CELEBRATIONS EVENT CENTER et al v. BALLARD et al

Filing 40

ORDER denying 27 Motion to Dismiss. The motion is fully briefed, and the Court, being duly advised, DENIES the Defendants motion for the reasons set forth. ***SEE ENTRY FOR INSTRUCTIONS AS TO DEFENDANT CIESIESKI*** Signed by Judge William T. Lawrence on 7/7/2011. (JHO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CELEBRATIONS EVENT CENTER, et al., )
)
Plaintiffs,
)
)
vs.
)
)
DETECTIVE WILLIAM CARTER, et al., )
)
Defendants.
)
)

Cause No. 1:10-cv-1429-WTL-MJD

ENTRY ON MOTION TO DISMISS
Presently before the Court is a Motion to Dismiss (Docket No. 27) filed by the
Defendants – Chief of Police Paul R. Ciesielski, Detective William Carter, Sergeant David
Wisneski, and the City of Indianapolis. The motion is fully briefed, and the Court, being duly
advised, DENIES the Defendants’ motion for the reasons set forth below.
I. RULE 12(b)(6) STANDARD
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must take the facts
alleged in the Complaint as true and draw all reasonable inferences in favor of the Plaintiffs. 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), and there is no need for detailed factual allegations.
However, the statement must “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests” and the “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir.
2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
II. BACKGROUND
The facts, as alleged in the Plaintiffs’ Amended Complaint (Docket No. 20), are as

follows.
Plaintiffs Mabiljengo, Muhammad, and Lateef operate Celebrations Event Center
(“Celebrations”) which provides rental space and equipment to individuals or groups for a
variety of events. On or about November 15, 2009, the Indianapolis Metropolitan Police
Department (“IMPD”) responded to gunshots in the neighborhood where Celebrations is located.
Suspects in the shooting were detained, interviewed, and eventually arrested.
After the above incident, Detective William Carter (“Det. Carter”) entered Celebrations,
on two separate occasions, without a warrant and conducted a search of the premises. He did so
at the direction of Sergeant David Wisneski (“Sgt. Wisneski) and pursuant to the common
practice of the City of Indianapolis (“the City”) to target African-American owned businesses for
the criminal activity in the surrounding neighborhoods. Sgt. Wisneski also directed IMPD
officers to harass the Plaintiffs on a nightly basis in order to undermine their existing or
prospective business contracts. As a result of these searches, Celebrations was cited for several
violations of the Revised Code of the Consolidated City and County (“Revised Code”) and
received fines totaling $1,614.00. The Plaintiffs satisfied this fine in May 2010.
The Plaintiffs filed this suit alleging violations of state and federal law. The Defendants
have now moved to dismiss the charges against them.
III. DISCUSSION
A. The Defendants’ Heck argument
The Defendants first argue that all of the Plaintiffs’ claims are barred under Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court addressed whether an individual
who was convicted of a crime could bring a § 1983 suit for damages when the damages suit

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would call into question the validity of his conviction. See 512 U.S. at 483. The Supreme Court
concluded that “the hoary principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments applies to § 1983 damages actions
that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.”
Id. at 486. Thus,
in order to recover damages for . . . harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.
Id. at 486-87. If a prisoner’s claim for damages under § 1983 “would necessarily imply the
invalidity of his conviction or sentence” then “the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at
487.
Clearly, in order for Heck to apply, the Plaintiffs must have been convicted of a criminal
offense. The Defendants assume that the Plaintiffs’ fine for violating the Revised Code is
equivalent to a criminal conviction. The Court does not agree. The Indiana Court of Appeals
recently stated: “[I]t has long been established that prosecution for the violation of a city
ordinance in which a monetary penalty only is sought is a civil and not a criminal action.” Boss
v. State, 944 N.E.2d 16, 21 (Ind. Ct. App. 2011). There is nothing in the record to suggest that
the Plaintiffs were convicted of a criminal offense for violating the Revised Code. Accordingly,
the Defendants’ Heck argument fails and, to the extent the Defendants’ motion sought dismissal
under Heck, the motion is DENIED.
B. Official capacity suits against Det. Carter, Sgt. Wisneski, and Chief of Police Paul R.
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Ciesielski (“Chief Ciesielski”)
The Defendants next argue that the Plaintiffs cannot bring official capacity suits against
Det. Carter, Sgt. Wisneski, and Chief Ciesielski under § 1983. The Plaintiffs concede that the §
1983 claims against Sgt. Wisneski and Det. Carter should only be maintained against those
Defendants in their individual capacities. As such, the Court need only address this issue in
regards to Chief Ciesielski.
Official capacity suits “generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(quoting Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690, n.55 (1978)).
The Defendants correctly point out that the Plaintiffs’ official capacity claim against Chief
Ciesielski is essentially a claim against the City of Indianapolis. See Perry v. Thomas 1:09-cv1051-TWP-MJD, 2011 WL 693622 at *4-5 (S.D. Ind. Feb. 18, 2011); see also Indianapolis
Metropolitan Police Department, Establishment of IMPD as a Division of the Department of
Public Safety – February 2008, http://www.indy.gov/eGov/City/DPS/IMPD/About/History/
Pages/home.aspx (last visited July 7, 2011) (stating that the chief of police is appointed by the
director of public safety who is appointed by the mayor). Given that the City of Indianapolis is
already a Defendant in this case, suing Chief Ciesielski in his official capacity is redundant.
Therefore, the parties are ordered to conform the caption in all subsequent filings accordingly.
C. Individual capacity suits against Det. Carter and Sgt. Wiesneski
The Plaintiffs concede that the § 1983 claim against Det. Carter and Sgt. Wiesneski,
Count II, should only be maintained against those Defendants in their individual capacities.
“Individual liability under 42 U.S.C. § 1983 can only be based on a finding that the defendant

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caused the deprivation at issue.” Kelly v. Mun. Courts of Marion Cnty., 97 F.3d 902, 909 (7th
Cir.1996). The Defendants argue that the individual capacity suits in Count II should be
dismissed because the Plaintiffs’ allegations “are too bare-boned and conclusory to survive
dismissal.” Defs.’ Brief at 15. They argue that under Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
these mere allegations are not sufficient to survive dismissal.
The Court does not agree. The boundary between a well-pled complaint and an
insufficient one under Twombly and its progeny is, quite frankly, still evolving and therefore
somewhat blurry. While it may be difficult for courts to articulate why a particular case falls on
one side or the other of the line, the overriding principle of the new pleading standard is clear:
notice pleading is still all that is required, and “a plaintiff still must provide only enough detail to
give the defendant fair notice of what the claim is and the grounds upon which it rests, and,
through his allegations, show that it is plausible, rather than merely speculative, that he is entitled
to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (citations and internal
quotation marks omitted). The allegations in Count II of the Plaintiffs’ Amended Complaint
satisfy this standard and are thus not subject to dismissal pursuant to Twombly.
By arguing to the contrary, the Defendants seek to impose a pleading standard that is
inconsistent with notice pleading. For example, the Defendants allege that the Plaintiffs did not
state “how access was gained to their facility, what was searched, or what was improperly
discovered.” Defs.’ Brief at 15. Notice pleading does not require such specificity in non-complex
cases, however. As noted in Tamayo, the Supreme Court’s “explicit praise” of what is now Form
11 of the Federal Rules of Civil Procedure “illustrates that conclusory statements are not barred
entirely from federal pleadings.”
The [Twombly] Court noted that a complaint of negligence in compliance with

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Form 9 provides sufficient notice to defendants, even though it alleges only that the
defendant, on a specified date, “negligently drove a motor vehicle against plaintiff
who was then crossing [an identified] highway.” Bell Atlantic, 127 S.Ct. at 1977;
see also Iqbal v. Hasty, 490 F.3d 143, 156 (2d Cir. 2007). To survive dismissal at
this stage, the complaint need not state the respects in which the defendant was
alleged to be negligent (i.e., driving too fast, driving drunk, etc.), although such
specificity certainly would be required at the summary judgment stage. Bell
Atlantic, 127 S.Ct. at 1977; Iqbal, 490 F.3d at 156. In these types of cases, the
complaint merely needs to give the defendant sufficient notice to enable him to
begin to investigate and prepare a defense.
Tamayo, 526 F.3d at 1084-85. The Plaintiffs have given the Defendants such notice in this case,
and that is all that notice pleading requires of them. As such, the Court finds the statements
regarding the illegal searches sufficient and the Defendants’ Motion to Dismiss Count II is
DENIED.

D. § 1983 suit against the City of Indianapolis
The Defendants next argue that the Plaintiffs have not pled that the City “maintained a
custom, policy or practice which resulted in a constitutional deprivation.” Defs.’ Brief at 9. In
Monell, 436 U.S. at 691, the Supreme Court emphasized that “a municipality cannot be held
liable solely because it employs a tortfeasor – or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” A proper § 1983 claim requires that a
plaintiff allege one of the following: (1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that, although not expressly authorized, is
so permanent and well-settled as to constitute a custom or usage; or (3) that the plaintiff’s
constitutional injury was caused by a person with final policy-making authority. Billings v.
Madison Metro. Sch. Dist., 259 F.3d 807, 817 (7th Cir. 2001).
The Plaintiffs chose the second option, claiming the Defendants have a common practice
of “target[ing] legitimate businesses, particularly African American owned businesses, for
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criminal activity in surrounding neighborhoods.” Amend. Compl. ¶ 19. The Defendants raise
several issues with this claim. They first argue that the Plaintiffs cannot establish a Monell claim
based on the City’s enforcement of the Revised Code. They cite numerous cases supporting
their argument that a municipality cannot be held liable for enforcing state law. However, this
argument is not persuasive because the Plaintiffs’ claims do not in fact take issue with the
enforcement of the Revised Code. To the contrary, the Plaintiffs state they do not challenge the
fines they paid but instead aver that the “Defendants targeted their legitimate business for crimes
in the surrounding neighborhood and then systematically harassed Plaintiffs until they could no
longer sustain a profitable business venture.” Pl.’s Response at 6.
The Defendants next claim that the Plaintiffs did not identify an express policy that
violated their Constitutional rights. However, the Plaintiffs’ § 1983 claims were brought
pursuant to the “widespread practice that constitute[s] a custom or usage” portion of Monell, not
the “an express policy” portion. Billings, 259 F.3d at 817. Thus, identification of an express
policy is not required.
Finally, the Defendants argue that the Plaintiffs’ allegations do not demonstrate a
widespread custom or practice but rather demonstrate only a single instance of lawfully
enforcing the Revised Code. First, as stated above, the Plaintiffs’ claims are not premised on the
City’s enforcement of the Revised Code. Moreover, the Seventh Circuit has stated that the
Federal Rules of Civil Procedure do not allow courts to dismiss these types of claims “for lack of
factual specificity.” McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). Rather,
“litigants must rely on summary judgment and control of discovery to weed out unmeritorious
claims sooner rather than later.” McCormick, 230 F.3d at 325 (quoting Leatherman v. Tarrant

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Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993)).
While the Defendants identify cases establishing that the Plaintiffs will eventually have
to produce evidence of a widespread custom, this is not required at the motion to dismiss stage.
See McCormick at 324. (“The smattering of phrases like ‘highest policymaking officers’ and
‘widespread custom’ throughout McCormick’s complaint is a common practice designed to
ensure that the complaint will withstand scrutiny under liberal notice pleading”). The Plaintiffs’
Amended Complaint, which alleges: (1) “[t]he City of Indianapolis is the municipality . . .
charged with governing . . . the Department of Public Safety,” Amend. Compl. ¶ 57; (2) “the
Director of the Department of Public Safety duly appointed Chief Paul R. Ciesielski as the Chief
of Police to the IMPD,” Id. ¶ 59; and (3) “[t]he widespread and common practices of Chief
Ciesielski with regard to the IMPD represent the policies of The Department of Public Safety
and the City of Indianapolis,” id. ¶ 61, is sufficient to survive a motion to dismiss. As such, the
Defendant’s motion is DENIED as to the § 1983 claims against the City.
E. State law claims
Finally, the Defendants argue that Det. Carter and Sgt. Wiesneski are entitled to law
enforcement immunity with regards to the state law claims in Count I because the Defendants
“were acting within the scope of their employment with the IMPD as law enforcement officers at
the time of the alleged conduct.” Defs.’ Brief at 14.
The Indiana Torts Claim Act states that “[a] governmental entity or an employee acting
within the scope of the employee’s employment is not liable if a loss results from . . . [t]he
adoption and enforcement of or failure to adopt or enforce a law (including rules and
regulations).” IND. CODE ANN. § 34-13-3-3 (West 2011). The Plaintiffs argue that because the

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Defendants’ actions violated their Constitutional rights, they are not entitled to law enforcement
immunity. The Indiana Court of Appeals has clarified Section 3(8) concluding “that the
‘enforcement’ spoken of . . . means compelling or attempting to compel the obedience of another
to laws, rules, or regulations, and the sanctioning or attempt to sanction a violation thereof.” St.
Joseph Cnty. Police Dept. v. Shumaker, 812 N.E.2d 1143, 1150 (Ind. Ct. App. 2004).
The Plaintiffs allege that on two separate occasions “Det. Carter entered Plaintiffs’
building without a warrant and conducted a search of the premises” and that “said searches were
for the sole purpose of undermining the legitimate business interests of Plaintiffs.” Pls.’ Brief at
5. They further allege that “Sgt. Wisneski directed IMPD officers . . . to harass Plaintiffs . . . on
a nightly basis.” Id. Taking these allegations as true, Det. Carter and Sgt. Wisneski were not
enforcing any laws when they conducted illegal searches of the Plaintiffs’ business and harassed
the Plaintiffs on a nightly basis. As such, they are not entitled to law enforcement immunity and
the Motion to Dismiss Count I is DENIED.
CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss (Docket No. 27) is
DENIED.
SO ORDERED:

07/07/2011

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to:

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Jennifer Lynn Haley
City of Indianapolis, Corporation Counsel
[e-mail]
Mark John Pizur
City of Indianapolis, Corporation Counsel
[e-mail]
Blair Wheat
Roberts & Bishop
[e-mail]

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