Tutlewski et al v. Palleson et al

Filing 14

OPINION AND ORDER GRANTING 7 Motion to Dismiss for Failure to State a Claim; GRANTS plaintiff until 1/18/19 to move for leave to file an amended complaint. If no such motion is filed by that deadline, this casewill be dismissed without further notice for failure to state a claim. Signed by Senior Judge James T Moody on 12/19/18. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WILLIAM TUTLEWSKI and
SHARON TUTLEWSKI,
Plaintiffs,
v.
ERIK PALLESON and LARRY
POWELL,
Defendants.

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No. 2:18 CV 194

OPINION and ORDER
Plaintiffs William and Sharon Tutlewski (“plaintiffs”) bring multiple claims
against Officers Erik Palleson and Larry Powell of the Chesterton Police Department
(“defendants”). (DE # 1 at 1–3.) The matter is now before the court on defendants’
motion to dismiss. (DE # 7.) For the reasons set forth below, the motion will be granted.
I.

BACKGROUND
On May 21, 2016, plaintiffs were driving northbound on South Calumet Road

when they were pulled over by Officer Palleson for alleged moving violations. (DE # 1
at 3.) Officer Powell was a back-up officer for this traffic stop. (Id.) According to
plaintiffs, defendants “used unreasonable, unnecessary, and excessive force in [their]
interactions with [defendants].” (Id.) Plaintiffs also state that a third officer was present
at the location of the traffic stop, although this officer did nothing to prevent the alleged
“violence.” (Id. at 4.) As a result of the confrontation, William Tutlewski claims he

suffered injuries including a rotator cuff tear. (Id.) Sharon Tutlewski claims she suffered
injuries including “orthopedic injuries.” (Id.)
Based on this incident, plaintiffs filed a complaint in this court on May 17, 2018.
(DE # 1.) The complaint contains four claims (two against each defendant) for excessive
force in violation of the Fourth Amendment, pursuant to 42 U.S.C. § 1983. (Id. at 4–9.)
On July 9, 2018, defendants filed a motion to dismiss all claims against them
pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE # 7.) Plaintiffs responded to
the motion (DE # 10), and defendants filed a reply brief (DE # 13). The motion is now
fully briefed and ripe for ruling.
II.

LEGAL STANDARD
Defendants have moved to dismiss plaintiffs’ claims under Federal Rule of Civil

Procedure 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 noticepleading 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)).

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“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
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).
III.

DISCUSSION
A.

Motion to Dismiss

Defendants move to dismiss all claims in the complaint on the grounds that
plaintiffs have not properly stated a claim for excessive force under the Fourth
Amendment. (DE # 8 at 3.) The Fourth Amendment guarantees people the right “to be
secure in their person . . . against unreasonable searches and seizures.” An officer’s use
of force may or may not violate the Fourth Amendment. “[T]he question is whether the
officer[‘s] actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989); see also Fitzgerald v.
Santoro, 707 F.3d 725 (7th Cir. 2013) (“The appropriate question in such a case is whether

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the officers’ actions are objectively reasonable in light of the totality of the
circumstances.”).
In the case at hand, defendants argue that the complaint lacks sufficient facts
pertaining to the alleged instances of excessive force. Beyond the general allegations
that this incident occurred at a traffic stop and that plaintiffs were injured, the
complaint does not contain any contextual facts or circumstances which would allow
the court to begin to assess the officers’ objective reasonableness. (See DE # 1.)
Specifically, plaintiffs do not describe the actual actions taken by each officer with
respect to each plaintiff. Did the officers grab plaintiffs? Push plaintiffs? Did they use a
weapon of any kind? Plaintiffs have provided no allegations to answer these questions,
and there are no allegations whatsoever regarding the type or degree of force involved.
Instead, each of plaintiffs’ four claims contains only a set of boilerplate
allegations. (See DE # 1 at 4–10.) Moreover, all four claims are identical aside from the
names of the parties. (Id.) For instance, in Count I, plaintiffs allege the following:
Officer Palleson . . . [was] guilty of one or more of the
following acts and/or omissions: (a) Unreasonably,
unnecessarily, and excessively used force against the plaintiff,
William Tutlewski . . . ; and/or (b) Unreasonably and
unnecessarily failed to restrain his actions when he knew or
should have known that the use of force would cause
substantial injury to the plaintiff, William Tutlewski; and/or
(c) Acted with deliberate indifference to the constitutional
rights of William Tutlewski; and/or (d) Was otherwise in
violation of William Tutlewski’s civil rights.
(Id. at 5.) Plaintiffs also allege that each defendant “acted willfully, deliberately,
maliciously, or with reckless disregard” for plaintiffs’ rights. (Id. at 5, 7, 8, 10.)
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Although the court must accept plaintiffs’ factual allegations as true for the
purposes of this motion to dismiss, the court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The allegations that plaintiffs have put forth in this case are merely restatements of the
legal standards for Fourth Amendment claims, couched as facts. “This sort of
conclusory legal fluff isn’t entitled to a presumption of truth even at the pleading
stage.” Foster v. Land, No. 2:16-CV-45-RLM-PRC, 2016 WL 3971699, at *4 (N.D. Ind. July
25, 2016) (granting a motion to dismiss an excessive force claim which was based on the
sole allegation that an officer “exerted excessive force on Plaintiff’s person”).
Accordingly, plaintiffs have not supported their Fourth Amendment claims with
proper factual allegations. Therefore, plaintiffs have failed to state a claim in their
complaint and dismissal of the complaint is appropriate.
B.

Leave to Amend

At the end of their response brief, plaintiffs request that, in the alternative, they
should be given leave to file an amended complaint. (DE # 10 at 6.) Plaintiffs have not
yet filed an amended complaint in this case. According to Rule 15(a)(1)(B), “[a] party
may amend its pleading once as a matter of course within . . . 21 days after service of a
motion under Rule 12(b).” Defendants’ motion to dismiss was filed on July 9, 2018 (DE
# 7), and plaintiffs did not amend their pleading within 21 days of that date. Plaintiffs’
response brief was filed 22 days later, on July 31, 2018, but even that brief contains only
a request for leave without any proposed amendments to the complaint. (See DE # 10.)

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Nevertheless, a party may amend its pleading after 21 days if given leave by the
court. Fed. R. Civ. P. 15(a)(3). “The court should freely give leave when justice so
requires.” Id. However, “the district court need not allow an amendment when there is
undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or
when the amendment would be futile.” Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d
854, 860–61 (7th Cir. 2001). Because plaintiffs have not yet provided a proposed
amended complaint, the court cannot determine whether the amendment would be
futile or otherwise improper. Therefore, the court will grant plaintiffs 30 days to file a
motion seeking leave to amend the complaint.
IV.

CONCLUSION
For the foregoing reasons, the court GRANTS defendants’ motion to dismiss

(DE # 7). Additionally, the court GRANTS plaintiff until January 18, 2019, to move for
leave to file an amended complaint. If no such motion is filed by that deadline, this case
will be dismissed without further notice for failure to state a claim.
SO ORDERED.
Date: December 19, 2018
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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