Kuhlmey v. City of Hammond et al
Filing
12
OPINION AND ORDER denying 7 MOTION to Dismiss and Strike Portions of Plaintiff's Complaint as Impertinent and Scandalous filed by City of Hammond and Brian Miller. Signed by Senior Judge James T Moody on 9/30/16. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NANCY KUHLMEY, Personal
Representative of the Estate of John
Edwards Brown, II, deceased,
Plaintiff,
v.
CITY OF HAMMOND, et al.,
Defendants.
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No. 2:16 CV 56
OPINION and ORDER
I.
BACKGROUND
In her complaint, plaintiff alleges that the Hammond Police Department (“HPD”)
visited the home of the decedent, John Edwards Brown, II, and his wife Jennifer Brown,
on February 16, 2014. Plaintiff further alleges that John had a steak knife in his hand or
one in each hand, and HPD officers fired multiple gunshots at him, causing his death.
(DE # 1.)
Plaintiff filed the present suit against the City of Hammond and Brian Miller in
his capacity as Chief of Police for HPD (“defendants”), among others. Defendants have
moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Count II of
plaintiff’s complaint, which alleges a violation of 42 U.S.C. § 1983 for failure to train and
supervise its work force and for employing a “shoot first, ask questions later” policy.
(DE # 1 at ¶¶ 59, 60.) Defendants have also moved to strike the parts of the complaint
using the phrase “shoot first, ask questions later” as scandalous under Federal Rule of
Civil Procedure 12(f).
II.
DISCUSSION
A.
Rule 12(b)(6) Motion to Dismiss
Defendants have moved to dismiss plaintiff’s claims under Rule 12(b)(6) for
failure to state a claim upon which relief may be granted. A judge reviewing a
complaint under a Rule 12(b)(6) standard must construe it in the light most favorable to
the non-moving party, accept well-pleaded facts as true, and draw all inferences in the
non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Reger Dev., LLC v. Nat’l
City Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the liberal notice-pleading
requirements of the Federal Rules of Civil Procedure, the complaint need only contain
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). To satisfy Rule 8(a), “the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson,
551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“While the federal pleading standard is quite forgiving, . . . the complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011);
Twombly, 550 U.S. at 555, 570. A plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To meet this standard, a complaint
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does not need detailed factual allegations, but it must go beyond providing “labels and
conclusions” and “be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, 40 F.3d 247,
251 (7th Cir. 1994) among other authorities). As the Seventh Circuit recently explained,
a complaint must give “enough details about the subject-matter of the case to present a
story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
However, the plaintiff does not need to plead facts that establish each element of
a cause of action and, “[a]t this stage the plaintiff receives the benefit of imagination, so
long as the hypotheses are consistent with the complaint.” Sanjuan, 40 F.3d at 251. Even
if the truth of the facts alleged appears doubtful, and recovery remote or unlikely, the
court cannot dismiss a complaint for failure to state a claim if, when the facts pleaded
are taken as true, a plaintiff has “nudged their claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 555, 570.
In order to sue a municipality under Section 1983, a plaintiff must assert and
ultimately prove that his constitutional rights were violated by some official policy or
custom of the municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). One
way to satisfy Monell is to demonstrate the existence of a pattern or practice so
widespread that it rises to a level of policy which can be fairly attributed to the
municipality. Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005). To succeed on a claim
for failure to train and/or supervise a police force, a plaintiff must show that
defendants failed to train their officers in a relevant respect, and that the failure to train
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was a deliberate indifference to its citizens’ rights. Palmquist v. Selvik, 111 F.3d 1332,
1343 (7th Cir. 1997). Defendants assert that plaintiff’s allegations are simply recitation of
boilerplate law on pattern or practice liability as described above, which lack the
specificity required by Twombly and Iqbal.
Defendants are correct that recitations of boilerplate law are insufficient to state a
claim for a Section 1983 claim based on pattern or practice liability. See, e.g., Strauss v.
City of Chicago, 760 F.2d 765, 766-67 (7th Cir. 1985). However, plaintiff’s allegations
contain more than boilerplate allegations. Plaintiff asserts that defendants shot and
killed John Edward Brown, II, in this case, but plaintiff also alleges that defendants used
greater force than necessary in other situations, specifically: “Discharging firearms at
domesticated animals secured in their owner’s home” and “Breaking automobile
windows and subduing passengers via Taser for seemingly minor, or no offense(s)
whatsoever.” (DE # 1 at 12.) These allegations avoid the pitfall of basing a policy or
custom claim entirely on one’s own experience. Cf. Grieveson v. Anderson, 538 F.3d 763,
774 (7th Cir. 2008). Further, they place defendants on notice of the basis for plaintiff’s
pattern or practice claim. Fematt v. City of Chicago, No. 11 C 1530, 2012 WL 698814, at *5
(N.D. Ill. Mar. 1, 2012) (complaint containing several examples of defendant’s
knowledge of police misconduct and failure to take action gave defendant fair notice of
claim and grounds upon which it rested). Accordingly, the court denies plaintiff’s
motion to dismiss Count II of the complaint against defendants.
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B.
Rule 12(f) Motion to Strike
In an unusual move, defendants also move to strike, under Federal Rule of Civil
Procedure 12(f), plaintiff’s allegation that defendants employed a “shoot first, ask
questions later” policy as a highly inflammatory accusation designed to garner media
attention. While Rule 12(f) allows a court to strike “from any pleading any insufficient
defense or any redundant, immaterial, impertinent or scandalous matter,” motions to
strike are generally disfavored and are usually only granted in situations in which the
contested material bears no possible relation to the controversy or causes some
prejudice to the moving party. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664
(7th Cir. 1992).
In this case, the use of the phrase “shoot first, ask questions later” is a description
of the particular pattern or practice that plaintiff alleges defendants employed. It bears a
strong relation to the case against defendants, and is clearly material and pertinent, as
the case itself hinges on whether defendants promulgated an improper pattern or
practice. Compare Delta Consulting Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1142
(7th Cir. 2009) (affirming district court’s decision to strike portions of complaint
regarding document that undisputedly never existed), with In re Asbestos Cases, No. 86 C
1739, 1990 WL 36790, at *4 (N.D. Ill. Mar. 8, 1990) (allegations regarding the time and
place of alleged asbestos injury were necessary to establish a cause of action for
negligence and would not be stricken under Rule 12(f)). Accordingly, defendants’
motion to strike is denied.
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III.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss and strike (DE # 7) is
DENIED.
SO ORDERED.
Date: September 30, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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