Twomey v. Land et al

Filing 28

OPINION AND ORDER: The Court GRANTS in part and DENIES in part 13 Defendants' Partial Motion to Dismiss. The Court DISMISSES without prejudice Counts I and II against Defendant Chief Pete Land in his official capacity, DISMISSES without preju dice the Fourteenth Amendment procedural due process claims brought in Counts I and II as to all Defendants, and DISMISSES with prejudice the respondeat superior claim in Count IV against Defendant Chief Pete Land in his official capacity and the cla ims in Counts IV, V, and VI against the Officers within scope of employment. The following claims REMAIN PENDING: (1) Counts I and II of the § 1983 Fourth Amendment claims of excessive force, false arrest, and unlawful detention and confinement against Defendant Officer Ballas, Burkholder, and Poling; (2) Count III, which is the Monell claim for failure to train against Defendant Chief Pete Land in his official capacity; and (3) Counts IV, V, and VI against Defendant Officers Ballas, Burkholder, and Poling on the alternative allegation that they were acting outside the scope of employment and, thus, can be sued personally under Indiana Code § 34-13-3-5(c). Signed by Judge Theresa L Springmann on 10/13/2020. (jat)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DOUGLAS ALAN TWOMEY,
Plaintiff,
v.

CAUSE NO.: 2:19-CV-225-TLS-JPK

CHIEF PETE LAND, in his official capacity,
OFFICER R. BALLAS, individually,
OFFICER J. BURKHOLDER, individually,
and OFFICER J. POLING, individually,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants’ Partial Motion to Dismiss [ECF No. 13],
which is fully briefed and ripe for ruling. For the reasons set forth below, the Court grants in part
and denies in part the motion.
BACKGROUND
Plaintiff Douglas Alan Twomey filed a six-count Complaint [ECF No. 1] against
Defendants Crown Point police officers R. Ballas, J. Burkholder, and J. Poling (collectively “the
Officers”) in their individual capacities and Defendant Chief Pete Land in his official capacity as
Chief of Police of the Crown Point Police Department. The following factual allegations are
taken from the Complaint. On June 22, 2017, Plaintiff was at his residence located in Crown
Point, Indiana. Compl. ¶ 9, ECF No. 1. Around 5:45 p.m., the Officers arrived at Plaintiff’s
residence to investigate a possible hit and run motor vehicle accident. Id. ¶ 10. The vehicle that
was involved in the hit and run earlier that day was not at Plaintiff’s residence. Id. ¶ 11. The
Officers, while at Plaintiff’s residence, assaulted Plaintiff, causing him physical injury, and then
arrested him for disorderly conduct under Cause Number 45H01-1706-CM-223. Id. ¶ 12. In their

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attempt to arrest Plaintiff, the Officers grabbed Plaintiff’s son out of his arms, kicked Plaintiff in
his knee three times in an attempt to wrestle his body to the ground, and twisted Plaintiff’s back
and right arm. Id. ¶¶ 16.d, 38. In the attempt to arrest Plaintiff, the Officers grabbed, twisted,
exerted excessive pressure on, and otherwise manhandled Plaintiff’s person and/or his body,
causing him injury. Id. ¶¶ 16.e, 38. They also used improper force to push Plaintiff into a police
car. Id. ¶ 38. Plaintiff sustained severe emotional distress as a result of these events. Id. ¶ 47. The
disorderly conduct charges filed against Plaintiff were dismissed on January 7, 2019. Id. ¶ 13.
Count I, titled “Violations of 42 U.S.C. § 1983: False Arrest; Excessive Force,” alleges
that Plaintiff was arrested without probable cause, id. ¶ 16.c, the Officers used excessive force in
carrying out the arrest, id. ¶ 18, Plaintiff was deprived of his liberty without due process of law
as a result, id. ¶¶ 16.a, 18, Chief Land has a policy or custom of authorizing, approving, and/or
turning a blind eye to false arrests and excessive force by employees, id. ¶ 19, and, in the
alternative, the Officers false arrest was a result of their blatant disregard of Plaintiff’s
constitutional rights, id. ¶ 20. Count II, titled “Violations of 42 U.S.C. § 1983: Detention and
Confinement,” alleges that Plaintiff was unlawfully detained by the Officers based on the false
arrest, id. ¶¶ 22–24, Plaintiff was deprived of his liberty without due process of law based on the
unlawful detention, id. ¶ 26, and Chief Land has a policy or custom of detaining individuals in
jail without probable cause, id. ¶¶ 25–27. Count III brings a failure to train claim pursuant to
§ 1983, alleging that Chief Land failed to instruct, supervise, control, and/or discipline the
Officers in their duty to refrain from arresting individuals without probable cause and using
excessive force. Id. p. 7.
Counts IV, V, and VI are Indiana state law claims against the Officers individually for
battery, intentional infliction of emotional distress, and negligence, respectively. Id. pp. 8–12.
The Complaint alleges that the Officers were acting “in furtherance of their employment,” id.
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¶ 40, and, in the alternative, that their actions were “not done in furtherance of their
employment,” id. ¶ 41. Count IV also asserts the battery claim against Chief Land in his official
capacity based on the theory of respondeat superior. Id. ¶ 40.
LEGAL STANDARD
A motion to dismiss brought under Rule 12(b)(6) “challenges the viability of a complaint
by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A.
Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). The court presumes that all well-pleaded
allegations are true, views these well-pleaded allegations in the light most favorable to the
plaintiff, and draws all reasonable inferences in favor of the plaintiff. Reynolds v. CB Sports Bar,
Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). Surviving a Rule 12(b)(6) motion “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough
to raise a right to relief above the speculative level . . . .” Id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
ANALYSIS
In the instant motion, Defendants seek dismissal of the official capacity claims against
Chief Land in Counts I, II, and III, dismissal of the Fourteenth Amendment due process claim in
Counts I and II as to all Defendants, and dismissal of the state law claims in Counts IV, V, and
VI as to all Defendants. The Court considers the arguments in turn.
A.

Official Capacity Claims Against Chief Land
In Counts I, II, and III, Plaintiff brings claims against Chief Land in his official capacity

pursuant to 42 U.S.C. § 1983 for the alleged violations of Plaintiff’s constitutional rights by the
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Officers. To state a claim under § 1983, “a plaintiff must allege: (1) that defendants deprived him
of a federal constitutional right; and (2) that the defendants acted under color of state law.”
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). A claim against an individual in his official
capacity is “to be treated as a suit against the entity” in all but name. Kentucky v. Graham, 473
U.S. 159, 166 (1985); see also Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011).
Thus, the claims against Chief Land in his official capacity are really claims against the City of
Crown Point.
A municipality can only be held liable under § 1983 “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 694 (1978). To state a claim of municipality liability under § 1983, a
plaintiff must plead factual content that allows the court to draw the reasonable inference that
“the unconstitutional act complained of is caused by: (1) an official policy adopted and
promulgated by its officers; (2) a governmental practice or custom that, although not officially
authorized, is widespread and well settled; or (3) an official with final policy-making authority.”
Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing Monell, 436 U.S.
at 690; Valentino v. Village of South Chicago Heights, 575 F.3d 664, 674 (7th Cir. 2009)). Here,
Plaintiff is proceeding under the second option. On this motion, Chief Land does not contest the
sufficiency of the allegations that the Officers violated Plaintiff’s constitutional rights. Rather,
Chief Land seeks dismissal of the Monell claims on the basis that the allegations of a widespread
custom or policy are boilerplate and conclusory in nature.
In order to succeed on a de facto custom theory, “the plaintiff must demonstrate that the
practice is widespread and that the specific violations complained of were not isolated incidents.”
Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (citing Jackson v. Marion County,
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66 F.3d 151, 152 (7th Cir. 1995)); see also Thomas, 604 F.3d at 303–04. Thus, at the pleading
stage, to allege a widespread policy or custom such that it constitutes a de facto policy with the
force of law for Monell purposes, a plaintiff “must allege facts that permit the reasonable
inference that the practice is so widespread so as to constitute a governmental custom” and that
the occurrence was not an isolated incident. See Gill, 850 F.3d at 344 (citing McCauley v. City of
Chicago, 671 F.3d 611, 618 (7th Cir. 2011)).
In Gill, the Seventh Circuit Court of Appeals found that the plaintiff had failed to state a
claim of a widespread practice because he did not provide examples of other similar violations
nor plausibly allege that they existed. See Gill, 850 F.3d at 344. The court held that, “[t]he
specific actions of the detectives in Gill’s case alone, without more, cannot sustain a Monell
claim based on the theory of a de facto policy.” Id. (citing Palmer v. Marion County, 327 F.3d
588, 596 (7th Cir. 2003)). In contrast, in White v. City of Chicago, the Court of Appeals found
that the plaintiff’s allegations related to his individual incident were sufficient to state a claim of
Monell liability for an allegedly unconstitutional policy related to search warrant applications.
829 F.3d 837, 840–41, 843–44 (7th Cir. 2016). However, in White, the plaintiff had also offered
the police department’s “standard printed form that does not require specific factual support for
an application for an arrest warrant.” Id. at 844. Thus, the plaintiff was not required to identify
“even one other individual” who had been subjected to the same policy because the allegations
of his personal incident together with the form were sufficient to allege municipal liability. Id.
As to Counts I and II, Plaintiff’s factual allegations, like those in Gill, are insufficient to
support an inference that the alleged constitutional violations by the Officers were caused by a de
facto policy or custom under Monell. Count I alleges that “the false arrest was a direct and
proximate result of the Defendant Chief Pete Land’s policy and/or custom of authorizing,
approving, and/or turning a blind eye to its employee’s practicing/participating in false arrests
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and excessive force.” Compl. ¶ 19. Count II alleges that Plaintiff’s “detention and confinement
was a direct and proximate result of the Defendant, Chief Pete Land’s policy and/or custom of
authorizing, approving, and/or turning a blind eye to its employee’s[sic] practicing/engaging in
false arrests, thereby causing impermissible detention and/or confinement.” Id. ¶ 27. Plaintiff has
not alleged any facts in support of these alleged policies other than his own arrest on June 22,
2017. Plaintiff has not provided any factual detail regarding Chief Land’s alleged widespread
policies and/or customs beyond formulaic conclusions. Nor has Plaintiff identified other
evidence, such as the standard form offered in White, that would support an inference of a
widespread practice. Considering the Complaint as a whole, there are no facts alleged that make
it plausible that this was not an isolated event or that others may have suffered the same harm as
Plaintiff. Thus, the Court grants the motion to dismiss the Monell claims in Counts I and II.
However, in Count III, Plaintiff alleges a widespread policy based on a failure to train
that led to the alleged constitutional violations of excessive force and false arrest by the Officers.
In his response brief, Plaintiff invokes City of Canton v. Harris, 489 U.S. 378, 388–90 (1989), in
support of this claim. Pl. Mem. 8, ECF No. 17. Notably, Defendants’ briefs do not address the
legal standard for a Monell claim based on a failure to train. In limited circumstances, a
municipality’s failure to train its officers can rise to the level of a government policy. Connick v.
Thompson, 563 U.S. 51, 61 (2011) (“A municipality’s culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”). For municipal liability under § 1983,
the “failure to train its employees in a relevant respect must amount to ‘deliberate indifference to
the rights of persons with whom the [police] come into contact.’” Id. (quoting City of Canton,
489 U.S. at 388); see also Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 599 (7th Cir. 2019). “A
pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62
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(quoting Board of Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 409 (1997)). Deliberate
indifference can also be established based on a single incident that was a “highly predictable
consequence” of a failure to provide specific training. Id. at 63–64 (quoting Bryan Cty., 520 U.S.
at 409; citing City of Canton, 489 U.S. at 390 n.10); see also Woodward v. Corr. Med. Servs. of
Ill., Inc., 368 F.3d 917, 929 (7th Cir. 2004) (quoting Bryan Cty., 520 U.S. at 409).
Count III alleges that Chief Land “knowingly, recklessly, and/or with gross negligence
failed to instruct, supervise, control, and/or discipline on a continuing basis” the Officers in their
“duty to refrain from: a. Arresting individuals without probabl[e] cause. b. Using excessive
force.” Compl. ¶ 31. Count III also alleges that Chief Land “had knowledge that the wrongs to be
done by his employees and throughout his Department were about to be committed,” id. ¶ 32, or,
in the alternative, that, had Chief Land “diligently exercised his duty to instruct, supervise,
control and/or discipline Officers on a continuous basis, Chief Pete Land should have had, or
would have had knowledge that the wrongs to be done by his employees and throughout his
Department were about to be committed,” id. ¶ 33. Although Plaintiff does not allege any
instances of a constitutional violation other than his own, Plaintiff does allege that Chief Land
knowingly failed to instruct Crown Point police officers on the constitutional limitations on the
use of force and the constitutional requirement of probable cause for an arrest. If the Officers
were not trained in these areas, the alleged constitutional violations of excessive force and arrest
without probable cause are a “highly predictable consequence” of such a failure to train. Given
the liberal pleading standards, Plaintiff’s allegations are sufficient to state a Monell claim for
failure to train.
Therefore, the Court grants the motion as to the Monell claims in Counts I and II and
dismisses those claims without prejudice. The Court denies the motion as to Count III.

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B.

Fourteenth Amendment Due Process Claims
In Counts I and II, in addition to alleging § 1983 claims for excessive force, false arrest,

and false imprisonment in violation of the Fourth Amendment, Plaintiff also alleges a
deprivation of his liberty without due process of law in violation of the Fourteenth Amendment
based on the alleged arrest without probable cause. See Compl. ¶¶ 16(a), (b), 18, 26. Defendants
seek dismissal of the procedural due process claims based on the holding in Guenther v.
Holmgreen that, when state tort law provides a remedy for the matters that form the basis of a
Fourteenth Amendment claim for deprivation of liberty without due process of law, there is no
cognizable § 1983 procedural due process claim. 738 F.2d 879, 882 (7th Cir. 1984).
Here, Indiana state law makes available claims for false arrest, false imprisonment, and
battery for the Officers’ actions. See Wilson v. Isaacs, 929 N.E.2d 200, 201–02 (Ind. 2010) (“We
hold that a law enforcement officer’s use of force in excess of the reasonable force authorized by
statute is not shielded from liability under the ‘enforcement of a law’ immunity provided in
Indiana Code § 34-13-3-3(8) . . . .”); Row v. Holt, 864 N.E.2d 1011, 1016 (Ind. 2007)
(recognizing that governmental immunity for “enforcement of law” under Indiana Code § 34-133-3(8) does not extend to the torts of false arrest and false imprisonment). Because Indiana state
law makes these tort claims available, Plaintiff cannot state a Fourteenth Amendment claim for a
deprivation of liberty without due process of law based on his arrest in this case. See Guenther,
738 F.2d at 882; see also Foster v. Land, No. 2:16-CV-45, 2016 WL 3971699, at *3 (N.D. Ind.
July 25, 2016) (dismissing Fourteenth Amendment procedural due process claims based on a
deprivation of liberty from a mistaken arrest because “Indiana provides all the process necessary
to challenge the false arrest”); Burton v. City of Franklin, No. 1:11-CV-267, 2011 WL 2938029,
at *8 (S.D. Ind. July 18, 2011) (dismissing Fourteenth Amendment procedural due process

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claims because an adequate post-deprivation remedy was provided by the Indiana state law
causes of action of false imprisonment, false arrest, and malicious prosecution).
Thus, the Court grants the motion to dismiss the Fourteenth Amendment procedural due
process claims in Counts I and II and dismisses those claims without prejudice. This ruling does
not affect Plaintiff’s remaining § 1983 claims in Counts I and II alleging excessive force, false
arrest, and false imprisonment in violation of the Fourth Amendment, which is applicable to the
states through the Fourteenth Amendment. See Guenther, 738 F.2d at 882–83 (citing Baker v.
McCollen, 443 U.S. 137 (1979), as illustrative of the distinction between a general Fourteenth
Amendment due process right claim and a substantive Fourth Amendment claim); Foster, 2016
WL 3971699, at *4.
C.

State Law Claims in Counts IV, V, and VI
In Counts IV, V, and VI, Plaintiff brings state law claims of battery, intentional infliction

of emotional distress, and negligence against the Officers individually and also brings the battery
claim against Chief Land in his official capacity based on a theory of respondeat superior.
Defendants seek dismissal of all the state law claims. As set forth below, the battery claim
against Chief Land in his official capacity on a theory of respondeat superior and the claims
against the Officers for their acts within the scope of employment are barred based on Plaintiff’s
failure to comply with the notice requirements of the Indiana Tort Claims Act (ITCA). However,
Plaintiff has sufficiently pled in the alternative that the Officers were acting outside the scope of
their employment such that the state law claims may proceed against the Officers personally.
1.

ITCA Notice
Defendants move to dismiss the state law claims because Plaintiff failed to comply with

the notice requirements of the ITCA. The ITCA provides that tort claims against political
subdivisions and against governmental employees acting within the scope of their employment
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are barred where the plaintiff fails to file a notice with the government body and the Indiana
political subdivision risk management commission within 180 days of the claimed loss. See Ind.
Code § 34-13-3-8(a); Chang v. Purdue Univ., 985 N.E.2d 35, 51 (Ind. Ct. App. 2013). “Indiana
courts have consistently held that the failure to comply with the ITCA’s notice requirements
requires dismissal.” Weaver v. Elkhart Cmty. Sch. Corp., 95 N.E.3d 97, 101 (Ind. Ct. App. 2018)
(citing Orem v. Ivy Tech State Coll., 711 N.E.2d 864, 870 (Ind. Ct. App. 1999)). The parties do
not dispute that Plaintiff has alleged the Officers were acting within the scope of employment.
See Compl. ¶ 40. In his response brief, Plaintiff concedes that he did not comply with the notice
requirements of the ITCA. Pl. Mem. 10.1 Therefore, the Court grants the motion and dismisses
with prejudice the state law respondeat superior claim against Chief Land in his official capacity
and the state law claims against the Officers within the scope of employment.2
2.

Claims Against Officers Personally Outside the Scope of Employment—§ 34-13-3-5(c)
Defendants also move to dismiss the claims brought against the Officers personally based

on ITCA immunity.3 The motion is denied because Plaintiff has alleged sufficient facts to state a

1

“Compliance with the notice provisions of the ITCA is a procedural precedent which the plaintiff must
prove and which the trial court must determine before trial. Once a defendant raises failure to comply
with the ITCA’s notice requirements, the burden shifts to the plaintiff to prove compliance.” Alexander v.
City of South Bend, 256 F. Supp. 2d 865, 875 (N.D. Ind. 2003) (granting motion to dismiss state law
claims based on failure to provide ITCA notice) (internal citations and quotation marks omitted); see also
Ball v. City of Indianapolis, 760 F.3d 636, 644 (7th Cir. 2014) (affirming dismissal of state law tort
claims based on failure to timely file tort claim notice).

2

Because the claims based on acts within the scope of employment are barred, the Court does not reach
Defendants’ additional basis for dismissal under the law enforcement immunity provision of the ITCA for
acts within the scope of employment. See Ind. Code § 34-13-3-3(8).

3

The immunity provided by the ITCA is an affirmative defense that a complaint normally need not
anticipate in order to survive a motion to dismiss. See Moore v. Corizon Health Inc., No. 1:17-cv-987,
2018 WL 1522658, at *8 (S.D. Ind. Mar. 28, 2018) (citing United States v. Lewis, 411 F.3d 838, 842 (7th
Cir. 2005)). However, there is an exception when “the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense” such that dismissal is appropriate. Id. (quoting
Lewis, 411 F.3d at 842).

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claim in the alternative against the Officers personally under Indiana Code § 34-13-3-5(c) for
their acts outside the scope if employment.
The ITCA provides, in relevant part:
(b) . . . . 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. However, if the governmental entity answers that the employee acted
outside the scope of the employee’s employment, the plaintiff may amend the
complaint and sue the employee personally. . . .
(c) A lawsuit filed against an employee personally must allege that an act or
omission of the employee that causes a loss 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(b), (c).
Thus, “[u]nder the [ITCA], there is no remedy against the individual employee so long as
he was acting within the scope of his employment.” Ball v. City of Indianapolis, 760 F.3d 636,
645 (7th Cir. 2014); see Bushong v. Williamson, 790 N.E.2d 467, 472–73 (Ind. 2003) (explaining
that, where a plaintiff alleges that an employee acted within the scope of employment, § 34-13-35(b) “provides an immediate and early indication that the employee is not personally liable,”
even if the action is criminal). The requirements to state a claim against an employee personally
under § 34-13-3-5(c) apply only if the employee is alleged to have been acting outside the scope
of employment. See Ball, 760 F.3d at 644–45 (declining to consider the sufficiency of the
allegations under § 34-13-3-5(c) and finding that the state law claims against the individual
officer were properly dismissed because the complaint alleged that the officer was acting
pursuant to his position as a detective, cloaking him with immunity under § 34-13-3-5(b));

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Bushong, 790 N.E.2d at 471, 472–73;4 see also Ashcraft v. City of Crown Point, Ind., No. 2:13CV-080, 2013 WL 5934612, at *7 (N.D. Ind. Nov. 5, 2013) (citing Bushong, 790 N.E.2d at
471)); Young v. Davis, 40 N.E.3d 1254, 1256–57 (Ind. Ct. App. 2015); City of Gary v. Conat,
810 N.E.2d 1112, 1118 (Ind. Ct. App. 2004) (citing Bushong, 790 N.E.2d at 471)).
“To be within the scope of employment, conduct must be of the same general nature as
that authorized, or incidental to the conduct authorized.” Celebration Fireworks, Inc. v. Smith,
727 N.E.2d 450, 453 (Ind. 2000) (citing Restatement (Second) Agency § 229 (1958)). “[T]o be
incidental, however, [an act] must be one which is subordinate to or pertinent to an act which the
servant is employed to perform.” Id. (citing Restatement (Second) Agency § 229 cmt. b). Even
tortious, malicious, or criminal acts may fall within the scope of employment. See Burton v.
Benner, 140 N.E.3d 848, 853 (Ind. 2020); Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 461
(Ind. 2018); Bushong, 790 N.E.2d at 472–73; Celebration Fireworks, 727 N.E.2d at 453 (citing
Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993)); Ball v. Jones, 52 N.E.3d 813, 820 (Ind.
Ct. App. 2016) (citing Kemezy, 622 N.E.2d at 1298).
Whether an employee’s actions are within the scope of employment is generally a
question for the factfinder. See Bushong, 790 N.E.2d at 473 (recognizing that “whether the
tortious act of an employee is within the scope of employment is a question of fact” but also that
“under certain circumstances the question may be determined as a matter of law” and affirming

4

The Indiana Supreme Court in Bushong explained:
It is correct to say that a government employee may be sued personally where the
complaint alleges the act or omission causing the loss is criminal. See I.C. § 34-13-35(c)(1). However the fact of criminal conduct standing alone is not dispositive of whether
the employee was acting outside the scope of employment. . . . Even criminal acts may be
considered as being within the scope of employment if “the criminal acts originated in
activities so closely associated with the employment relationship as to fall within its
scope.”
790 N.E.2d at 472–73 (quoting Stropes v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d
244, 247 (Ind. 1989)).

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summary judgment in favor of the officer based on the evidence of record conclusively
demonstrating that the officer was acting in the scope of employment as a matter of law); see
also Cox, 107 N.E.3d at 460.
Plaintiff has sufficiently alleged in the alternative that the Officers were acting outside
the scope of employment. The Complaint alleges that the “battery upon the Plaintiff was not
done in furtherance of [the Officers’] employment, as such furtherance was extinguished when
the Defendant arrested and detained the Plaintiff without probable cause to do such.” Compl. ¶
41 (emphasis added). The Complaint alleges that the vehicle involved in the hit and run being
investigated by the Officers was not at Plaintiff’s residence. Id. ¶¶ 11, 41. And, in his response
brief, Plaintiff argues that the Officers knew that Plaintiff was not involved in the accident that
they were investigating yet they proceeded to “assault, batter, injure and arrest the Plaintiff on
fictitious charges.” Pl. Mem. 10. Defendants do not respond to this argument. While an arrest
without probable cause could certainly occur within the scope of employment, the Court finds, at
this pleading stage, that Plaintiff has sufficiently alleged facts in the alternative that the Officers
were acting outside the scope of employment. Cf. Ball, 52 N.E.3d at 820–21 (holding, on appeal
of a summary judgment ruling, that a police officer’s action of falsifying a probable cause
affidavit “was incidental to the conduct authorized” by his employer and “to an appreciable
extent to further his employer’s business” such that the officer was within the scope of
employment and cloaked with immunity).
Additionally, Plaintiff’s alleged facts are sufficient to state a claim against the Officers
personally under § 34-13-3-5(c).5 In his brief, Plaintiff argues that he has alleged conduct that

5

Section 34-13-3-5(c) provides that “[t]he complaint must contain a reasonable factual basis supporting
the allegations.” Ind. Code § 34-13-3-5(c). However, the Seventh Circuit Court of Appeals has suggested
that a complaint brought under § 34-13-3-5(c) in federal court need only comply with the notice pleading
standard under Federal Rule of Civil Procedure 8(a). Ball, 760 F.3d at 644–45.

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“clearly occurred outside the scope of their employ” (§ 34-13-3-5(c)(2)), was “malicious” (§ 3413-3-5(c)(3)), and/or was “willful and wanton” (§ 34-13-3-5(c)(4)). Pl. Mem. 9. As set forth
above, Plaintiff has sufficiently alleged in the alternative that the Officers acted outside the scope
of employment, which is usually a question of fact for the jury or resolved on summary judgment
once the facts are developed. A “malicious act” is defined as “an intentional, wrongful act
performed against another without legal justification or excuse.” Higgason v. State, 789 N.E.2d
22, 29 n.5 (Ind. Ct. App. 2003) (quoting Black’s Law Dictionary 969 (7th ed. 1999)). “Willful or
wanton” misconduct is defined as “an intentional act done with reckless disregard of the natural
and probable consequence of injury to a known person under the circumstances known to the
actor at the time.” Ellis v. City of Martinsville, 940 N.E.2d 1197, 1204–05 (Ind. Ct. App. 2011)
(quoting U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 924 (Ind. Ct. App. 1999)). Although
Defendants argue generally that Plaintiff has not alleged facts to show malicious and/or willful
and wanton conduct, Defendants offer no legal standard for either nor an anlaysis of the facts in
the Complaint. Defendants do not respond to Plaintiff’s argument that the Officers’ conduct was
malicious and/or willful or wanton once the Officers allegedly knew that they did not have
probable cause but nevertheless grabbed Plaintiff’s son from his arms, kicked Plaintiff in the
knee three times, wrestled him to the ground, twisted his back and arm, and arrested him. See
Compl. ¶¶ 16.d, 16.e, 38. The Court finds that, based on the liberal pleading standards, Plaintiff
has alleged sufficient facts to state a claim against the Officers personally under § 34-13-3-5(c).
CONCLUSION
Based upon the foregoing, the Court GRANTS in part and DENIES in part Defendants’
Partial Motion to Dismiss [ECF No. 13].
The Court (1) DISMISSES without prejudice Counts I and II against Defendant Chief
Pete Land in his official capacity; (2) DISMISSES without prejudice the Fourteenth Amendment
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USDC IN/ND case 2:19-cv-00225-TLS-JPK document 28 filed 10/13/20 page 15 of 15
procedural due process claims brought in Counts I and II as to all Defendants; and
(3) DISMISSES with prejudice the respondeat superior claim in Count IV against Defendant
Chief Pete Land in his official capacity and the claims in Counts IV, V, and VI against the
Officers within the scope of employment. The following claims REMAIN PENDING:
(1) Counts I and II on the § 1983 Fourth Amendment claims of excessive force, false arrest, and
unlawful detention and confinement against Defendant Officers Ballas, Burkholder, and Poling;
(2) Count III, which is the Monell claim for failure to train against Defendant Chief Pete Land in
his official capacity; and (3) Counts IV, V, and VI against Defendant Officers Ballas,
Burkholder, and Poling on the alternative allegation that they were acting outside the scope of
employment and, thus, can be sued personally under Indiana Code § 34-13-3-5(c).
SO ORDERED on October 13, 2020.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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