Moreno-Avalos v. City of Hammond Indiana et al
OPINION AND ORDER The motion for partial dismissal, DE # 55 is GRANTED. The Clerk is ORDERED to DISMISS WITH PREJUDICE any and all official capacity claims made under 42 U.S.C. § 1983 against Defendants McDermott, Koch, Nordhoff, Dabertin, and Taylor. The Clerk is also ORDERED to DISMISS WITHPREJUDICE any and all individual capacity claims made under 42 U.S.C. § 1983 against Defendants McDermott, Taylor, and Dabertin. This case remains pending against defendant, the City of Hammond Indiana. Additionally, Counts IV, V, and VII remain pending against Defendant Nordhoff.. Signed by Judge Rudy Lozano on 1/4/17.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
) CAUSE NO. 2:16-cv-172
CITY OF HAMMOND INDIANA,
OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion for
Order of Partial Dismissal, filed by Defendants, Thomas McDermott,
Tom Dabertin, Kim Nordhoff, Kurt Koch, and Darren Taylor, on
December 2, 2016 (DE #55).
For the reasons set forth below, the
motion for partial dismissal (DE #55) is GRANTED.
The Clerk is
ORDERED to DISMISS WITH PREJUDICE any and all official capacity
claims made under 42 U.S.C. § 1983 against Defendants McDermott,
Koch, Nordhoff, Dabertin, and Taylor. The Clerk is also ORDERED to
DISMISS WITH PREJUDICE any and all individual capacity claims made
under 42 U.S.C. § 1983 against Defendants
McDermott, Taylor, and
Dabertin. This case remains pending against defendant, the City of
Additionally, Counts IV, V, and VII remain
pending against Defendant Nordhoff.
Plaintiff alleges in her second amended complaint that on
November 7, 2011, she made a complaint to Mayor Thomas McDermott
and his assistant, Tom Dabertin, against the City of Hammond
Building Commissioner, Kurt Koch, and a City of Hammond Inspector,
Kim Nordhoff, “seeking to petition a governmental redress of
(DE #53, Count I ¶ 1.)
Moreno-Avalos alleges that
one month later, the City of Hammond retaliated by ordering the
demolition of her building.
(Id. ¶ 2.)
The second amended complaint goes on to allege that on
September 26, 2013, Moreno-Avalos filed a lawsuit in the Northern
District of Indiana.
(Id. ¶ 9.)
On January 30, 2015, the Court
made a ruling on the pleadings in favor of the City of Hammond.
Four months later, the City of Hammond demolished
Plaintiff asserts that the City of
Hammond demolished her property because she made complaints to the
Mayor’s office and filed a lawsuit about alleged unfair treatment
and illegal building citations. (Id.)
Defendants make the instant motion under Federal Rule of Civil
Procedure Rule 12(b)(6), requesting that all of the official
capacity claims under section 1983 be dismissed against Defendants
McDermott, Koch, Nordhoff, Dabertin, and Taylor; and that the
individual capacity claims under section 1983 be dismissed against
Defendants McDermott, Dabertin, and Taylor.
Defendant, City of
Hammond Indiana, does not join this motion to dismiss; thus the
specifically move for dismissal and discuss the section 1983 claims
against the Defendants (which are set forth in Counts I-III of the
second amended complaint), but make no mention or set forth any
argument about the other claims set forth in Counts IV-VII.
such, Counts IV-VII remain pending in this action.
Plaintiff filed a response on December 11, 2016 (DE #59).
Consequently, the current motion is fully briefed and ripe for
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to
be dismissed if it fails to “state a claim upon which relief can be
Fed. R. Civ. P. 12(b)(6).
Allegations other than fraud
and mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a), which requires a “short and
plain statement” that the pleader is entitled to relief. Maddox v.
Love, 655 F.3d 709, 718 (7th Cir. 2011).
In order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face’.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must
be accepted as true, and all reasonable inferences from those facts
must be resolved in the plaintiff’s favor.
521 F.3d 686, 692 (7th Cir. 2008).
Pugh v. Tribune Co.,
However, pleadings consisting
of no more than mere conclusions are not entitled to the assumption
Iqbal, 556 U.S. at 678-79.
This includes legal
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.”
Id. at 678 (citing
Twombly, 550 U.S. at 555).
Official Capacity Claims Against the Individual Defendants
Plaintiff has sued the City of Hammond, Indiana, as well as
officials in their personal capacities or in both their personal
and official capacities, the plaintiff should expressly state so in
Meadows v. State of Indiana, 854 F.2d 1068, 1069
(7th Cir. 1988).
In this case, Plaintiff does not specify in the
caption of the lawsuit whether the individual defendants have been
sued in their individual or official capacities (or both).
plaintiff fails to specify the capacity in which the defendant is
sued, the Court ordinarily construes a section 1983 complaint
against defendants as in their official capacity only.
Umsted, 131 F.3d 697, 706 (7th Cir. 1997); Rangel v. Reynolds, 607
F.Supp.2d 911, 921 (N.D. Ind. 2009).
The court should “also consider the manner in which the
parties have treated the suit” in determining the capacity under
which the defendant is being sued.
Stevens, 131 F.3d at 707
(quoting Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th Cir.
Here, in Count I, Plaintiff alleges that Kurt Koch, “in
his official capacity as Commissioner of Buildings, prohibited the
Plaintiff from petitioning the Mayor to address her grievance
against Building Inspector Kim Nordhoff” and that count states it
is against “Kim Nordhoff, in her official capacity, and Kurt Koch
in his official capacity.”
(DE #53 at 3, 5.)
Count II is labeled
a section 1983 claim against “Kim Nordhoff, in her official
capacity, and Kurt Koch in his official capacity.”
(DE #53 at 6.)
Count III is labeled a section 1983 claim against “Kim Nordhoff, in
her official capacity, and Darren Taylor in his official and
(Id. at 8.) Thus, with the exception of
defendant Taylor (who was specifically named in his individual
capacity in the body of the complaint), when Plaintiff did specify
in the body of the complaint the capacity in which the defendants
were being sued, it was in their official capacity.
Official capacity suits “generally represent only another way
of pleading an action against an entity of which an officer is an
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting
Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690
If a plaintiff brings suit against a government
entity, any claim against an officer of that entity in his or her
official capacity is redundant and should be dismissed.
Housing Auth. of City of Gary, Ind., 615 F.Supp.2d 785, 789-90
(N.D. Ind. 2009); see also Graham, 473 U.S. at 165-66; Schmidling
v. City of Chicago, 1 F.3d 494, 495 n.1 (7th Cir. 1993)(dismissing
the mayor from suit in his official capacity because the same
claims were being made against the city); Bratton v. Town of
Fortville, No. 1:09-cv-1391, 2010 WL 2291853, at *4 (S.D. Ind. June
2, 2010) (dismissing official-capacity claims against members of
town council as duplicative of the claims against the town); Doffin
v. Ballas, No. 2:12-CV-441-JD-PRC, 2013 WL 3777231, at *8-9 (N.D.
Ind. July 18, 2013) (dismissing officers sued in their official
capacity because it was duplicative of the claims against the
city); Ball v. City of Muncie, 28 F.Supp.3d 797, 802 (S.D. Ind.
2014) (finding because the city was “the real party in interest
here, the official-capacity claims against [defendant] shall be
dismissed as duplicative of the claims against the City.”).
dismissal of “the counts against the Defendants in their official
capacity for failure to state a claim is [a dismissal of] the
counts against the government entity.”
(DE #59 at 2.)
in Ball simply dismissed the official capacity claims against an
individual defendant, the plaintiff still had claims against the
City of Muncie. Ball, 28 F.Supp.3d at 802-03.
Also, her argument
that her official capacity claims against the individual defendants
are not duplicate causes of action misses the point.
All of the
above-quoted caselaw deals with plaintiffs suing municipalities in
addition to government employees, and the courts ruled that the
individuals sued in their official capacity should be dismissed as
The same is proper here, the section 1983 claims
against the individual defendants sued in their official capacity
should be dismissed as duplicative of the claims against the City
To the Extent Defendants McDermott, Dabertin, and Taylor Have
Been Sued in their Individual Capacities
To establish personal liability under section 1983, Plaintiff
must show that the defendant in question “caused the deprivation of
a federal right.”
Luck v. Rovenstine, 168 F.3d 323, 327 (7th Cir.
1999) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Here, Taylor
was sued in his individual capacity, and Defendants believe there
are other allegations in the complaint that try to state individual
capacity claims against McDermott and Dabertin too.
Plaintiff has failed to allege facts sufficient to plausibly
show that McDermott, Dabertin, or Taylor directly participated in
a violation of her constitutional rights. See Leathem v. City of
LaPorte, No. 3:07-cv-220, 2009 WL 523121, at *6 (N.D. Ind. Feb. 27,
2009) (under section 1983, a “plaintiff must demonstrate that the
defendant participated directly in the alleged constitutional
In this case, Plaintiff has merely alleged that she
complained of inspector Nordhoff to Mayor McDermott and Dabertin;
and that Taylor offered to fix her roof for $5,000.
There are no
allegations that these defendants caused a constitutional injury to
her, much less that they directly participated in causing harm to
In her response, Moreno-Avalos cites Duckworth v. Franzen, 780
F.2d 645, 650 (7th Cir. 1985), for the proposition that “if a
supervisor personally devised a deliberately indifferent policy
that caused a constitutional injury, then individual liability
might flow from that act.”
(DE #59 at 2.)
However, there are no
allegations in the second amended complaint that anyone personally
devised a policy to deprive Plaintiff of her constitutional rights.
Nor are there even any facts alleged that Dabertin, Koch, or Taylor
would even have any “final authority” to make such a policy.
Consequently, the facts alleged against defendants McDermott,
Dabertin, and Taylor are insufficient to state a cognizable claim.
Consequently, any individual claims against defendants McDermott,
Dabertin, and Taylor are dismissed with prejudice.
For the reasons set forth above, the motion for partial
dismissal (DE #55) is GRANTED.
The Clerk is ORDERED to DISMISS
WITH PREJUDICE any and all official capacity claims made under 42
Dabertin, and Taylor.
The Clerk is also ORDERED to DISMISS WITH
PREJUDICE any and all individual capacity claims made under 42
U.S.C. § 1983 against Defendants
McDermott, Taylor, and Dabertin.
This case remains pending against defendant, the City of Hammond
Additionally, Counts IV, V, and VII remain pending
against Defendant Nordhoff.
DATED: January 4, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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