VANCE v. BALL STATE UNIVERSITY
ORDER granting 60 Defendants' Partial Motion to Dismiss - Accordingly, the Court will GRANT the motion for partial dismissal, dkt. 60 . Count II is dismissed with prejudice under Fed. R. Civ. Pro. 12(b)(6). Counts V and VI are dismissed without prejudice under Fed. R. Civ. Pro. 12(b)(1). Signed by Judge Jane Magnus-Stinson on 1/5/2012. (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
BALL STATE UNIVERSITY, JON LEWIS, and
Presently before the Court in this employment action is the Defendants’ Partial Motion
to Dismiss. [Dkt. 60.] The Plaintiff, Maetta Vance, has filed no response to the motion, and the
time for doing so has expired. [See dkt. 70.] Although the mere fact that Ms. Vance has filed no
response does not automatically mean that the Court must grant the motion, see Tobey v.
EXTEL/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993) (involving unopposed motion for summary
judgment), her silence does obviate the need for any extended discussion of it, see L.R. 7.1(b).
Through the present motion, the Defendants seek to dismiss only three counts in the
Amended Complaint. Count II alleges that Defendant Ball State University and Defendant Jon
Lewis, one of its employees, violated 42 U.S.C. § 1983 by depriving her of substantive and procedural due process in connection with their termination of her employment. Specifically, she
charges that that they illegally terminated her employment on the basis of “bogus write-ups,” on
the basis of a not-thoroughly-investigated report that she had threatened to “buy a 380 assault
rifle and shoot” another employee, and on the basis of an “[il]legitimate pre-termination hearing.” [Dkt. 33 ¶¶ 17, 25-28.] Count V alleges that Defendant Brian Scott, another employee of
Ball State, tortiously interfered with her employment by reporting, allegedly falsely, the threat
involving the assault rifle. [Id. ¶39.] And Count VI charges him with defamation for making
that statement. [Id. ¶41.]
In reviewing Ms. Vance’s Amended Complaint, the Court accepts as true its nonconclusory allegations and draws all reasonable inferences therefrom in favor of Ms. Vance as
the non-moving party. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965
(2007). For those counts in Ms. Vance’s Amended Complaint that contain properly pleaded allegations that, even if true, “fail to state a claim upon which relief can be granted,” the Court
must dismiss them. Fed. R. Civ. Pro. 12(b)(6). If the counts fail to come within the Court’s subject-matter jurisdiction, the Court must also dismiss them, albeit without prejudice. Fed. R. Civ.
Pro. 12(b)(1); T.W. v. Brophy, 124 F.3d 893, 898 (7th Cir. 1997) (“[W]hen a suit is dismissed for
want of subject-matter jurisdiction, that is, because the court has no power to resolve the case on
the merits even if the parties are content to have it do so, it is error to make the dismissal with
Although the Defendants invoke the “triply inaccurate” label of “eleventh amendment
immunity” against Count II, Mercado v. Dart, 604 F.3d 360, 361-62 (7th Cir. 2010) (citations
omitted),1 they are ultimately correct that Ms. Vance has failed to state a claim under § 1983
against Ball State, which Ms. Vance has previously conceded is an arm of the State of Indiana
and is thus not a “person” for the purposes of § 1983, Vance v. Ball State Univ., 2008 U.S. Dist.
LEXIS 12366, *10 (S.D. Ind. Feb. 15, 2008). For the same reason, any “official capacity” claim
against Mr. Lewis also fails. Mercado, 604 F.3d at 362 (citation omitted). To whatever extent
The triple inaccuracy arises “first because [Hans v. Louisiana, 134 U.S. 1 (1890)] did not interpret the eleventh amendment, whose text is limited to diversity suits; second because the eleventh amendment limits the jurisdiction of federal courts rather than establishing an immunity;
and third because a state (including a state officer sued in an official capacity) is not a ‘person’
for the purpose of § 1983.” Id. (citations omitted).
she seeks to sue him in his individual capacity, the claim fails because no allegation in the
Amended Complaint, conclusory or otherwise, suggests that he acted knowingly or intentionally,
as required, see Ruehman v. Sheahan, 34 F.3d 525, 528 (7th Cir. 1994) (“Negligence…does not
violate the due process clause.”).
Because Counts V and VI appear to allege that Mr. Scott committed torts within the
course and scope of his employment, those claims are actually brought only against Ball State
itself. Ind. Code § 34-13-3-5(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.”);
id. -5(c) (requiring lawsuits filed against individual employees of the state to affirmatively specify, if appropriate, that actions were outside the scope of employment).2 The Eleventh Amendment prohibits the Court from adjudicating those state-law claims, where, as here, the state agency objects. Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 542 (2002) (“[28 U.S.C.] §
1367(a)’s grant of [supplemental] jurisdiction does not extend to claims against nonconsenting
Accordingly, the Court will GRANT the motion for partial dismissal. [Dkt. 60]. Count
II is dismissed with prejudice under Fed. R. Civ. Pro. 12(b)(6). Counts V and VI are dismissed
without prejudice under Fed. R. Civ. Pro. 12(b)(1).
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
If the claims were against Mr. Scott personally, Ms. Vance would have said so in a response.
The Court interprets her lack of a response as a waiver of any argument that his alleged actions
fell outside the scope of his employment and thus potentially subjected him to individual liability.
Distribution via CM/ECF:
Lester H. Cohen
DEFUR VORAN LLP
Diamond Z. Hirschauer
THE LAW OFFICES OF DIAMOND Z. HIRSCHAUER, P.C.
Shawn A. Neal
DE FUR, VORAN, HANLEY, RADCLIFF & REED, LLP
Scott E. Shockley
DEFUR VORAN LLP
James Russell Williams
DEFUR VORAN LLP
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