BURTON v. THE CITY OF FRANKLIN et al
Filing
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ORDER: For the foregoing reasons, the Court GRANTS Defendant Burton's and Defendant Mears' respective motions to dismiss. 20 ; [23.] Plaintiff had two opportunities to defend his Complainteither by amending it as a matter or fight pursuant to Federal Rule 15(a)(1)(B), or by responding to Defendants' motions. In light of Plaintiff's failure to do either, the Court further DISMISSES Plaintiff's Complaint WITH PREJUDICE as against Defendant Burton and Defendant Mears. The Court will enter final judgment with respect to these parties accordingly ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus-Stinson on 7/18/2011. (DWH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THOMAS W. BURTON,
Plaintiff,
vs.
THE CITY OF FRANKLIN,
MAYOR FRED L. PARIS, Individually ,
FRANKLIN POLICE CHIEF STAN LYNN,
Individually, BYRAN BURTON, Individually,
and RYAN MEARS, Individually,
Defendants.
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1:11-cv-00267-JMS-TAB
ORDER
Plaintiff Thomas Burton brings this complaint against the City of Franklin, Mayor Fred
L. Paris, Franklin Police Chief Stan Lynn, Bryan Burton, and Ryan Mears (collectively,
“Defendants”) pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants violated his rights
under the Fourth, Fifth and Fourteenth Amendments during his arrest and incarceration pending
trial. Presently before the Court are two motions to dismiss, independently filed by Defendant
Bryan Burton and Defendant Ryan Mears. [Dkt. 20; dkt. 23.]
I.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure impose only a notice-pleading requirement for
complaints. Fed. R. Civ. Pro. 8. Thus, “[s]pecific facts are not necessary; the [plaintiff] need
only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544
(2007) (alteration omitted)) (per curium). Nonetheless, “a complaint may be so sketchy that the
complaint does not provide the type of notice of the claim to which the defendant is entitled.”
1
Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)
(synthesizing Erickson and Twombly). In that circumstance, a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) is proper. A motion filed under that rule asks whether the
complaint “contain[s] 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 Twombly, 550
U.S. 544). For the purposes of that rule, the Court will ignore legally conclusory allegations. Id.
at 1949-50 (“Although for the purposes of a motion to dismiss we must take all of the factual
allegations in the complaint as true, we are not bound to accept as true a legal conclusion
couched as a factual allegation.” (quotation omitted)). The Court will, however, give the
complaint the benefit of reasonable inferences from all non-conclusory allegations. See id.
Although the Federal Rules do not require plaintiffs to plead legal theories in their
complaints, Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011), they do provide
that “[i]f doing so would promote clarity, each claim founded on a separate transaction or
occurrence . . . must be stated in a separate count.” Fed. R. Civ. P. 10(b). In the instant case,
Plaintiff’s Complaint lacks the clarity implied by Rule 10. It is nothing more than a recitation of
facts with several constitutional claims vaguely referenced at the end. [Dkt. 1 at ¶ 34 (“The
actions of Mayor Paris, Chief Lynn, [D]etective Burton, and [D]etective Mears toward[] Mr.
Burton constitute violations of his rights to due process of law, among other constitutional
protections, in contravention of the Fourth, Fifth and Fourteenth Amendments . . . .”).] The
Complaint gives neither the Court nor the Defendants any indication as to which alleged actions
correspond with which claims—particularly problematic in a case with multiple Defendants,
each allegedly responsible for different transactions or occurrences.
2
Furthermore, in addition to failing to amend his Complaint under Rule 15, Plaintiff
wholly failed to respond to Defendants’ respective motions to dismiss. It should go without
saying that the Seventh Circuit adheres to the longstanding rule that a litigant waives an
argument by failing to make it. See, e.g., Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480
(7th Cir. 2010). Courts apply that rule where a party fails to develop arguments related to a
discrete issue, as well as “where a litigant effectively abandons the litigation by not responding
to alleged deficiencies in a motion to dismiss.” Alito v. Town of Lisbon, --- F.3d ----, 2011 WL
2942360 (7th Cir. 2011); see also Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.2005) (noting that
a complaint may be compliant with the notice pleading requirements of Rule 8(a)(2), yet be
subject to dismissal where a plaintiff does not file a brief supporting the legal adequacy of the
complaint). In short, “[w]hen presented with a motion to dismiss, the non-moving party must
proffer some legal basis to support his cause of action.” County of McHenry v. Ins. Co. of the
West, 438 F.3d 813, 818 (7th Cir. 2006). For that reason, if a plaintiff does not respond, and the
Court is “given plausible reasons for dismissing a complaint, [it is] not going to do the plaintiff’s
research and try to discover whether there might be something to say against the defendants’
reasoning.” Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1042 (7th Cir. 1999).
Consistent with this longstanding authority, the Court interprets Plaintiff’s failure to
respond as waiver of his arguments with respect to Defendants’ charges concerning the
deficiency of his Complaint. Alito, 2011 WL 2942360 at *5. Where Defendants’ arguments are
plausible, then, the Court will accept them as true for the purposes of these motions.
II.
FACTS PLED IN THE COMPLAINT
Defendants Burton and Mears are detectives with the Franklin Police Department; on
February 21, 2009, at their request, a confidential informant wearing concealed audio/video
3
equipment entered the residence of Plaintiff Thomas Burton to make a controlled drug buy.
[Dkt. 1 at ¶ 11.] When she entered the residence, the informant was in possession of unopened
packages of Sudafed. [Id. at ¶ 12.] When she left Plaintiff’s residence at 6:00am the next day,
she did not have the Sudafed, and instead delivered two packages of methamphetamine to the
detectives. [Id. at ¶ 13.] Detectives Burton and Mears took possession of the methamphetamine,
but did not test the substance, weigh it, or deliver it to the property room of the police
department. [Id. at ¶ 14.]
The next day, Detectives Burton and Mears (along with members of the Johnson County
Prosecutor’s Office) again gave the informant Sudafed and dropped her off at Plaintiff’s
residence. [Id. at ¶ 16.] The informant entered the residence with Sudafed and left shortly
thereafter without it. [Id. at ¶ 17.]
“Based upon false information provided by detectives Burton and Mears, a search
warrant was issued on February 22, 2009 for [Plaintiff]’s residence.” [Id. at ¶ 17.]
At approximately 10:30 pm, Detectives Burton and Mears, Police Chief Lynn, and
members of the Johnson County Prosecutor’s Office executed a search warrant at Plaintiff’s
residence. [Id. at ¶ 18.] During the search, Plaintiff was arrested. [Id.]
Despite the fact that the substance with which Plaintiff was arrested had not been tested,
weighed, or placed in evidence, but was instead “taken to, and kept in, an apartment which was
controlled by Detectives Burton and Mears,” Plaintiff was charged with one count of
manufacturing and one count of delivery of more than three grams of methamphetamine, both
Class A Felonies. [Id. at ¶ 19.] Plaintiff was held in the Johnson County Jail on a bond of
$100,000.
[Id. at ¶ 20.]
Plaintiff was unable to bond out and, consequently, remained
incarcerated. [Id. at ¶ 22]
4
On March 3, 2009, the drugs were delivered to the police department property room, but
were not tested or weighed. [Id. at ¶ 21.] On November 12, 2009, the drugs were sent to the
Indiana State Police laboratory for testing and weighing for the first time. [Id. at ¶ 23.] The
State Police reported that the drugs had a total weight of 2.23 grams, .77 grams less than the
minimum threshold for an A Felony. [Id. at ¶ 24.]
On April 19, 2010, the prosecuting attorney reduced both charges against plaintiff to
Class B Felonies, due to the weight of the drugs. [Id. at ¶ 25.] Two months after the charges
were reduced to Class B Felonies, Plaintiff requested, and was granted, a bond reduction to
$20,000. [Id. at ¶ 25.] Plaintiff immediately posted bond and was released. [Id. at ¶26.]
In early 2010, Detective Burton became the subject of a police investigation related to
alleged illegal and inappropriate conduct, including official misconduct, drinking on duty, ghost
employment, providing alcohol to minors and fondling police informants, for which he has been
criminally informed and/or indicted. [Id. at ¶ 27.]
On May 13, 2010, the informant filed a civil lawsuit against Detectives Burton and Mears
alleging exhibitionism, fondling, battery with a sex toy, uninvited sexual touching and gender
based harassment, some of which occurred during the investigation of Plaintiff. [Id. at ¶ 29.] In
early 2011, on the state’s motion, charges against Plaintiff and approximately fifty (50) unrelated
defendants were dismissed. [Id. ¶ 30.]
III.
DISCUSSION
Plaintiff brings his claims under 28 U.S.C. § 1983. Section 1983 “is not itself a source of
substantive rights,” but merely provides “a method for vindicating federal rights elsewhere
conferred.” Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). The first step in any such claim
is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S.
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386, 394 (1989). In the instant case, Plaintiff alleges that Defendants’ conduct violated his rights
under the Fourth, Fifth and Fourteenth Amendments.
Section 1983 requires not only that a plaintiff (1) had a constitutionally protected right
and (2) that he was deprived of that right in violation of the Constitution, but also (3) that the
defendant intentionally caused that deprivation, and (4) the defendant acted under color of state
law. McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993). Accordingly,
liability under § 1983 can be based only on a finding that conduct causing a constitutional
deprivation occurred at the defendant’s direction or with his knowledge and consent. Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). In other words, the official sued “must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye….” Id.
A) Fourth Amendment Claim
Plaintiff first alleges that Defendants violated his rights under the Fourth Amendment.
The Fourth Amendment, as incorporated to the states under the Fourteenth Amendment, protects
citizens against unreasonable search and seizure. U.S. Const., Amend IV. Although Plaintiff
does not specify what search or seizure he is challenging specifically, and does not dispute that
the substance recovered from the informant on February 21, 2009 was methamphetamine, the
Court will address both the propriety of the search warrant as well as the validity of his arrest
following the search.
1. Wrongful Search
A search or seizure carried out on private premises is unreasonable, unless carried out
pursuant to a valid warrant (among other exceptions). Coolidge v. New Hampshire, 403 U.S.
443, 474 (1971). A warrant is valid under the Fourth Amendment only where it is based “upon
probable cause, supported by Oath or affirmation, and particularly describ[es] the place to be
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searched, and the persons or things to be seized.”
U.S. Const., Amend. IV.
Affidavits
supporting probable cause to issue a search warrant are presumed valid, unless the warrant
affiant lied or recklessly disregarded the truth because he “in fact entertained serious doubts as to
the truth of his allegations” or had “obvious reasons to doubt the veracity of the allegations.”
United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984).
Here, Plaintiff’s Complaint raises a single-line challenge to the validity of the search
warrant: “Based upon false information provided by detectives Burton and Mears, a search
warrant was issued on February 22, 2009 for Mr. Burton’s residence.” [Dkt. 1 at ¶ 15.] Plaintiff
does not go on, however, to present factual allegations regarding the nature of the “false
information” or why such information is in fact “false”.
The mere allegation that a search warrant was issued based on “false information” is
nothing more than the formulaic recitation of a cause of action—a conclusory allegation at best.
Brooks v. Ross, 578 F.3d 574, 582 (7th Cir. 2009). And while such a conclusory statement may
provide a framework of a complaint, the Court will not consider it to be true unless it is
supported by factual allegations that put the opposing party on notice as to what the plaintiff
seeks to prove. Iqbal, 129 S. Ct. at 1949.
Even under a strained reading of the Complaint, the only “false information” possibly
alleged is that police may have overstated the quantity of methamphetamine delivered to the
informant than actually existed; the accurate version of this “false” information, however, would
still be sufficient to establish probable cause and thus support a warrant. [See dkt. 1 at ¶ 19.]
Because Plaintiff’s Complaint provides no further factual allegations concerning the “false
information” allegedly underlying the search warrant, and because Plaintiff wholly failed to
respond to Defendants’ challenge to the inadequacy of the Complaint, Plaintiff has not provided
7
either Defendants or the Court with sufficient notice as to the nature of the “false information” to
which he refers. The Court therefore finds that Plaintiff’s Complaint does not state a claim that
his Fourth Amendment protections were violated based on a defective search warrant.
2. Wrongful Arrest/Seizure
For a plaintiff to show that he was arrested in violation of the Fourth Amendment, he
must show that he was arrested without probable cause. Gonzalez v. City of Elgin, 578 F.3d 526,
537 (7th Cir. 2009). In other words, probable cause is an absolute defense to a claim of false
arrest under the Fourth Amendment. United States v. Funches, 327 F.3d 582, 586 (7th Cir.
2003) (“[A]n arrest is reasonable under the Fourth Amendment so long as there is probable cause
to believe that some criminal offense has been or is being committed, even if it is not the crime
with which the officers initially charge the suspect.”)
An officer has probable cause to arrest if a reasonable person would believe, based on the
facts and circumstances known at the time, that some crime had been committed—even an
offense for which the plaintiff was not charged. McBride v. Grice, 576 F.3d 703, 707 (7th Cir.
2009); Jackson v. Parker, 627 F.3d 634, 638-39 (7th Cir. 2010). Probable cause does not require
evidence sufficient to support a conviction or even evidence demonstrating that it is more likely
than not that the suspect committed a crime. Funches, 327 F.3d at 586. Rather, it simply
requires a “common sense determination” that there is a probability or a substantial chance of
criminal activity. Id; see also Speigel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999).
Here, Plaintiff’s Complaint alleges that he was arrested after a confidential informant
entered his residence to make a controlled drug buy. [Dkt. 1 at ¶ 11.] When the informant
entered Plaintiff’s residence, she was in possession of unopened packages of Sudafed, an
ingredient commonly known to be used in the manufacture of methamphetamine, [id. at ¶ 12];
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when she left Plaintiff’s residence the next morning, she did not have the Sudafed but instead
delivered two packages of methamphetamine to Detectives Burton and Mears, [id. at ¶ 13]. The
next day, the Complaint alleges, the informant again went to Plaintiff’s residence with Sudafed
that had been provided to her, [id. at ¶ 16], and again left shortly thereafter without the Sudafed,
[id. at ¶17].
In light the facts known to the detectives and the circumstances under which they
received the substance from the confidential informant, the Court finds that there was probable
cause to believe that Plaintiff had provided a controlled substance—methamphetamine—to the
confidential informant in violation of the law. See I.C. § 35-48-4-1.1 (making it illegal to
possess, manufacture, or distribute methamphetamine); see also Heyen v.State, 936 N.E.2d 294,
300 (Ind. Ct. App. 2010) (holding that sufficient evidence supported conviction for dealing in
methamphetamine when police detective oversaw controlled drug buy between confidential
informant, gave the informant buy money, followed the informant to the defendant’s residence,
and once the informant returned to staging area, police detective searched informant’s vehicle
and found a plastic bag of methamphetamine).1 Likewise the fact that the informant left behind
the Sudafed on two successive days, also established probable cause that Plaintiff was
manufacturing methamphetamine. Because there was probable cause, the officers did not violate
Plaintiff’s Fourth Amendment rights by arresting him. The Court therefore finds that Plaintiff
fails to state a claim under the Fourth Amendment.
B) Fifth Amendment Claim
1
Even if the substance seized was ultimately shown not to be methamphetamine, the detectives
would have had probable cause to arrest Plaintiff. See Ortiz v. City of Chicago, 686 F.Supp.2d
782 (N.D. Ill 2010); see also Ind. Code § 35-48-4-4.5 (making it a crime to distribute fake drugs
in Indiana); Robinson v. Eager, 2010 WL 746730 at *2 (N.D. Ind. 2010).
9
Plaintiff further contends that Defendants’ conduct violated his rights under the Fifth
Amendment. The Fifth Amendment prevents individuals from being deprived of life, liberty, or
property without due process of law. West v. Phillips, 883, F.Supp. 308, 311 (S.D. Ind. 1994).
Also applied to the states through the Fourteenth Amendment, see, e.g., Walkdon v. Wilkins, 400
Fed.Appx. 75 (7th Cir. 2010), the Fifth Amendment more specifically protects an individual
from self-incrimination, double jeopardy, and unjust takings. United States v. Torres, 28 F.3d
1463 (7th Cir. 1994); United States v. Jackson, 983 F.2d 757, 768 (7th Cir. 1993).
Defendants are correct to point out that Plaintiff’s Complaint does not plead any facts to
suggest that he was subjected to double jeopardy, was compelled to give statements against his
interests, or had property seized from him for public use. To the extent that Plaintiff alleges a due
process violation, the Court will analyze it under the Fourteenth Amendment. Plaintiff’s Fifth
Amendment claim is therefore dismissed.
C) Fourteenth Amendment Claim
Finally, Plaintiff alleges that Defendants Detective Burton and Detective Mears violated
his Fourteenth Amendment rights.
The Fourteenth Amendment governs a pretrial detainee’s conditions of confinement after
the judicial determination of probable cause.2 See Lopez v. City of Chicago, 464 F.3d 711, 719
(7th Cir. 2006); Garcia v. Chicago, 24 F.3d 968, 971 n. 6 (7th Cir. 1994). By conferring both
substantive and procedural rights, Albright v. Oliver, 510 U.S. 266, 272 (1994), “the [Fourteenth
Amendment] prohibits any kind of punishment—not merely cruel and unusual punishment—of a
pretrial detainee.” Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996).
2
Plaintiff does not allege that he did not receive a Gerstein probable cause hearing.
10
Plaintiff’s Complaint alleges that Defendants violated his Fourteenth Amendment rights
by failing to test the methamphetamine in his possession at the time of his arrest, which caused
him to be overcharged for the crime he committed, which in turn caused him to be subjected to
an unreasonable bond.
1. Drug Testing
First, Plaintiff alleges that although he was arrested on February 22, 2009, the substance
in his possession when he was arrested was not tested until November 1.
The Seventh Circuit has “consistently held [that] once police officers have discovered
sufficient facts to establish probable cause, they have no constitutional obligation to conduct any
further investigation in the hopes of uncovering potentially exculpatory evidence.” Schertz v.
Waupaca County, 875 F.2d 578, 583 (7th Cir. 1989); Garcia, 24 F.3d at 970. The defendant
may, however, demand speedy testing of presumed controlled substances himself under his right
to investigate. Id. at n. 5.
Here, Plaintiff does not dispute that the substance he possessed when he was arrested was
methamphetamine. Nor does he plead any facts to suggest that he attempted to exercise his right
to investigate the methamphetamine. He merely claims that the Defendants’ delay in testing the
substance was unlawful.
Garcia conclusively establishes that as police officers, Defendants Burton and Mears had
no constitutional obligation to conduct the weighing or testing about which Plaintiff complains.
Plaintiff does not have a Fourteenth Amendment claim against the detectives simply by virtue of
the fact that the methamphetamine was not tested for seven months after his arrest. The Court
11
therefore finds that the alleged delay in testing does not give rise to a claim against Defendants
Burton or Mears under the Fourteenth Amendment.3
2. Charging Decision
Plaintiff next alleges that he was overcharged in violation of his Fourteenth Amendment
rights because, once the methamphetamine he possessed at the time of his arrest was found to
weigh less than 3 grams, the prosecutor reduced the charges to Class B felonies.
As an initial matter, a defendant does not have the constitutional right to have his charges
reduced or dismissed in the face of exculpatory evidence, let alone the right to have the charges
reduced quickly, where—as here—they were ultimately dismissed. Garcia, 24 F.3d at 971.
Plaintiff does not allege that the testing dispelled any basis for the charges upon which his
incarceration was based or that he was not, in fact, in possession of methamphetamine. Rather,
as was the case in Garcia, Plaintiff merely alleges that he was overcharged initially resulting in a
higher bond than he could make. See Albright, 114 S.Ct. 807, 813 (1994) (quoting Gerstein for
the proposition that the accused is not “entitled to judicial oversight or review of the decision to
prosecute”).
Even if the prosecutor’s decision to charge Plaintiff with an A felony gave rise to a
constitutional claim, however, Plaintiff’s Complaint would still fail to state a claim against
Defendants Burton and Mears. Plaintiff has not pled any facts to suggest that Defendants Burton
or Mears was responsible, or even involved, with the charging decision, which is squarely within
the purview of the prosecutor; certainly, his Complaint does not purport to show that either was
“‘personally responsible for the constitutional deprivation.’” J.H. ex rel. Higgin v. Johnson, 346
F.3d 788, 793 (7th Cir. 2003).
3
If this claim were analyzed under the Fourth Amendment, it would fail for the same reasons.
See Garcia, 24 F.3d at 970.
12
As such, any claim predicated on unfair charging determinations is dismissed as against
Defendants Burton and Mears.
3. Excessive Bail
Plaintiff further alleges that Defendants violated his Fourteenth Amendment rights by
proximately causing the state court to issue an unfair bond.4 Specifically, Plaintiff alleges that
the state court, which reduced Plaintiff’s bond to $20,000 several months after the prosecuting
attorney reduced Plaintiff’s charges to a B Felony, initially set Plaintiff’s bond at $100,000
(consistent with an A felony). [Dkt. 1 at ¶ 25.] Only after the bond was reduced from $100,000,
Plaintiff alleges, could he bond out of jail.
A plaintiff has a constitutional right to be free from excessive bail. Stack v. Boyle, 342
U.S. 1, 4-5 (1951). But even where that right has been violated, a plaintiff attempting to
vindicate that right under § 1983 must do so against the appropriate defendant.
Again, Plaintiff’s Complaint does not plead any facts to suggest that either Defendant
Burton or Defendant Mears was responsible for setting Plaintiff’s bond, adjusting Plaintiff’s
bond, or even detaining Plaintiff unlawfully in light of this bond. As such, even if the Court
assumes without deciding that Plaintiff’s Complaint states a claim for excessive bail, neither
Detective Burton nor Detective Mears is the appropriate party against whom to bring this claim.
The Court therefore dismisses Plaintiff’s Fourteenth Amendment claim for excessive bail as
against these Defendants.
4. Procedural Due Process
4
Excessive bail, although expressly prohibited by the Eighth Amendment, is applicable to the
states through the Fourteenth Amendment. See Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979).
13
Defendant characterizes Plaintiff’s Complaint as possibly encompassing false arrest, false
imprisonment, and malicious prosecution claims. [Dkt. 24 at 12.] Having failed to respond to
Defendants’ motions to dismiss, Plaintiff does not dispute that characterization. Although
Plaintiff does not allege that he was denied a probable cause hearing, the Court also reads
Plaintiff’s Complaint to contain a claim for procedural due process.
The requirements of procedural and substantive due process apply to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty and property. Board
of Education v. Loudermill, 470 U.S. 531 (1985). Procedural due process claims should be
dismissed, however, if adequate post-deprivation remedies exist under state law. Parratt v.
Taylor, 451 U.S. 527 (1981). In other words, when state law provides tort remedies for the
matters that form the basis for a plaintiff’s claim that he was deprived of liberty without due
process of the law, the plaintiff has been provided with procedure to redress his alleged harm.
Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir. 1984).
Here, Indiana law recognizes state-law causes of action for false imprisonment, false
arrest, and malicious prosecution. See Delk v. Board of Com’rs of Delaware County, 503 N.E.2d
436, 439 (Ind. Ct. App. 1987) (Indiana recognizes false imprisonment actions); Row v. Holt, 834
N.E.2d 1074, 1089 (Ind. Ct. App. 2005) (false arrest and false imprisonment are synonymous
and Indiana recognizes false imprisonment actions); Brown v. Robertson, 92 N.E.2d 856, 857
(Ind. Ct. App. 1950) (Indiana recognizes malicious prosecution claims).
Although Plaintiff has not explicitly asserted any state law tort claims, because Indiana
recognizes state law tort remedies for false arrest, false imprisonment and malicious prosecution,
Plaintiff’s state-law remedies preclude him from asserting a procedural due process claim.
III.
CONCLUSION
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For the foregoing reasons, the Court GRANTS Defendant Burton’s and Defendant
Mears’ respective motions to dismiss. [Dkt. 20; dkt. 23.] Plaintiff had two opportunities to
defend his Complaint—either by amending it as a matter or fight pursuant to Federal Rule
15(a)(1)(B), or by responding to Defendants’ motions. In light of Plaintiff’s failure to do either,
the Court further DISMISSES Plaintiff’s Complaint WITH PREJUDICE as against Defendant
Burton and Defendant Mears. The Court will enter final judgment with respect to these parties
accordingly.
_______________________________
07/18/2011
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution via ECF only:
Brandi A. Gibson
COOTS HENKE & WHEELER, P.C.
bgibson@chwlaw.com
Matthew L. Hinkle
COOTS HENKE & WHEELER
mhinkle@chwlaw.com
Craig Morris McKee
WILKINSON GOELLER MODESITT WILKINSON & DRUMMY
cmmckee@wilkinsonlaw.com
Peter H. Rosenthal
LAW OFFICE OF PETER H. ROSENTHAL
atyrosenthal@aol.com
Ronald J. Semler
STEPHENSON MOROW & SEMLER
rsemler@stephlaw.com
Blake N. Shelby
15
COOTS HENKE & WHEELER, P.C.
bshelby@chwlaw.com
James S. Stephenson
STEPHENSON MOROW & SEMLER
jstephenson@stephlaw.com
16
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