Walton v. Merrillville Police Department et al
OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the 17 Motion to Dismiss is GRANTED. Plaintiff's federal claims in Count I are DISMISSED WITH PREJUDICE, and her state claims in Counts II-V are REMANDED back to the Lake Circuit Court for further proceedings. Signed by Judge Rudy Lozano on 11/28/2017. (cert copy of order and docket sheet sent to Lake County Circuit Court) (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
ALMA JEAN WALTON,
DEPARTMENT and JOSEPH
PETRUCH in his official
capacity as Chief of
Cause No. 2:17-CV-271
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss,
filed by Defendant, Merrillville Police Department and Chief Joseph
Petruch, on August 24, 2017 (DE #17).
For the reasons set forth
below, the motion (DE #17) is GRANTED.
Plaintiff’s federal claims
(in Count I) are DISMISSED WITH PREJUDICE, and her state claims
(Counts II-V) are REMANDED back to the Lake Circuit Court for
Plaintiff, Alma Jean Walton, alleges that she was raped the night
of November 10, 2014, and that the Merrillville Police Department
and Joseph Petruch, in his official capacity as Chief of Police,
failed to properly investigate her case. In her amended complaint,
she states a claim pursuant to 42 U.S.C. § 1983 for violation of
her constitutional rights to due process and equal protection
(Count I), as well as state constitutional violations (Count II),
negligence (Count III), “privacy” (Count IV), and defamation (Count
Defendants move to dismiss all claims pursuant to Federal Rule
of Civil Procedure 12(b)(6).
Plaintiff filed a response on
September 15, 2017 (DE #24), and Defendants filed a reply on
September 22, 2017 (DE #25).
Consequently, this motion is fully
briefed and ripe for adjudication.
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).
Plaintiff is a 59-year old African American female, who
alleges she was forcibly raped in her home in Merrillville,
Indiana, the night of November 10, 2014. (Am. Compl. ¶¶ 5-6.) She
alleges the attack occurred while she was sleeping, and she was
“unable to move and felt powerless in stopping her attacker.” (Id.
According to Plaintiff, when she woke the next morning, she
bruising, and in extreme pain in her breasts.
went to South Suburban Hospital in Country Club Hills, Illinois,
and had an exam and rape kit performed.
That same morning, Plaintiff called the Merrillville Police
Department and reported that she had been raped and attacked, and
although she was told officers would be there within 2-3 days, she
alleges the police officers did not come to her home to make a
(Id. ¶ 11.)
On approximately November 24, 2014, Plaintiff again called the
Merrillville Police Department to follow up, but she alleges they
still had not investigated the allegations. (Id. ¶ 12.)
claims she continued to live in fear that the attacker would
(Id. ¶ 15.)
On December 5, 2014, Plaintiff called the
Police Department “to report that she believed one of the other
tenants on the property was her attacker and asked that they
investigate her allegations and that they test the rape kit.” (Id.
Not until after Plaintiff went to the Merrillville Police
Department’s station to ask about the status of the investigation
on December 9, 2014, did an officer get dispatched to her residence
to investigate the incident that same day.
(Id. ¶ 17.)
police report is attached to the amended complaint, and indicates
that Plaintiff believes the same person “had been entering her
apartment while the security system is armed and disturbing things
in her apartment. . . [she] also reported that she believes that
same individual followed her to the Best Western Hotel in Oak
Forest IL and broke off the sun visor inside her vehicle.”
Officer found “[t]here was no forced entry to Walton’s home of
(DE #7 Ex. A.)
In January 2015, Plaintiff was advised by the South Suburban
Hospital that the Police Department was in possession of the rape
kit gathered in October 2014, but it would take six months to
(Am. Compl. ¶¶ 18-19.)
She sent a letter to the Police Department on September 7,
2015, inquiring about the rape kit.
(Id. ¶ 20.)
On September 24,
2015, Joseph Petruch, Chief of Police, sent a letter in return
(attached to the amended complaint as Exhibit C), stating:
Upon receiving the incident report it was processed
by the Department through standard daily operating
procedure. The Commander of Detective’s reviewed
the written report and assigned it to Detective
training concerning this incident.
investigation, with review of original claims and
the Sane’s report from Advocate South Suburban
Hospital, it was confirmed there showed no signed
or evidence to substantiate the claim.
The investigation by Detective Fields continued
with him contacting your daughter, and advising her
of the hospital’s concerns for your mental health.
With the investigation complete and your daughter
advised, he closed his report investigation.
This would conclude any further investigation
with Detective Field’s recommendation of no
evidentiary evidence of a crime.
(DE #7 Ex. C.)
Plaintiff alleges that to date, she has never been given the
results of her rape kit test or provided with any documentation to
substantiate whether it was processed.
believes it was never processed.
(Am. Compl. ¶ 24.)
(Id. ¶ 25.)
First, the Court must cover which documents are proper to
consider in ruling on this motion to dismiss.
For purposes of a
Rule 12(b)(6) motion, the pleadings include the complaint, the
answer, and any written instruments attached to the complaint as
Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th
Thus, all of the exhibits attached to the amended
complaint (including the Merrillville Police Department incident
report (Ex. A), and the letter dated September 24, 2015 from the
Chief of Police (Ex. C)), may be considered by this Court.
Defendants’ motion to dismiss, which is an affidavit by Joseph
Petruch, Chief of Police.
“Documents referred to in,
but not attached to, a plaintiff’s complaint that are central to
its claim may be considered in ruling on a Rule 12(b)(6) motion if
they are attached to the defendant’s motion to dismiss.”
Steel Inc. v. M/V Kalisti, 121 F.3d 321, 324 n.3 (7th Cir. 1997);
see also Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d
429,431-32 (7th Cir. 1993).
In this case, the affidavit is not
attached or referred to in the complaint.
No party requested that
this Court convert this to a motion for summary judgment; and this
Court does not intend to do so.
As such, this Court excludes from
consideration Petruch’s affidavit.
Merrillville Police Department and Joseph Petruch, under 42 U.S.C.
§ 1983, for violation of Plaintiff’s constitutional rights pursuant
to the due process clause and equal protection clause (Count I).1
The wording of the complaint is important, and thus is included, in
At all times relevant herein, Defendants acted
under the color of authority of the State.
Merrillville Police Department had policies
and procedures set in place in accordance with
the Lake County Indiana Police Department and
the Lake County Sexual Assault Response Team.
[Exhibit E]. Said document has been signed by
every police department in Lake County;
including, but not limited to, Defendant,
Chief of Police, Joseph Petruch.
Defendants knew that Plaintiff had a rape kit
gathered as evidence of sexual assault, and
Defendants did not take steps to properly
investigate the allegation of forcible rape
that Plaintiff reported.
diligently the allegations and to submit the
rape kit for testing and processing.
At all times, Defendants acted with deliberate
indifference, intentionally, willfully and
wantonly, and/or with reckless disregard
A municipality’s police department is “not a ‘person’ under Section
1983" and may not be sued as such. Sanders v. Town of Porter Police Dep’t,
No. 2:05-CV-377, 2006 WL 2457251, at *3 (N.D. Ind. Aug. 22, 2006). However,
by bringing section 1983 claims against Chief Petruch in his official
capacity, Plaintiff has brought suit against the proper defendant, the Town of
Merrillville. Yeksigian v. Nappi, 900 F.2d 101, 103-04 (7th Cir. 1990) (“A
suit against a municipal officer in his official capacity is construed as a
suit against the municipality.”).
deprived Plaintiff of rights and/or privileges
secured by the constitution, including, but
not limited to:
(a) Defendants violated Plaintiff’s Due
Process Clause property interests in her DNA
samples, which had been allegedly stored at
the Merrillville Police Department’s facility,
and her right to redress in the courts, by
failing to investigate and by failing to
submit the rape kit for testing and processing.
Defendants have a widespread policy, practice,
or custom of how to process a report of rape,
although not authorized by written law or
express statute, the policy is well settled to
constitute a custom or usage with the force of
Defendants intentionally treated Plaintiff
differently based solely on her race and
Had the report of assault been made by a
Caucasian woman or a male, the allegations
would have no doubt been investigated in an
efficient and timely manner.
Defendants conduct violates the due process
and equal protection clause under 42 USCS §
(Am. Compl. ¶¶ 27-35.)
Denial of Access to Courts
Defendants argue that Plaintiff has failed to state a claim
for violation of Constitutional rights under the due process
clause, because she has not stated a claim for a constitutional
More specifically, they contend there is no due
process right to a proper police investigation, and that Plaintiff
does not allege a sufficient claim for judicial redress.
Plaintiff alleges “she believed one of the other tenants on the
property was her attacker,” (Am. Compl. ¶ 16) she argues that she
could not “sue the man that raped her because she does not have
that information which is identified in her rape kit.”
(DE #24 at
“A plaintiff may bring a valid claim for relief under § 1983
if he can show that someone acting under color of state law
deprived him of a right protected by the Constitution.”
v. City of Berwyn, No. 14 C 6750, 2015 WL 4498742, at *2 (N.D. Ill.
Fourteenth Amendment safeguard a person’s right to seek legal
redress for claims that have a reasonable basis in law and fact.
See Christopher v. Harbury, 536 U.S. 403, 414-15 (2002).
a state actor interferes with an individual’s right of court
access, it can potentially be actionable as a deprivation of
constitutional rights under section 1983.
Buchmeier, 2015 WL
4498642, at *2 (citing Bounds v. Smith, 430 U.S. 817, 822 (1977)).
effective, and meaningful.”
Rossi v. City of Chicago, 790 F.3d
729, 734 (7th Cir. 2015) (quoting Bounds, 430 U.S. at 822).
Moreover, the Seventh Circuit has held that “when police officers
conceal or obscure important facts about a crime from its victims
rendering hollow the right to seek redress, constitutional rights
are undoubtedly abridged.”
Vasquez v. Hernandez, 60 F.3d 325, 328
(7th Cir. 1995); see also May v. Sheahan, 226 F.3d 876, 883 (7th
Cir. 2000) (“[t]o prove a violation of this right, a plaintiff must
demonstrate that state action hindered his or her efforts to pursue
a nonfrivolous legal claim and that consequently the plaintiff
plaintiffs do not have a right to compel the government to file
criminal charges against other individuals, Diamond v. Charles, 476
U.S. 54, 64-65 (1986), the only right on which Plaintiff’s denial
of access claim could be based is her right to pursue a civil
See Buchmeier, 2015 WL 4498742, at *3.
On the other hand, the Seventh Circuit also has very clearly
stated that a plaintiff “does not have a constitutional right to
have the police investigate his case at all, still less to do so to
his level of satisfaction.”
Rossi, 790 F.3d at 735. Indeed, “mere
inactivity by police does not give rise to a constitutional claim.”
In this case, Plaintiff may state a claim for denial of access
to the courts with respect to a potential civil case against the
alleged rapist only if the failure of the Merrillville Police
Department to adequately investigate the crime “limited [her]
constituted a denial of judicial access.”
Defendants claim that Plaintiff has not made any allegations
misbehavior, such as a coverup.
Indeed, a close read of the
complaint shows that Plaintiff alleges the Police Department “did
not take steps to properly investigate the allegation of forcible
allegations and to submit the rape kit for testing” and they
“fail[ed] to investigate and . ... submit the rape kit for testing
(Am. Compl. at 5.)
This case is different than Bell v. City of Milwaukee, 746
F.2d 1205 (7th Cir. 1984)(overruled on other grounds), finding
there was a constitutional deprivation where there were allegations
that the police department concealed and intentionally obscured
As noted in Bell, that situation is “distinguishable from
those where a plaintiff simply alleges that law officers were lax
in their investigatory duties.”
Id. at 1261-62.
only alleges that the police department failed to properly conduct
an investigation and failed to have the rape kit processed.
inactivity, which is the only allegation in the amended complaint,
is not enough.
See Rossi, 2015 WL 3827324, at *4.
Plaintiff does assert in her response memorandum, for the
first time, that “[t]he officers covered something up, either a
This can be reasonably inferred from the length of time
miscommunication given to Ms. Walton about the investigation and
processing of her rape kit.”
(DE #24 at 2.)
However, “[i]t is a
basic principle that the complaint may not be amended by the briefs
in opposition to a motion to dismiss.”
Thomason v. Nachtrieb, 888
F.2d 1202, 1205 (7th Cir. 1989) (citing Car Carrier, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)).
Plaintiff has failed to articulate any facts in support of her
theory that the officers covered something up, and the length of
time of the investigation does not necessarily lend credence to a
This speculation is insufficient.
Additionally, the Supreme Court of the United States has
“flatly rejected the notion there is a freestanding substantive due
process right to access DNA evidence.” McDowell v. Alvarez, No. 09
C 8033, 2012 WL 3481642, at *9 (N.D. Ill. Aug. 15, 2012) (citing
District Attorney’s Office v. Osborne, 557 U.S. 52, 72 (2009)).
While such an interest has been recognized where prisoners sought
to have forensic evidence tested in order to exonerate themselves
and be released from prison, see Osborne, 557 U.S. at 72, no court
has recognized a liberty or property interest in testing a rape kit
to prove an unknown party’s guilt. The Supreme Court has held that
there is no due process right to police investigation, criminal
prosecution, or government aid, even “where such aid may be
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196
For all of these reasons, Plaintiff has failed to state a
claim for violation of her constitutional rights, and Defendants
are entitled to dismissal of Plaintiff’s federal constitutional
claims under 42 U.S.C. § 1983.
Plaintiff also alleges that Defendants violated her right to
equal protection because she was treated differently “based solely
on her race and gender” and “[h]ad the report of assault been made
by a Caucasian woman or a male, the allegations would have no doubt
been investigated in an efficient and timely manner.” (Am. Compl.
¶¶ 33-34.) Defendants move to dismiss this claim, arguing that the
amended complaint fails to set forth any factual allegations that
Caucasian or male rape victims were investigated differently.
#25 at 8.) Indeed, Twombly has established that plaintiffs must
“state a claim to relief that is plausible on its face” and that
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”
Twombly, 550 U.S. at 570, 555.
in response, Plaintiff points to Brown v. Budz, where the Seventh
Circuit reversed dismissal, noting the liberal requirements of
notice pleading under Rule 8.
(7th Cir. 2005).
Brown v. Budz, 398 F.3d 904, 916
Even assuming Plaintiff’s allegations have
sufficiently put Defendants on notice of her equal protection
claim, the amended complaint still fails to state a claim.
“Local governments and their officials may be held responsible
under § 1983 only if the injury was caused by an official law,
custom, or policy.”
Heck v. Dearborn Cty. Jail, 972 F.2d 351 n. 1
(7th Cir. 1992) (citing Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)). In order to demonstrate that a
municipal policy has violated her civil rights under section 1983,
Plaintiff must allege that:
(1) the [municipality] had an express policy that,
when enforced, causes a constitutional deprivation;
(2) the [municipality] had a widespread practice
that, although not authorized by written law or
express municipal policy, is so permanent and well
settled as to constitute a custom or usage within
the force of law; or (3) plaintiff's constitutional
injury was caused by a person with final
McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000)
Further, a municipality may only be liable under section 1983
if it is the "moving force behind the injury."
Bd. of County
Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 405
“The critical question under Monell . . . is whether a
municipal (or corporate) policy or custom gave rise to the harm
(that is, caused it), or if instead the harm resulted from the acts
of the entity’s agents.”
Glisson v. Indiana Dep’t of Corr., 849
F.3d 372, 379 (7th Cir. 2017).
In other words, to prevail on her
constitutional rights were violated and that the Department’s
policy or custom of failing to investigate certain alleged rapes
caused the constitutional violation.
Collins v. City of Harker
Heights, Texas, 503 U.S. 115, 123 (1992).
While it is true that there is no heightened pleading standard
for municipal liability under Section 1983, a complaint must still
satisfy the plausibility standard set forth in Twombly and Iqbal.
insufficient to state a Monell claim.
See Strauss v. City of
Chicago, 760 F.2d 765, 767-70 (7th Cir. 1985).
To state a
successful claim under Monell, a plaintiff must “plead factual
content that allows the court to draw the reasonable inference that
the [municipality] maintained a policy, custom, or practice that
was the moving force behind the constitutional violations.” Dixon
v. Buncich, No. 2:15-CV-458 JD, 2016 WL 2643454, at *3 (quoting
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)).
Mere legal conclusions will not suffice to survive a motion to
Id.; see also S.J. v. Perspectives Charter Sch., 685 F.
Supp. 2d 847, 857-58 (N.D. Ill. 2010). Further, one incident of an
municipal custom or policy, “the plaintiff must allege a specific
Hossman v. Blunk, 784 F.2d 793, 796-97 (7th Cir.
Department “had policies set in place in accordance with the Lake
County Indiana Police Department and the Lake County Sexual Assault
Response Team” and that they have a “widespread policy, practice,
or custom of how to process a report of rape.”
unconstitutional, or that the policy gave rise to her injury.
(Am. Compl. ¶¶ 28,
municipality would be automatically subject to liability merely for
enacting policies and procedures, regardless of whether they were
Here, Plaintiff has failed to allege, much less
point to any factual content, that the Department had a widespread
custom or policy of failing to investigate alleged rapes of women
or African Americans, which resulted in her injury.
Plaintiff confusingly argues that “[t]he complaint pleads that
the Defendant Police department disregarded its own guidelines and
policy, practice, and custom that causes its police officers,
including the Chief, to slight the crimes reported by older, female
or African American victims.”
(DE #24 at 6.)
To the extent
Plaintiff is arguing Defendants should be held liable because they
failed to follow their own guidelines on rape investigation, “[a]
local government’s failure to follow its own procedural rules,
however, does not violate due process.”
Kvapil v. Chippewa Cnty.,
Wisconsin, 752 F.3d 708, 715 (7th Cir. 2014) (citing Scott v.
Village of Kewaskum, 786 F.2d 338, 342 (7th Cir. 1986)).
Plaintiff is trying to allege that Defendants had a custom or
policy that caused harm, she has failed - she has not pled any
factual content allowing the inference that a department policy
violated her rights, or that there were other instances where the
custom or policy violated another’s rights.
See Strauss, 760 F.2d
at 767 (“Proximate causation between the municipality’s policy or
custom and the plaintiff’s injury must be present”); see also
Estate of Perry v. Wenzel, Nos. 16-2353 and 16-3130, 2017 WL
4112409, at *15 (7th Cir. Jan. 5, 2017); Cano v. Vasquez, No. 2:16cv-401, 2016 WL 7475658 (N.D. Ind. Dec. 29, 2016) (dismissing
Monell claim where plaintiff only provided boilerplate allegations
of a single incident).
Finally, as set forth earlier in this
opinion, the section 1983 claims further fail because Plaintiff has
not set forth a constitutional injury. As such, Plaintiff has
failed to set forth a claim for violation of her due process or
equal protection rights.
State Law Claims
Plaintiff has also alleged state law claims for violation of
the state Constitution (Count II), negligence (Count III), privacy
(Count IV), and defamation (Count V).
The Court has granted
dismissal in favor of Defendants on all of Plaintiff’s federal
claims, which were the sole basis for federal jurisdiction in this
action as the parties are not diverse.
(Am. Compl. at 1.)
Therefore, the Court must decide whether to exercise supplemental
jurisdiction over Plaintiff’s remaining state law claims.
Upon due consideration, the state law claims are dismissed
without prejudice because the federal claims have been dismissed
prior to trial.
28 U.S.C. § 1367(c)(3); Groce v. Eli Lilly & Co.,
193 F.3d 496, 501 (7th Cir. 1999) (“[I]t is the well-established
law of this circuit that the usual practice is to dismiss without
prejudice state supplemental claims whenever all federal claims
have been dismissed prior to trial.”); see also Williams v. Fort
Wayne Police Dep’t Officers John/Jane Does, No. 1:12-CV-202, 2012
WL 6727534, at *3 (N.D. Ind. Dec. 27, 2012).
For the reasons set forth above, the motion to dismiss (DE
#17) is GRANTED.
Plaintiff’s federal claims (in Count I) are
DISMISSED WITH PREJUDICE, and her state claims (Counts II-V) are
REMANDED back to the Lake Circuit Court for further proceedings.
DATED: November 28, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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