Stambaugh v. Grzegorek

Filing 42

OPINION AND ORDER granting 34 Motion to Dismiss : claims against the John/Jane Doe Defendants and St. Joseph County Sheriff Mike Grzegorek are DISMISSED WITH PREJUDICE. The case remains pending against Defendant, Beacon Health Ventures, Inc. Signed by Judge Rudy Lozano on 4/28/15. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOSEPH STAMBAUGH,
Plaintiff,
v.
ST. JOSEPH COUNTY
SHERIFF MIKE GRZEGOREK,
et al.,
Defendants.

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CAUSE NO. 3:14 CV 582

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss
Plaintiff’s First Amended Complaint, filed by Defendant, St. Joseph
County Sheriff Mike Grzegorek, on December 4, 2014 (DE #34).

For

the reasons set forth below, the Motion (DE #34) is GRANTED and the
claims against the John/Jane Doe Defendants and St. Joseph County
Sheriff Mike Grzegorek are DISMISSED WITH PREJUDICE.

The case

remains pending against Defendant, Beacon Health Ventures, Inc.

BACKGROUND
The following facts are based on the allegations of the first
amended complaint, which this Court accepts as true at this stage
of the litigation.

This lawsuit stems from the policies and

practices engaged in by Defendants at the St. Joseph County Jail in
South

Bend

from

approximately

May

25,

2013

to

approximately

November 28, 2014.

Plaintiff, Joseph Stambaugh, claims he was

denied adequate medical care for a serious medical condition while
in St. Joseph County Jail.
Beacon Health Ventures, Inc., d/b/a Memorial Home Care, Inc.,
a/k/a Memorial Home Care (hereinafter “Beacon”), is a company doing
business at 3355 Douglas Road, in South Bend, Indiana.

(First Am.

Compl., DE #21 at ¶4.)

Beacon employed the John Does/Jane Does as

medical

the

personnel

responsible

for

incarceration.
2012.

at
the

(Id.)

(Id. at ¶5.)

St.

medical

Joseph
care

County

of

Jail

were

during

Stambaugh

that

his

Stambaugh was arrested on or about May 12,
During his arrest, Stambaugh was shot

approximately fourteen times prior to being apprehended, with at
least three of the shots hitting him in his hands causing damage to
his fingers and hands.

(Id.)

Stambaugh’s physician ordered that

he receive bone grafts and repair of severed nerves, which needed
to be reconnected in his upper right arm.

(Id.)

After his arrest,

the Plaintiff was booked into the St. Joseph County Jail, on or
about May 25, 2012, where he continued to require significant
medical care and treatment of his injuries.

(Id.)

During the six months Stambaugh remained incarcerated at the
jail, he never actually received nerve surgery for his right arm,
contrary to his physician’s advice.

(Id. at ¶6.)

Plaintiff

alleges the surgery was necessary for him to have the potential to
regain movement and functioning in his right hand.

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(Id.)

After

asking the St. Joseph County Jail Warden and the Jail Medical
Director about the nerve surgery, Stambaugh was told that the
nearest specialist who could do the surgery was in Indianapolis,
Indiana, and required payment of the surgery up front, or they
could not do the surgery.

(Id.)

Stambaugh was indigent and could

not pay up front for the surgery, so the nerve surgery was never
scheduled.
(Id.)

(Id.)

However, the bone graft surgery did occur.

Stambaugh alleges because the John Doe/Jane Doe jail and

medical personnel never arranged for or scheduled the nerve surgery
for Plaintiff, his right arm is paralyzed and has atrophied.

(Id.

at ¶7.)
Stambaugh has sued St. Joseph County Sheriff, Mike Grzegorek,
and Beacon Health Ventures, Inc., d/b/a Memorial Home Care, Inc.,
a/k/a Memorial Home Care.

Stambaugh’s first amended complaint,

pursuant to section 1983, alleges that the individually named
Defendants, John Does/Jane Does were deliberately indifferent to
his serious medical need for nerve surgery in his right arm and by
failing to arrange for and schedule his surgery, they subjected him
to a denial of adequate medical care in violation of Plaintiff’s
federally protected right to be free from cruel and unusual
punishment under the Eight Amendment of the United States. (Id. at
¶8.)
Stambaugh
Defendants

John

further

contends

Does/Jane

Does

3

that
were

the

individually

acting

pursuant

named
to

the

“unconstitutional/constitutionally deficient policies, practices,
procedures,

and/or

customs

of

the

St.

Joseph

County

Sheriff

pertaining to the provision of the medical care to prisoners,
including indigent prisoners such as the Plaintiff when they denied
him adequate medical care.”

(Id. at ¶9.)

Stambaugh alleges that

the Sheriff, “in his official capacity,” is therefore liable for
the denial of adequate medical care as well.

(Id.)

Further,

Stambaugh claims that John Doe/Jane Doe jail medical personnel who
were the direct employees of Memorial Home Care, Inc., acted
carelessly, recklessly and with negligence as to the provision of
medical care to the Plaintiff, making Memorial Home Care Inc.
liable to him under respondent superior.

(Id. at ¶10.)

Defendant, St. Joseph County Sheriff, Mike Grzegorek, filed
the instant Motion to Dismiss the First Amended Complaint under
Rule 12(b)(6) for failure to state a claim on December 4, 2014 (DE
#34.)

Stambaugh filed a response in opposition to the Motion to

Dismiss on December 30, 2014 (DE #38.)
reply on January 5, 2015 (DE #40.)

Defendant then filed a

This motion is fully briefed

and ripe for adjudication.

DISCUSSION
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
granted.” Allegations other than fraud and mistake are governed by

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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.
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, plaintiffs may plead

themselves out of court if the complaint includes allegations that
show they cannot possibly be entitled to the relief sought.
McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

Motion to Dismiss John/Jane Does Individually
Federal Rule of Civil Procedure Rule 10(a) states that every
pleading must have a caption with the court’s name, a title, a file
number and a Rule 7(a) designation.

The title of the complaint

must name all the parties; the title of other pleadings, after
naming the first party on each side, may refer generally to other
parties.

Also, Federal Rule of Civil Procedure Rule 4m states: If

a defendant is not served within 120 days after the complaint is
filed, the court . . . must dismiss the action without prejudice

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against the defendant or order that service be made within a
specified time.
Defendant, Sheriff Grzegorek, moves to dismiss the claims
against the John/Jane Doe Defendants, names unknown, who are named
in their individual capacity pursuant to 42 U.S.C. § 1983, because
the John/Jane Doe Defendants were not listed in the caption.
#34 ¶5.)

(DE

Defendant further moves to dismiss the claims because

Stambaugh has failed to serve the John/Jane Doe Defendants within
120 days of the filing of the complaint in compliance with Fed. R.
Civ. P. 4m.

(Id. ¶6.)

Finally, Defendant argues that “[a]ny

attempt by Plaintiff now to amend his First Amended Complaint in
order to identify and name the John/Jane Doe Defendants would be
futile since such an action would be barred by the statute of
limitations.”

(Id. ¶ 7.)

Stambaugh filed his original complaint on March 24, 2014,
naming John/Jane Doe Defendants.

(DE #5.)

On September 4, 2014,

Stambaugh filed his first amended complaint modifying his claim by
removing the John/Jane Doe Defendants from the caption1 and adding
Beacon as a defendant.

(DE #21.)

It has been over 120 days since

the complaint was filed. Plaintiff’s claim brought under 42 U.S.C.
§ 1983 has a two year statute of limitations, which began running

1

However, there are still allegations in the first amended
complaint that the “individually-named Defendants are John/Jane
Does (names unknown) who are named in their individual capacity
pursuant to 42 U.S.C. § 1983.” (First Am. Compl., DE #21, ¶ 2.)
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on the date which Plaintiff discovered he had been injured - in
this case, at the latest, on November 28, 2012 (the latest date
Plaintiff claims he was deprived of medical care).

Wallace v.

Kato, 549 U.S. 384, 387 (2007); Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 450 (7th Cir. 1990).
Stambaugh concedes that “there are no John/Jane Doe Defendants
as they were never identified and the statute of limitations has
expired.” (DE #38. P. 1.)

Plaintiff also states “there are no

individually-named Defendants who are liable in their individual
capacity” (emphasis in original) and that “the individual capacity
claims against the individual actors were not filed within the
appropriate statute of limitations.” (DE #39, pp. 1-2.) The Court
concurs that even if Stambaugh tried to amend the complaint in the
future again to identify John Doe and Jane Does, it would be
inappropriate to grant such leave to amend because a plaintiff
cannot,

“after

the

statute

of

limitations

period,

name

as

defendants individuals that were unidentified at the time of the
original pleading.” Jackson v. Kotter, 541 F.3d 688, 696 (7th Cir.
2008).

Therefore, the claims against the John/Jane Doe Defendants

are hereby dismissed with prejudice as untimely.

See, e.g., Todd

v. Lake Cnty. Sheriff’s Dep’t, No. 2:08 CV 314, 2013 WL 2156470, at
*10-11 (May 17, 2013)(dismissing case against John Doe defendants
with prejudice where Court found the limitations period had expired

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as to John Doe defendants).2

Motion to Dismiss Claims Against the Sheriff
There are two main allegations against Sheriff Mike Grzegorek
in the first amended complaint.

Plaintiff alleges that he, in his

official capacity, was responsible for the policies, practices,
procedures, and customs in effect at the St. Joseph County Jail
pertaining to the provision of medical care to prisoners, which
resulted in an unconstitutional denial of adequate medical care to
Plaintiff from May 25, 2012 through November 28, 2013.
¶3.)

(DE #21,

Further, Stambaugh argues the individually-named Defendants

John

Does/Jane

Does

were

acting

pursuant

to

the

unconstitutional/constitutionally deficient policies, practices,
procedures

and/or

customs

of

the

St.

Joseph

County

Sheriff

pertaining to the provision of medical care to prisoners, including
indigent prisoners such as Plaintiff when they denied him adequate
medical care, so the Sheriff is liable in his official capacity for
the denial of adequate medical care, which violated Plaintiff’s
rights under the Eighth Amendment and 42 U.S.C. § 1983. (DE #21,
¶9.)

The complaint specifies Sheriff Grzegorek “is named in his

official capacity” (DE #21, ¶3), and it is settled that “the
2

To the extent Defendant requests in his reply memorandum
that certain paragraphs of the first amended complaint be
stricken (DE #40, pp. 1- 3), this request violates the local rule
that motions must be filed separately. N.D. Ind. L.R. 7-1. As
such, the request is denied.
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capacity in which litigation proceeds is largely the plaintiff’s
choice . . . [t]he plaintiff may plead a claim either way . . . .”
Walker v. Rowe, 791 F.2d 507, 508 (7th Cir. 1986) (citation
omitted).
42 U.S.C. § 1983 states in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any
State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the
deprivation of any rights . . . secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
As an initial matter, it is important to note that §1983 “does
not

create

vindicating

substantive
federal

rights;

rights

rather,

conferred

‘it

is

a

elsewhere’.”

means
Padula

for
v.

Leimbach, 656 F.3d 595, 600 (7th Cir. 2011) (quoting Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir. 1997)).

Thus, in order to

state a valid claim for relief under § 1983, the “[plaintiff] must
establish

that

[he

was]

deprived

of

a

right

secured

by

the

Constitution or laws of the United States, and that the alleged
deprivation was committed under color of state law.”

American

Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Padula, 656
F.3d at 600; Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th
Cir. 2006).
A claimant can impose personal liability on a government
official under section 1983 by demonstrating that the official,

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acting under color of state law, caused the deprivation of a
federal right.

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

A

suit against a government officer in his official capacity is
really suit against an entity of which the officer is an agent.
Mihelic v. Will Cnty., Illinois, 826 F.Supp.2d 1104, 1117 (N.D.
Ill. 2011) (citing Franklin v. Zaruba, 150 F.3d 682, 684 n.1 (7th
Cir. 1998)).

Governmental liability cannot attach where there is

no finding that the individual officer is liable on the underlying
substantive claims.

Durkin v. City of Chicago, 341 F.3d 606, 615

(7th Cir. 2003) (affirming dismissal of section 1983 claim where no
individual officer was liable on the underlying substantive claim,
so “a municipality cannot be found liable if there is no finding
that the individual officer is liable on the underlying substantive
claim”.).

If the individual has not suffered a constitutional

deprivation at the hands of an individual officer, the fact that
departmental policies might have authorized the officers’ actions
is irrelevant.
liability
individual

cannot

Mihelic, 826 F.Supp.2d at 1117 (“Governmental
attach

officers

are

where

there

liable

on

is

the

no

finding

underlying

that

the

substantive

claims.”).
In the instant motion, Defendant argues that the claim against
Sheriff Grzegorek should be dismissed because there is a lack of an
underlying claim against the individual jail medical personnel (who
were dismissed).

Plaintiff simply contends “this argument is

10

ridiculous,” and cites two cases from other circuits, Colvin v.
McDougall, 62 F.3d 1316, 1318 (11th Cir. 1995) (merely stressing
the difference between an official capacity suit and an individual
capacity suit), and Gean v. Hattaway, 330 F.3d 758, 765-66 (6th
Cir. 2003) (reviewing the difference between official capacity
suits and individual capacity suits), which factually are not on
par with this case, and legally, have no relevance to this case.
In stark contrast, Defendant Sheriff Grzegorek has cited a case
that is directly on point.

In Mihelic,

on a motion to dismiss,

the Court dismissed the claims against the individual sheriffs
because it found the first and second amended complaints did not
relate back to the initial complaint, and the claims against the
individual officers were barred by the statute of limitations.
Mihelic, 826 F.Supp.2d at 1115-16.

The Court then reasoned that:

[G]overnmental liability cannot attach where there is no
finding that the individual officers are liable on the
underlying substantive claims. Where an individual has
not suffered a constitutional deprivation at the hands of
an individual officer, the fact that departmental
policies might have authorized the officers’ actions is
besides the point. Here, because the Court has dismissed
the underlying claims against the individual officers,
there is no underlying constitutional violation.
Accordingly, Plaintiff’s claims against [the sheriff] in
his official capacity . . . are dismissed.
Id. at 1117-18 (citations omitted).
Similarly, Plaintiff in this case has conceded that the
statute of limitations has expired on the John and Jane Doe
defendants, thus there cannot be a finding that the individual

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officers or care givers are liable on underlying substantive
claims.

As such, because there is no underlying constitutional

violation, the claim against Sheriff Grzegorek in his official
capacity must be dismissed.

See, e.g., Schlatter v. Fries, No.

1:11-CV-211, 2013 WL 3288412, at *13-14 (N.D. Ind. June 27, 2013)
(dismissing official capacity claim against sheriff where plaintiff
failed to first show an underlying constitutional violation by
individual employees).

CONCLUSION
For the reasons set forth below, the Motion (DE #34) is
GRANTED and the claims against the John/Jane Doe Defendants and St.
Joseph County Sheriff Mike Grzegorek are DISMISSED WITH PREJUDICE.
The case remains pending against Defendant, Beacon Health Ventures,
Inc.

DATED:

April 28, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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