WISE et al v. LAYTON et al
Filing
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ENTRY granting in part and denying in part Defendants' 8 Motion to Dismiss. Defendants' Motion to Dismiss is GRANTED with respect to Erika Wise's due process claim, and DENIED with respect to Daryl Wise's claim. Signed by Judge Richard L. Young on 4/17/2013. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DARYL WISE and
ERIKA WISE,
Plaintiffs,
vs.
Sheriff JOHN R. LAYTON in his
individual and official capacity,
Chief Deputy EVA TALLEY-SANDERS
in her individual capacity,
Lieutenant Colonel GARY TINGLE in his
individual capacity,
Defendants.
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1:12-cv-01169-RLY-DML
ENTRY ON DEFENDANTS’ MOTION TO DISMISS
Plaintiffs, Daryl Wise and Erika Wise, are former employees of the Marion
County Sheriff’s Office, who were terminated from their employment following a
suspension without pay. The reason for those suspensions was not provided to Plaintiffs
prior to their terminations. Plaintiffs filed the present lawsuit under 42 U.S.C. § 1983,
claiming that the Defendants violated their due process rights because they did not
receive either a pre-termination or post-termination hearing. For the reasons set forth
below, Defendants’ motion is GRANTED in part, and DENIED in part.
I.
Standard of Review
Rule 12(b)(6) authorizes the dismissal of claims for “failure to state a claim upon
which relief may be granted.” FED. R. CIV. P. 12(b)(6). To properly state a claim, a
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complaint must contain allegations that “‘state a claim to relief that is plausible on its
face.’” McCauley v. City of Chi., 671 F.3d 611, 615 (7th Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw reasonable inferences that the
defendant is liable for the misconduct alleged.” Id.
II.
Discussion
A.
Evidentiary Submissions
In deciding a motion to dismiss, a court may consider documents attached to the
complaint or attached to a defendant’s motion to dismiss, so long as they are referred to
in the complaint and are central to the plaintiff’s claims. Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (quoting Wright v. Assoc. Ins. Cos.,
Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)); McCready v. eBay, Inc., 453 F.3d 882, 891
(7th Cir. 2006). A court may also take judicial notice of an undisputed fact in a public
record. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-81
(7th Cir. 1997).
Here, Defendants attached a copy of the collective bargaining agreement between
the Sheriff of Marion County, Marion County, and the Indiana F.O.P. Labor Council, Inc.
and a copy of the Marion County Sheriff’s Department Civilian Employee Rules and
Regulations, to their motion to dismiss. These documents, however, are not referred to in
Plaintiffs’ Complaint. Moreover, judicial notice pertains only to adjudicative facts – i.e.,
“the facts of a particular case” – that are not subject to reasonable dispute because they
are: (1) generally known within the trial court’s territorial jurisdiction; or (2) can be
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accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” FED.R.EVID. 201(a) & (b); United States v. Arroyo, 310 Fed.Appx. 928,
929 (7th Cir. 2009) (defining adjudicative facts). The substance of these documents is
not something generally known within the court’s territorial jurisdiction, and the
interpretation of these documents is subject to reasonable dispute. Accordingly, the court
will not consider the collective bargaining agreement or the Civilian Employee Rules and
Regulations for purposes of this motion.
B.
Plaintiffs’ Due Process Claims
To prevail on their due process claims, Plaintiffs must establish that they had a
protected property right in continued employment. Greer v. Amesqua, 212 F.3d 358, 367
(2000); Kolman v. Sheahan, 31 F.3d 429, 434 (7th Cir. 1994). Property interests are not
created by the Constitution; instead, they are “established ‘by existing rules or
understandings that stem from an independent source such as state law – rules and
understandings that secure certain benefits and that support claims of entitlement to those
benefits.’” Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 589 (7th Cir. 1992)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
1.
Daryl Wise
Plaintiffs’ Complaint alleges that Daryl graduated at the top of his class at “a law
enforcement academy,” was sworn as a deputy for the Marion County Sheriff’s
Department, and served as a deputy at the Arrestee Processing Center. (Compl. ¶ 15).
The issue raised by Defendants’ motion is whether Daryl was a “special deputy” or a
merit deputy. This determination is important, because a merit deputy may only be
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terminated for cause following a hearing before the merit board. Id. § 36-8-10-11. A
merit deputy, therefore, does have a property right in his continued employment. See
Kivett v. Marion County Sheriff’s Dep’t, 2007 WL 906470, at * 11 (S.D. Ind. March 22,
2007) (noting that “special deputies were not merit deputies and could not claim the
property rights the Legislature had afforded merit deputies”). A “special deputy” does
not. IND. CODE § 36-8-10-10.6(a) (“A special deputy may be removed by the sheriff at
any time, without notice and without assigning any cause.”).
A special deputy is defined by statute as a person appointed by the sheriff “who is
employed by a governmental entity . . . or private employer, the nature of which
employment necessitates that the person have the powers of a law enforcement officer.”
Id. Because Marion County is within a consolidated city, only special deputies may serve
“the purpose of guarding prisoners in the county jail.” Id. § 36-8-10-10.6(f)(2).
Defendants’ argument requires the court to make the factual determination that
Daryl was a special deputy, as opposed to a merit deputy, because he works at the
Arrestee Processing Center. Yet, one who works at the Arrestee Processing Center is not
necessarily serving the purpose of “guarding prisoners in the county jail.” The Arrestee
Processing Center processes arrestees and is separate and distinct from the Marion
County Jail. Given Daryl’s allegations that he graduated from a law enforcement
academy, was sworn as a deputy, and served in that capacity at the Arrestee Processing
Center, the court cannot determine, as a matter of law, that he is a special deputy with no
property rights in his employment.
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Defendants contend that even if they violated Daryl’s property rights, they are
entitled to qualified immunity. Qualified immunity involves two issues: (1) whether the
defendant violated a constitutional right; and (2) whether the constitutional right was
clearly established. Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906, 914 (7th
Cir. 2011). With respect to the first factor, as noted above, an issue of fact remains.
With respect to the second factor, Defendants cite the court’s summary judgment entry in
Kivett, 2007 WL 906470. In that case, the court held that a corrections officer working in
the Marion County Jail did not have a property right in her position. Id. at **13, 15. In
the alternative, the court held that even if she did, the Sheriff would have been entitled to
qualified immunity because the Sheriff “could reasonably have believe [sic] that,
regardless of any contractual rights, a correctional officer was an at-will employee under
Indiana law.” Id. at *15.
The problem with Defendants’ argument is that the plaintiff in Kivett was a
corrections officer at the Marion County Jail, and as such, was a “special deputy.” As
noted above, the court does not have enough facts before it to determine whether Daryl
was a special deputy who was not entitled to due process prior to his suspension and
termination, or whether he was a merit employee entitled to due process prior to his
suspension and termination. The resolution of that factual matter renders any
determination on qualified immunity inappropriate. Alvarado v. Litscher, 267 F.3d 648,
651 (7th Cir. 2001) (“Because an immunity defense usually depends on the facts of the
case, dismissal at the pleadings stage is inappropriate.”). Accordingly, the court finds
that Daryl’s due process claim survives the present motion.
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2.
Erika Wise
Plaintiffs’ Complaint alleges that Erika worked in the Inmate Records Department,
and had served in that position since September 2009. (Id. ¶ 17). As with Daryl, the
issue is whether Erika had a property right in her continued employment in the
department.
In the absence of an employment contract for a definite term or other language
indicating that an employee may only be terminated for cause or by mutual agreement,
Indiana law presumes that employment is at-will and may be terminated at any time, with
or without cause. Bee Window, Inc. v. Turman, 716 N.E.2d 498, 500 (Ind. Ct. App.
1999) (citing Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997)).
Here, Erika does not allege she had an employment contract for a definite term with the
Marion County Sheriff’s Department, that she was a merit employee terminable only for
cause or by mutual agreement, or that she had an expectation of continued employment.
Moreover, in her Response, Erika does not specifically dispute Defendants’ assertion that
she is an at-will employee. Instead, she skirts the issue altogether by arguing1 that letters
from the Sheriff advising her of her suspension pending the outcome of an investigation
somehow created an expectation of continued employment. Erika’s interpretation of the
Sheriff’s letters is speculative at best, and is insufficient to state a claim. Accordingly,
the court finds that Erika does not have a protectable property interest in her employment,
and thus, her due process claim must be dismissed.
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Daryl raised this argument as well.
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III.
Conclusion
For the reasons set forth above, the court GRANTS in part and DENIES in part
Defendants’ Motion to Dismiss (Docket # 8). Defendants’ Motion to Dismiss is
GRANTED with respect to Erika Wise’s due process claim, and DENIED with respect
to Daryl Wise’s claim.
SO ORDERED this 17th day of April 2013.
_________________________________
__________________________________
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
Distributed Electronically to Registered Counsel of Record.
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