PERRY v. CITY OF INDIANAPOLIS et al

Filing 48

ENTRY granting Defendants' 27 Motion to Dismiss Plaintiffs Amended Complaint. Plaintiff is granted leave to file a Second Amended Complaint. If she chooses to do so, the Second Amended Complaint must be filed within thirty (30) days of the date of this Entry, or this cause will be dismissed with prejudice. Signed by Judge Richard L. Young on 3/6/2012. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
)
)
)
vs.
)
CITY OF INDIANAPOLIS; GREGORY A. )
BALLARD, MAYOR; FRANK STRAUB, )
)
DIRECTOR OF PUBLIC SAFETY; and
PAUL CIESIELSKI, CHIEF OF POLICE, )
)
Defendants.
CANDI PERRY,
Plaintiff,

1:11-cv-172-RLY-TAB

ENTRY ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff, Candi Perry (“Plaintiff”), is a police officer for the Indianapolis
Metropolitan Police Department (“IMPD”). Plaintiff alleges the City of Indianapolis (the
“City”) and the individual defendants, Gregory A. Ballard, Mayor of Indianapolis
(“Mayor Ballard”); Frank Straub, Director of Public Safety (“Director Straub”); and Paul
Ciesielski, Chief of Police (“Chief Ciesielski”),1 violated her constitutional and state law
rights when she was investigated and subsequently indicted by a grand jury for acts of
official misconduct and filing a false crime report. Defendants now move to dismiss
Plaintiff’s claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the motion is GRANTED.

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Mayor Ballard, Director Straub, and Chief Ciesielski will be referenced collectively as
the “Individual Defendants”; the Individual Defendants and the IMPD will be referenced
collectively as “Defendants.”
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I.

Background
Plaintiff worked as a Spanish liaison for the IMPD. (Amended Complaint ¶ 9).

On June 26, 2009, IMPD detectives asked Plaintiff to investigate a murder that occurred
in the City’s Northwest District the day before. (Id. ¶¶ 9-10). Per the Plaintiff’s
investigation, IMPD located, identified, and arrested a suspect for the murder. (Id. ¶ 12).
On June 27, 2009, Plaintiff alleges she was subjected to a 10-hour interrogation, without
warning, in a locked interrogation room at the IMPD homicide office, where she was
harassed and threatened with an indictment. (Id. ¶ 13). The Amended Complaint does
not identify who interrogated her or explain what information led to the interrogation.
On October 23, 2009, Plaintiff was indicted for Official Misconduct and Filing a
False Crime Report. (Id. ¶ 14). Four days later, Plaintiff was served with a Notice of
Discharge Recommendation and Order of Suspension without pay. (Id. ¶ 16). Plaintiff
then surrendered herself to the Marion County Arrestee Processing Center and was
incarcerated for approximately eleven (11) hours. (Id. ¶ 17).
On October 28, 2009, Defendants informed the media that Plaintiff gave false
information to IMPD officers and impeded a criminal investigation. (Id. ¶ 18). Plaintiff
alleges that the Defendants knew the information was false, and knew, at the time the
statements were made, that there was no probable cause for arresting and prosecuting
Plaintiff. (Id. ¶ 19).
On November 25, 2009, the Marion County Prosecutor dismissed all criminal
charges against Plaintiff, and Plaintiff was ultimately reinstated to her former position
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with the IMPD. (Id. ¶¶ 21, 24).
II.

Dismissal Standard
Federal Rule of Civil Procedure 12(b)(6) permits the dismissal of a claim for

“failure to state a claim upon which relief may be granted.” See FED. R. CIV. P.
12(b)(6). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint, not the merits of the lawsuit. United States v. Clark County,
Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000) (citation omitted). In ruling on a motion
to dismiss, the court construes the allegations of the complaint in the light most favorable
to the plaintiff, and all well-pleaded, nonconclusory, factual allegations in the complaint
are accepted as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). A motion to
dismiss should be granted if the plaintiff fails to proffer “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1960
(2007). “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[,]” not when the plaintiff only raises a “sheer possibility that the
defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949.
III.

Discussion
Plaintiff’s Amended Complaint raises a number of claims against the Defendants,

apparently in both their individual and official capacity. In Count I, she brings a claim
under 42 U.S.C. § 1983 (“Section 1983”) for violations of her substantive and procedural
due process rights under the Fourteenth Amendment, and a violation of her right to equal
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protection under the Fourteenth Amendment, alleging that the Defendants “lev[ied] false
charges against her on the basis of her gender.” In Count II, she brings a Section 1983
claim under 42 U.S.C. § 1981 (“Section 1981”), alleging that the Defendants’ interfered
with her right to make and enforce her employment with the City. In Count III, she
brings a second Section 1983 claim under the equal protection clause of the Fourteenth
Amendment, alleging that similarly situated males “are not arrested and prosecuted sans
probable cause.” Lastly, in Counts IV-VIII, Plaintiff brings state law tort claims for
negligence and/or gross negligence, false imprisonment, false arrest, defamation,
infliction of mental and emotional distress, and malicious prosecution. The court will
begin its discussion with Plaintiff’s Section 1983 claims.
A.

Plaintiff’s Section 1983 Claims
1.

Individual Capacity Claims

“[Section] 1983 does not allow actions against individuals merely for their
supervisory role of others”; accordingly, “[i]ndividual liability for Section 1983
constitutional violations can only be based on a finding that the defendant[s] caused the
deprivation at issue.” Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)
(internal quotation marks and citations omitted). This, in turn, requires a showing that the
defendants were personally involved in the constitutional violation. Id. at 593-94.
In Plaintiff’s Amended Complaint, Plaintiff fails to allege that any of the
Individual Defendants were personally involved in the alleged constitutional violations
comprising Counts I-III. For example, she does not allege that the Individual Defendants
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were personally involved with her interrogation, indictment, arrest, suspension, or even
the alleged defamation. In fact, her allegations are conspicuously absent any indication of
specifically who did or said what and why. Moreover, two of the named defendants,
Director Straub and Chief Ciesielski, were not even involved in management of the IMPD
at the time of the events alleged in the Complaint. See http://www.indy.gov/eGov/Mayor/
pressroom/2009/Documents/Public%20Safety%20 Director.pdf (announcing appointment
of Director Straub); http://www.indy.gov/eGov/Mayor/pressroom/2010/Documents/
PR%20-%202%2025%2010%20ciesielski% 20release.pdf (announcing appointment of
Chief Ciesielski). Accordingly, Plaintiff’s Section 1983 claims against the Individual
Defendants in their individual capacity are dismissed.
2.

Official Capacity Claims

Claims against government officials in their official capacity are treated the same
as claims against the governmental unit for which they work. Grieveson v. Anderson, 538
F.3d 763, 771 (7th Cir. 2008) (citing Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765
(7th Cir. 2006)). Thus, any official capacity claims against the Individual Defendants –
all City employees – are coextensive with the claims against the City. Id. Accordingly,
Plaintiff’s official capacity claims against the Individual Defendants are dismissed as
duplicative.
3.

Monell Claims

A local governmental unit like the City is subject to suit under Section 1983.
Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). The City may not be liable
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for the acts of its employees, however, unless action pursuant to official municipal
custom, policy, or practice caused a constitutional tort. Id. at 691; McTigue v. City of
Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
Plaintiff’s Monell claims against the City are based upon: (1) her interrogation; (2)
her indictment and arrest; and (3) her suspension from employment and the
commencement of discharge proceedings. Plaintiff’s claims, however, fail to even
suggest that these events occurred as a result of the City’s custom, policy, or practice. On
this ground alone, Plaintiff’s Monell claims against the City fail to state a claim that is
plausible on its face.
B.

Plaintiff’s State Law Claims

Although the court dismissed Plaintiff’s federal claims, the court will address
Plaintiff’s supplemental state law claims since they arise out of the same set of facts as
her federal claims. 28 U.S.C. § 1367(a). The court will begin with Plaintiff’s state law
claims against the City.
1.

Claims Against the City

The Indiana Tort Claim Act protects a governmental entity if a loss results from
the “adoption and enforcement of or failure to adopt or enforce a law (including rules and
regulations), unless the act of enforcement constitutes false arrest or false imprisonment.”
Ind. Code § 34-13-3-3(8). Here, Plaintiff asserts state tort theories of negligence, false
arrest, false imprisonment, defamation, infliction of mental and emotional distress, and
malicious prosecution. Because these allegations are based on law enforcement action,
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the City is entitled to immunity on all of Plaintiff’s tort claims except false arrest, false
imprisonment, and defamation, as Plaintiff’s defamation claim could be construed not to
involve law enforcement action.
Turning now to Plaintiff’s remaining claims for false arrest and false
imprisonment, Plaintiff alleges that the “indictment was secured by selectively presenting
evidence that placed Plaintiff in a false light;” the prosecutor “dismissed all criminal
charges against [her] due to presentation of incomplete information;” and “no probable
cause existed to arrest or prosecute [her].” (Amended Complaint ¶¶ 15, 18-19, 21-22,
27). Plaintiff fails to support these conclusory allegations with any factual support. For
example, she does not explain what information led to her arrest and imprisonment, nor
explain what evidence the prosecutor presented to the grand jury that “placed [her] in a
false light.” (Id. ¶ 15). Indeed, Plaintiff’s allegations do not reflect that she ever
challenged the grand jury proceedings under Rule 6(e) of the Federal Rules of Criminal
Procedure. Thus, the grand jury’s decision to indict unequivocally reflects that there was
probable cause to arrest and prosecute her. Her conclusory allegation that she was
arrested and prosecuted without probable cause is simply not plausible.
Plaintiff’s final state law claim is that the Defendants committed defamation per
se2 by “publish[ing] false comments and statements to City media outlets that [Plaintiff]

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Under Indiana law, a communication is defamatory per se if it imputes, among other
things, criminal conduct. Northern Indiana Pub. Serv. Co. v. Dabagia, 721 N.E.2d 294, 305
(Ind. Ct. App. 1999).
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. . . gave false information to IMPD officers, and impeded a criminal investigation, when
she was guilty of none of these.” (Id. ¶ 18). The basis of Plaintiff’s claim is that, when
the statements were made, the Defendants “knew there was no probable cause for
arresting and prosecuting [her].” (Id. ¶ 19). As noted above, the grand jury’s indictment
forecloses her argument that there was no probable cause to arrest and prosecute her.
Thus, Defendants’ statements to the media regarding the charges brought against her were
not false when made. As truth is an absolute defense, Associates Corp. v. Smithley, 621
N.E.2d 1116, 1119 (Ind. Ct. App. 1993), Plaintiff’s claim for defamation is not plausible
on its face.
2.

Claims Against the Individual Defendants

One may not maintain an action against a governmental employee personally if
that employee was acting within the scope of his employment. IND. CODE § 34-13-3-5(a);
see also Miner v. Southwest Sch. Corp., 755 N.E.2d 1110, 1115 (Ind. Ct. App. 2001).
Rather, to bring a claim against an employee personally, the plaintiff “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(c). In addition,
“[t]he complaint must contain a reasonable factual basis supporting the allegations.” Id.
Plaintiff’s Amended Complaint does not allege that any of the Individual
Defendants acted outside the scope of employment. In addition, there is no allegation that
any of the Individual Defendants acted criminally, maliciously, willfully or wantonly, or
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in a manner calculated to benefit himself personally. See Ind. Code § 34-13-3-5(c).
Accordingly, because all claims relate to acts that occurred within the scope of the
Individual Defendants’ employment, all state law tort claims against the Individual
Defendants must be dismissed.
IV.

Conclusion
For the reasons set forth above, Plaintiff’s Amended Complaint fails to state a

claim upon which relief can be granted. Accordingly, Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint (Docket # 27) is GRANTED without prejudice. Plaintiff
is granted leave to file a Second Amended Complaint. If she chooses to do so, the
Second Amended Complaint must be filed within thirty (30) days of the date of this
Entry, or this cause will be dismissed with prejudice.
SO ORDERED this 6th

day of March 2012.
__________________________________

RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

Electronic Copies to:
Gregory P. Gadson
LEE COSSELL KUEHN & LOVE LLP
[e-mail]
Justin F. Roebel
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
[e-mail]

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Robert B. Turner
LEE COSSELL KUEHN & LOVE LLP
[e-mail]
Alexander Phillip Will
OFFICE OF CORPORATION COUNSEL
[e-mail]

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