. 1991) (“Guenther appears therefore to foreclose [Plaintiff's]
Fourteenth Amendment claim since he alleges that he was deprived of his liberty
without due process of law, yet Illinois provides adequate state tort law remedies
such as false imprisonment or false arrest”).
Mr. Foster’s claims for illegal search and seizure in violation of the Fourth
Amendment, on the other hand, can go forward. To prevail under § 1983 on this
claim, Mr. Foster will have to establish that Officer Ballas’s conduct constituted
a search or seizure and that the search or seizure was unreasonable under the
circumstances. See Bielanski v. County of Kane, 550 F.3d 632, 637 (7th Cir.
2008). The defendants argue that Mr. Foster alleged nothing other than an
ordinary search incident to arrest, and suggest that this claim is therefore
duplicative of his false arrest claim.
The complaint says that Officer Ballas engaged in an unreasonable search
and seizure “of Plaintiff’s personal property and self,” but doesn’t elaborate
-8-

further. With regard to the seizure of Mr. Foster’s person, the defendants’
insistence that the search and seizure claims must be dismissed is puzzling given
that the defendants concede Mr. Foster adequately alleged a claim for false
arrest. A § 1983 claim for false arrest is a claim that a person was seized
unreasonably in violation of the Fourth Amendment; the two are simply different
terms relating to the same underlying allegation that an officer restrained a
person’s liberty without probable cause. See Devenpeck v. Alford, 543 U.S. 146,
152 (2004) (“[A] warrantless arrest by a law officer is reasonable under the Fourth
Amendment where there is probable cause to believe that a criminal offense has
been or is being committed.”); Morfin v. City of East Chicago, 349 F.3d 989, 997
(7th Cir. 2003) (holding that the existence of probable cause is the critical inquiry
in a § 1983 suit for false arrest).
Whether Mr. Foster has adequately stated a search-and-seizure claim as
to anything other than his person is a closer question, because the complaint
doesn’t identify the “personal property” Mr. Foster alleges the police searched
and seized. Because the complaint’s factual summary alleges that Mr. Foster’s
car was towed to the police station, however, Mr. Foster has done enough to put
the defendants on notice that he challenges the constitutionality of the search
and seizure of his car.
Mr. Foster also bases his § 1983 claim on the allegation that the
defendants violated his constitutional rights by “[f]alsely imputing criminal
behavior against Plaintiff via associating Plaintiff’s fingerprints with that [sic] of
-9-

Brandon J. Foster.” Mr. Foster alleges that this conduct violated his
constitutional rights, but doesn’t clarify how. The court is unaware of any
constitutional provision that protects an arrestee’s right to be accurately
fingerprinted, and Mr. Foster suggests none. To the extent that Mr. Foster alleges
the inaccurate fingerprinting as an independent constitutional violation, such a
claim must be dismissed. But to the extent Mr. Foster alleges the fingerprinting
only as a harmful consequence of the false arrest, he may be able to recover
damages based on the fingerprinting if he prevails on his false arrest claim.
“[W]hen an illegal arrest sets off a chain of indignities inflicted on the hapless
victim… [he] is entitled to obtain damages for these indignities whether or not
they are independent violations of the Constitution.” Herzog v. Village of
Winnetka, Illinois, 309 F.3d 1041, 1044 (7th Cir. 2002).
Finally, Mr. Foster doesn’t state a § 1983 claim based on excessive force.
The only mention of force anywhere in the complaint is a sentence stating
without context or elaboration that Officer Ballas “exerted excessive force on
Plaintiff’s person.” This sort of conclusory legal fluff isn’t entitled to a
presumption of truth even at the pleading stage. The actual facts alleged in Mr.
Foster’s complaint don’t make out a claim for excessive force; he says that Officer
Ballas arrested him and transported him to the police station, but makes no
mention of the circumstances of the arrest or the degree of force involved. Mr.
Foster’s response to the motion to dismiss doesn’t address the defendants’ attack

-10-

on his excessive force claim at all, so he seems to have waived any argument that
his complaint adequately alleges excessive force.
Accordingly, the court dismisses the due process portion of Mr. Foster’s §
1983 claim with prejudice because an adequate state remedy was available to
him. The excessive force portion of his § 1983 claim must be dismissed without
prejudice, because Mr. Foster could conceivably amend his complaint to
adequately state an excessive force claim. Mr. Foster’s allegation that he was
inaccurately fingerprinted doesn’t state a separate cause of action under § 1983
and so must be dismissed with prejudice, though it might be permissible as an
element of damages stemming from false arrest. Mr. Foster’s § 1983 claims for
false arrest and unreasonable search and seizure can go forward.

C. Count III - Humiliation
Count III alleges that the actions of Officer Ballas “resulted in humiliation
of Plaintiff and injury to Plaintiff’s reputation.” The defendants point out that
“humiliation” is an element of damages rather than a separate cause of action
under Indiana law, and Mr. Foster concedes the point in his response brief.
Accordingly, Count III is dismissed with prejudice.

D. Count V – Assault and Battery
The defendants argue that Count V – Mr. Foster’s state law assault and
battery claim – must be dismissed because he alleges only reasonable use of
-11-

force by a police officer discharging his lawful duties. While the defendants frame
this as an argument based on the state law privileging law enforcement officers
to use reasonable force, Count V is insufficient for a more basic reason: it doesn’t
state a plausible claim for assault and battery under Rule 8.
As already noted with regard to Mr. Foster’s § 1983 excessive force claim,
the complaint contains absolutely no factual allegations about what happened
during the course of the arrest. In the factual section of the complaint, Mr. Foster
alleges that Officer Ballas “arrested Plaintiff for having a suspended license” and
“transported Plaintiff to the Lake County Jail.” Nowhere does Mr. Foster allege
that Officer Ballas actually touched him, tried to touch him, or did anything to
cause him to fear being touched – elements that he must plead to state a claim
for assault and battery. Mr. Foster makes such allegations in the portion of his
complaint explaining Count V, saying without elaboration that the arrest “caused
Plaintiff to have a reasonable fear that unlawful and unconsented contact was
about to occur” and that Officer Ballas “touched Plaintiff in a rude, insolent, or
angry manner.” But these allegations are simply boilerplate recitations of the
elements of the cause of action, unsupported by any factual basis. The Rule 8
pleading standard is generous to plaintiffs, but “it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Without such elementary information as what the
alleged offensive touching was or what Officer Ballas did to put Mr. Foster in
fear, the defendants can’t defend against Mr. Foster’s claim because the
-12-

complaint doesn’t adequately put them on notice of the basis for the claims
against them. Because a later iteration of the complaint could conceivably flesh
this claim out enough to meet Mr. Foster’s pleading burden, the court dismisses
Count V without prejudice.

E. State Claims as to Officer Ballas
The remaining counts IV, VI, VII, and VIII of Mr. Foster’s complaint are
state law tort claims for negligence, false imprisonment, defamation and
intentional infliction of emotional distress. These claims are all brought against
both Officer Ballas in his individual capacity and Chief Land in his official
capacity.
All the claims must be dismissed as to Officer Ballas, because he is
immune from individual liability under the Indiana Tort Claims Act. Whether the
Tort Claims Act immunizes a defendant is a question of law properly decided by
the court. See City of Anderson v. Davis, 743 N.E.2d 359, 362 (Ind. Ct. App.
2001). In Indiana, “[a] lawsuit alleging that an employee acted within the scope
of the employee’s employment bars an action by the claimant against the
employee personally.” Ind. Code § 34-13-3-5(b); see also Ball v. City of
Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014) (“Under the Indiana Tort Claims
Act, there is no remedy against the individual employee so long as he was acting
within the scope of his employment.”). If an alleged action is within the “general
scope” of an employee’s authority, “it is ‘authorized’ within the meaning of the
-13-

Tort Claims Act, regardless of whether it was done negligently or with improper
motive.” Marten v. Swain, 1:12–CV–195, 2013 WL 3155487, at *3 (S.D. Ind. June
20, 2013) (quoting Butt v. McEvoy, 669 N.E. 2d 1015, 1018 (Ind. Ct. App. 1996)).
Mr. Foster insists that he can escape the immunity provision of the Tort
Claims Act because he has alleged that Officer Ballas’s actions were outside the
scope

of

his

employment

and

were

willful,

wanton,

and

malicious.

Notwithstanding the broad protection Indiana provides for employees acting
within the scope of their duties, immunity doesn’t apply where a complaint
alleges conduct by the employee that is “(1) criminal; (2) clearly outside the scope
of the employee’s employment; (3) malicious; (4) willful and wanton; or (5)
calculated to benefit the employee personally.” Ind. Code § 34–13–3–5(c). For
each of the state law counts, Mr. Foster’s complaint alleges both that Officer
Ballas was acting within the scope of his employment (as it must in order to state
a claim against Chief Land in his official capacity) and that Officer Ballas’s
actions were “clearly outside the scope of the employee’s employment; and/or
malicious; and/or willful and wanton” (as it must in order to state a claim against
Officer Ballas individually). Pleading in the alternative is permissible generally,
Fed. R. Civ. P. 8(d), but a conclusory statement that a particular act is outside
the scope of a police officer’s duty or is willful and wanton isn’t entitled to a
presumption of truth – when ruling on a motion to dismiss, the court ignores
such boilerplate and looks to the plaintiff’s factual allegations.

-14-

The facts alleged in Mr. Foster’s complaint establish that Officer Ballas
acted within the scope of his employment, and none of Mr. Foster’s factual
allegations rise to the level of malicious or wanton misconduct. “The actions of
pulling someone over, arresting him, etc. are within the general scope of a police
officer’s authority under the law.” Reiner v. Dandurand, 33 F. Supp. 3d 1018,
1032 (N.D. Ind. 2014) (dismissing claims against officer in his individual
capacity, where complaint included boilerplate statement that acts were outside
the scope of the officer’s employment but the only facts alleged related to the
officer’s arrest of the plaintiff). All the actions attributed to Officer Ballas in the
complaint – pulling over a motorist, checking records, making an arrest, and
transporting a suspect to jail – are within the general scope of a police officer’s
duties and are performed in furtherance of the police department’s business. The
only allegations in the complaint about malicious or wanton conduct are
conclusory recitations of those terms. Mr. Foster can’t escape the Tort Claims
Act simply by tacking such unsupported boilerplate onto each of his claims. His
extremely sparse complaint alleges only that Officer Ballas went too far in
searching license records after the initial search came up clean, and
consequently arrested the wrong man. Those allegations don’t rise to the level of
willful, wanton, or malicious conduct.
Because the complaint on its face establishes that Officer Ballas was
acting within the scope of his employment and doesn’t adequately allege
criminal, malicious, or willful and wanton conduct, Officer Ballas is immune
-15-

from individual liability under the Tort Claim Act. Counts IV through VIII are
therefore dismissed with prejudice as to Officer Ballas.

F. State Law Claims as to Chief Land
While Officer Ballas is individually immune from liability for acts taken in
furtherance of the police department’s business, this immunity doesn’t extend
to Chief Land in his official capacity. Instead, the defendants rely on a different
source of immunity: the Indiana Tort Claims Act’s separate law enforcement
immunity provision. The defendants argue that this provision makes them
immune to all of Mr. Foster’s state law claims other than Count VI (false
imprisonment).2
The Tort Claims Act provides that a government entity “is not liable if a
loss results from…enforcement of or failure to adopt or enforce: (A) a law
(including rules and regulations)” unless “the act of enforcement constitutes false
arrest or false imprisonment.” Ind. Code § 34–13–3–3(8)(A). “[A]dd on” claims
“such as negligence and intentional infliction of emotional distress do not survive
simply because they are a product of improper conduct,” even when they relate
to a claim that escapes the immunity provision such as false arrest or false

As the defendants admit, a claim for assault and battery based on allegations of
excessive force also escapes the law enforcement immunity provision. See Wilson v.
Isaacs, 929 N.E.2d 200, 203 (Ind. 2010). Because the court dismisses Mr. Foster’s state
law battery claim for the reasons already discussed, it isn’t necessary to decide whether
that claim is barred by law enforcement immunity.
2

-16-

imprisonment. Struck v. Town of Fishers, Indiana, No. 1:11-CV-1521, 2013 WL
1149718, at *3 (S.D. Ind. Mar. 19, 2013) (citing Miller v. City of Anderson, 777
N.E. 2d 1100, 1104 (Ind. Ct. App. 2002).
Mr. Foster appears to concede that law enforcement immunity defeats all
of his state law claims other than assault and battery and false imprisonment.
His response brief doesn’t address the defendants’ immunity arguments as to
any of the other state law claims, and argues only that “the claims of assault,
battery, false imprisonment, and excessive force should be allowed to proceed.”
Accordingly, Mr. Foster has waived the argument that his other state law claims
are not barred by the law enforcement immunity provision of the Tort Claims
Act. See McAllister v. Town of Burns Harbor, 693 F. Supp. 2d 815, 823 (N.D.
Ind.), aff'd sub nom. McAllister v. Price, 615 F.3d 877 (7th Cir. 2010) (noting that
“because the Plaintiff has failed to offer any argument supporting liability” in
response to the defendants’ immunity arguments, “he has waived the issue.”).
Counts IV, VII, and VIII of Mr. Foster’s complaint are dismissed with prejudice.

G. Leave to Amend
Because Mr. Foster could conceivably file an amended complaint that
cures the deficiencies in his § 1983 excessive force claims, his § 1983 Monell
policy or practice claims, and his state law assault and battery claims, these
portions of Counts I, II, and V are dismissed without prejudice and with leave to
amend. Because Mr. Foster’s § 1983 due process and false imputations claims
-17-

in Count I and his state law claim for “humiliation” in Count III can’t be saved
by amendment, these claims are dismissed with prejudice. Similarly, all state
law claims against Officer Ballas and Counts IV, VII, and VIII against Chief Land
fail due to the immunity provisions in the Indiana Tort Claims Act and are
therefore dismissed with prejudice.

III. CONCLUSION
For the reasons stated above, the court DISMISSES: (1) Count I in its
entirety as to Chief Lands; (2) Count I as to Officer Ballas to the extent that it
alleges due process violations, excessive force, and false imputation; (3) Count
II; (4) Count III; (5) Count IV; (6) Count V; (7) Count VI as to Officer Ballas; (8)
Count VII; and (9) Count VIII.
Mr. Foster’s § 1983 claims against Officer Ballas for unlawful search and
seizure and false arrest and his state law false imprisonment claim against Chief
Lands survive.
SO ORDERED.
ENTERED: July 25, 2016

/s/ Robert L. Miller, Jr.
Judge
United States District Court

-18-