Humberger v. Foresman et al

Filing 33

OPINION AND ORDER denying 16 Motion for Judgment on the Pleadings. Signed by Senior Judge James T Moody on 2/2/17. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DANIEL J. HUMBERGER,
Plaintiff,
v.
LONNY FORESMAN, et al.,
Defendants.

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No. 3:16 CV 23

OPINION and ORDER
I.

BACKGROUND
Plaintiff Daniel J. Humberger claims that in January of 2014, he was injured by

police officers who used excessive force, including a choke hold, during their
interaction with him. (DE # 1.) He has sued the officers involved and others for
violations of his federal constitutional rights under 42 U.S.C. § 1983 and for violations
of state tort law. (Id.) Two of the named defendants, Michael Grzegorek and Lonny
Foresman, have moved for judgment on the pleadings with regard to specific claims by
plaintiff against them. (DE # 16.) The motion has been briefed and is ripe for ruling.
II.

LEGAL STANDARD
In reviewing a motion for judgment on the pleadings pursuant to Federal Rule

of Civil Procedure 12(c), the court applies the same standard that is applied when
reviewing a motion to dismiss pursuant to Rule 12(b)(6). Pisciotta v. Old Nat’l Bancorp.,
499 F.3d 629, 633 (7th Cir. 2007). That means that the court “take[s] the facts alleged in

the complaint as true, drawing all reasonable inferences in favor of the plaintiff.” Id.
The complaint must contain only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
While there is no need for detailed factual allegations, the complaint must “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Pisciotta, 499 F.3d at 633 (citation omitted). Factual allegations also must be enough to
raise a right to relief above the “speculative level” to the level of “plausible.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009). 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.” Iqbal, 129 S. Ct. at 1949. In examining the facts and matching them
up with the stated legal claims, the court must give “the plaintiff the benefit of
imagination, so long as the hypotheses are consistent with the complaint.” Sanjuan v.
Am. Bd. of Psych. & Neur., Inc., 40 F.3d 247, 251 (7th Cir. 1994).
III.

DISCUSSION
A.

Federal Claim Against Grzegorek

Defendant Grzegorek, Sheriff of St. Joseph County, argues that plaintiff’s Section
1983 claim against him in his individual capacity should be dismissed. Notably,
plaintiff’s complaint specifies that Grzegorek is sued in his individual capacity “only.”
(DE # 1 at 2.)

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Under Section 1983, individual liability must be premised upon personal
responsibility. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). “An indiviudal
cannot be held liable in a § 1983 action unless he caused or participated in the alleged
constitutional deprivation.” Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).
“Without a showing of direct responsibility for the improper action, liability will not
lie against a supervisory official. A causal connection, or an affirmative link, between
the misconduct complained of and the official sued is necessary.” Id. While a
supervisor may be liable even when not directly involved in the constitutional
violation, see Wilks v. Young, 897 F.2d 896, 898 (7th Cir. 1990), the misconduct of the
subordinate must be affirmatively linked to the action or inaction of the superior. See
Rizzo v. Goode, 423 U.S. 362, 371 (1976).
Plaintiff admits that there is “very little, if any, causal connection or affirmative
link to the alleged deprivation complained of by the Plaintiff and Defendant
Grzegorek.” (DE # 19 at 3.) However, he argues in his response brief that inadequate
supervision and discipline of subordinate officers led to the unnecessary and illegal
use of force. (Id.) Under Seventh Circuit precedent, a plaintiff may allege additional
facts in response to a motion to dismiss. Early v. Bankers Life & Casualty Co., 959 F.2d 75,
79 (7th Cir. 1992) (“[A] plaintiff is free, in defending against a motion to dismiss, to
allege without evidentiary support any facts he pleases that are consistent with the
complaint, in order to show that there is a state of facts within the scope of the
complaint that if proved (a matter for trial) would entitle him to judgment.”); see also
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Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“A complaint
under Rule 8 limns [illuminates] the claim; details of both fact and law come later, in
other documents.”). Accordingly, plaintiff’s factual theory regarding Grzegorek’s
alleged inadequate supervision and discipline of subordinates will be considered.
However, plaintiff’s brief also alludes to actions by Grzegorek in his
“representative capacity” through which he allegedly employed a policy, practice, or
custom regarding: (1) supervision and discipline of officers, and (2) intervention into
and reporting of other officer’s behavior. (DE # 19 at 2-3.) These types of allegations are
appropriate when waged against a governmental entity itself, and would have been
appropriate had Grzegorek been sued in his official or representative capacity.
However, plaintiff’s complaint specifically states that Grzegorek “is sued in his
individual capacity on the federal claim only” and that the office of the St. Joseph
County Sheriff is “sued with respect to state law claims only.” (DE # 1 at 2.)
Accordingly, the aforementioned allegations that plaintiff set forth in his brief
regarding a policy, practice, or custom claim against the governmental entity that
Grzegorek represents is inconsistent with his complaint and will not be considered.
The sole allegation remaining regarding Grzegorek personally, then, is that he
inadequately supervised and disciplined subordinate officers, which led to the
unnecessary and illegal use of force. A supervisor can be personally liable under
Section 1983 if he or she “know[s] about the conduct and facilitate[s] it, approve[s] it,
condone[s] it, or turn[s] a blind eye for fear of what they might see.” Jones v. City of
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Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Although the Seventh Circuit has indicated
that the standards for supervisory liability are “murky” after Iqbal, it has also
commented that Iqbal has not changed the rule that supervisors can be individually
liable for wrongs they direct or authorize. Arnett v. Webster, 658 F.3d 742, 757 (7th Cir.
2011). Plaintiff’s allegations regarding Grzegorek’s failure to correct inappropriate
behavior by officers is sufficient under Jones to state a claim. Johnson v. City of Hammond,
No. 2:14 CV 281, 2016 WL 1244016, at *3 (N.D. Ind. Mar. 29, 2016) (plaintiff sufficiently
pleaded that police chief authorized and/or turned a blind eye to officer’s acts).
Accordingly, defendants’ motion for judgment on the pleadings regarding plaintiff’s
claim against Grzegorek is denied.
B.

State Law Claims Against Foresman

Defendant Foresman, a deputy employed by the St. Joseph County Sheriff,
argues that plaintiff’s state law claim against Foresman should be dismissed because it
is barred by the Indiana Tort Claims Act (“ITCA”). The ITCA removed a substantial
portion of the state’s sovereign immunity which had existed previously under the
Eleventh Amendment, but this immunity was not completely eradicated. Sheets v. Ind.
Dep’t of Corr., 656 F. Supp. 733, 741 (S.D. Ind. 1986). One vestige of sovereign immunity
that was retained is the ITCA’s restriction on suits against governmental employees
personally; if a plaintiff alleges that an employee was acting within the scope of his
employment, as plaintiff does in his complaint (DE # 1 ¶ 50), the plaintiff is barred
from bringing a state law tort claim against the employee personally unless the
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governmental entity answers that the employee was acting outside the scope of his
employment. Ind. Code § 34-13-3-5(b).
The trouble for Foresman is that sovereign immunity is a waivable affirmative
defense. Sung Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012). Federal
Rule of Civil Procedure 8(c) requires a defendant to include affirmative defenses in his
answer, and Foresman did not list the ITCA’s bar on suits against governmental
employees personally in his answer. Accordingly, the court cannot properly consider
his argument in the present motion for judgment on the pleadings. Of course, a district
court has the discretion to allow an answer to be amended to assert an affirmative
defense not raised initially. Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005) (citing
Fed. R. Civ. P. 15(a); Jackson v. Rockford Housing Auth., 213 F.3d 389, 392–93 (7th Cir.2000)
(“Amendment is allowed absent undue surprise or prejudice to the plaintiff.”)). But
until Foresman moves to amend his answer and arguments from both sides on the
matter of amendment have been considered, the court cannot address the issue of the
applicability of Section 34-13-3-5(b) to plaintiff’s state law claims against Foresman.
IV.

CONCLUSION
For the reasons set forth above, defendants’ motion for judgment on the

pleadings (DE # 16) is DENIED.
SO ORDERED.
Date: February 2, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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