RIHM et al v. HANCOCK COUNTY PUBLIC LIBRARY et al

Filing 44

ENTRY granting in part and denying in part Defendants' 16 Motion to Dismiss for Failure to State a Claim. Plaintiffs' IIED claims against the Library survive as well as Rowell's First Amendment claim against Osborne. Allconstitutional claims against the Library and Osborne in her official capacity are dismissed. In addition, all remaining claims against Osborne in her individual capacity are dismissed. Signed by Judge Richard L. Young on 6/20/2013. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY RIHM and RECHO ROWELL,
Plaintiffs,
vs.
HANCOCK COUNTY PUBLIC
LIBRARY, et al.
Defendants.

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1:12-cv-01474-RLY-TAB

ENTRY ON DEFENDANTS’ MOTION TO DISMISS
Plaintiffs, Mary Rihm and Recho Rowell, filed this civil action against the
Hancock County Public Library (“Library”), and Dianne Osborne and Jean Medley,
individually and in their official capacities, among others, alleging violations of their
constitutional and state rights. The Library and Osborne (together, “Defendants”), filed a
motion to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For
the reasons set forth below, the court now GRANTS IN PART and DENIES IN PART
the motion.
I.

Background
The following facts are taken from Plaintiffs’ Complaint and presumed to be true

for purposes of this motion. Rihm is a Caucasian female who began employment at the
Library in August 2008. (Compl. ¶¶ 10-11). Rowell is an African-American male who

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Medley is no longer employed by the Library and thus is not represented by the same counsel
as the Library and Osborne. Medley, therefore, is not a party to this motion.
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has been in an intimate relationship with Rihm since prior to Rihm’s employment at the
Library. (Id. at ¶¶ 10-11). Rihm and Rowell have two children together. (Id. at ¶ 11).
The Library employed Medley as Circulation Manager and Osborne as Director of
the Library. (Id. at ¶ 5). Medley was Rihm’s immediate supervisor. (Id. at ¶ 12).
Medley, an African-American female, was married to an African-American male. (Id.).
Medley and Rihm had a friendly relationship in both work and social settings prior to
December 2008. (Id. at ¶ 13).
In December 2008, Medley became aware of Rihm’s and Rowell’s intimate
relationship, which led Medley to criticize Rihm’s job performance for the first time. (Id.
at ¶¶ 14-15). For example, in the presence of Library staff, Medley verbally attacked
Rihm regarding Rihm’s first pregnancy and referred to Rihm as “mentally slow” and
“need[ing] help.” (Id. at ¶¶ 18-19). Similarly, Medley unfairly criticized Rihm for work
performance issues by: (1) prohibiting Rihm from using the telephone for personal calls
despite other employees not being limited; (2) reprimanding Rihm for the “way [she]
sound[ed] on the telephone”; and (3) reprimanding Rihm for “discussing [her] personal
life” at work even though other employees were not similarly criticized and they had
initiated the discussions. (Id. at ¶¶ 21-23). In addition, Rihm alleges that Medley
condoned and abetted additional discriminatory behavior toward Rihm by Senior
Librarians Casey Scholl and Amanda Roeger. (Id. at ¶ 20). Despite Medley’s repeated
complaints about Rihm’s work performance, Rihm never received any documentation of
her alleged performance deficiencies until October 2010. (Id. at ¶ 24). In contrast, Rihm
complained of this discriminatory treatment throughout her employment. (Id. at ¶ 25).
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Moreover, Rihm alleges that Medley criticized her for her relationship with
Rowell, stating she disapproved because “white women should not date African
American men.” (Id. at ¶ 16). To that end, Medley would “roll her eyes and express her
disapproval through body language” whenever she saw Rihm speaking with Rowell at the
Library. (Id. at ¶ 17).
On October 9, 2010, Rowell visited the Library on personal business. (Id. at ¶ 27).
Scholl and Roeger observed Rowell in the Library lobby, but Rowell did not
communicate with them in any way. (Id. at ¶¶ 29-30). The next day, Medley called
Rihm into her office to inform Rihm that Rowell had allegedly “intimidated” other,
unidentified individuals. (Id. at ¶ 31). As a result, Medley informed Rihm that Rowell
was no longer allowed to enter the Library when Rihm was working. (Id.). Other
employees did not have any family visitor restrictions. (Id. at ¶ 32).
On October 15, 2010, Osborne sent several unnamed police officers to deliver
written notice to Rowell, at his home address, that his rights to be on the premises of the
Library were terminated, effective immediately. (Id. at ¶ 35). This ban stemmed from
allegedly being “disruptive and intimidating to employees and operations of [the
Library].” (Id.).
On October 26, 2010, the Library suspended Rihm without pay for three days for
engaging in an allegedly disrespectful conversation with Osborne along with “numerous
complaints by other Circulation staff of a hostile work environment caused by [Rowell’s]
disrespect and treatment of other staff.” (Id. at ¶ 39). On November 11, 2010, the

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Library terminated Rihm for allegedly “failing to follow orders and unprofessional
behavior.” (Id. at ¶ 40).
Based on the above facts, Plaintiffs brought various constitutional claims under 42
U.S.C. § 1983 (“Section 1983”), along with claims for intentional infliction of emotional
distress (“IIED”), against the Library, and Osborne and Medley, in their official and
individual capacities. (Compl. Counts One, Two, Five, and Six). The Library and
Osborne now move to dismiss all claims against them.
II.

Standard
Federal Rule of Civil Procedure 12(b)(6) permits the district court to dismiss a

complaint for failure to state a claim for which relief can be granted. The purpose of the
motion is to test the legal sufficiency of the complaint, not to resolve the case on the
merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citation
omitted). To survive a motion to dismiss, a complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In deciding this motion, the court must “construe the complaint in the light
most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and
drawing all possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008) (citations omitted).
A complaint need only provide “a short and plain statement of the claim” showing
that the plaintiff is entitled to relief and be sufficient to provide the defendant with fair
notice of the claim and its basis. Id. Although “detailed factual allegations” are not
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required, the plaintiff must allege facts that raise the possibility of relief above the
“speculative level.” Twombly, 550 U.S. at 555; see also Swanson v. Citibank, N.A., 614
F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subject
matter of the case to present a story that holds together.”). As a result, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
III.

Discussion
A.

Constitutional Claims

Plaintiffs allege a litany of constitutional claims against Defendants, including
claims for freedom of association, due process, and equal protection, as guaranteed by the
First, Fifth, and Fourteenth Amendments.
1. Claims Against Osborne in her Official Capacity
Plaintiffs’ complaint alleges a deprivation of their constitutional rights by the
“Library Defendants.” The “Library Defendants” include the Library; Osborne,
individually, and in her official capacity as Director of the Library; and Medley,
individually, and in her official capacity as Circulation Manager of the Library.
The “official capacity” claims are, as Defendants have argued, redundant, as a suit
against a public employee in her official capacity is equivalent to a suit against the
governmental entity that she serves. Sakelaris v. Danikolas, No. 2:05-cv-158, 2007 WL
917376, at *3 (N.D. Ind. Mar. 23, 2007); see also Collins v. Meike, 52 F. App’x 835, 836
(7th Cir. 2002) (upholding dismissal of school’s principal in her official capacity as
“redundant” because the School Board was also a party); Bryson v. Chicago State Univ.,
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96 F.3d 912, 917 (7th Cir. 1996) (dismissing claim against provost in his official capacity
because it was identical to the action against the university, which was the proper
defendant); Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811, 816 (S.D. Ind. 1998)
aff’d, 185 F.3d 693 (7th Cir. 1999) (dismissing chief of police in his official capacity
because the only viable defendant in the action was the city). Since the Library is a
named Defendant here, a suit against Osborne in her official capacity is redundant, and
the court accordingly dismisses the claims against Osborne in her official capacity.2
2. Claims Against Library
Next, the court turns to Plaintiffs’ constitutional claims against the Library.
Section 1983 does not allow for municipal liability against entities such as the Library
based only on a theory of respondeat superior. Monell v. Dep’t of Social Servs., 436 U.S.
658, 691 (1978); Ind. Code § 36-12-2-2(a) (“A Class 1 public library is a municipal
corporation . . . .”). Instead, “it is when the execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the government as an entity is
responsible under [Section] 1983.” Id. at 694. Thus, to establish liability against a
municipality under Section 1983, a plaintiff must allege that his injury was caused by an
official policy, custom, or practice. Id. A policy, custom, or practice may be
demonstrated by:
(1) an express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not authorized by
2

Though claims against Medley in her official capacity would meet this same result, the court
will only rule on the issues before the court.
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written law or express municipal policy, is so permanent and well settled as
to constitute a custom or usage with the force of law; or (3) an allegation
that the constitutional injury was caused by a person with final
policymaking authority.
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995) (internal quotations and
citation omitted).
Here, Plaintiffs do not argue – other than boilerplate, conclusory allegations – that
the Library had an express policy that led to a violation of Rihm’s or Rowell’s rights.
(See Compl. ¶¶ 43, 48). Nor do they allege that a widespread practice or pervasive
pattern of such conduct existed. Instead, Plaintiffs argue that Osborne and Medley had
final policymaking authority with respect to Rihm’s discipline, suspension, and
termination as well as Rowell’s denial of access to the Library. Particularly, Plaintiffs
allege that “Medley and Osborne were supervisory and/or managerial employees of the
Library, exercising final decision-making authority . . . and were exercising that authority
conferred upon them by the Library.” (Compl. ¶¶ 43, 48).
The status as a policymaker for Section 1983 purposes is conferred by state or
local law. Kujawski v. Board of Com’rs of Bartholomew County, Ind., 183 F.3d 734, 737
(7th Cir. 1999). In particular, courts should “identify those officials with final
policymaking authority by reviewing the relevant legal materials, including state and
local positive law, as well as custom or usage having the force of law.” Killinger v.
Johnson, 389 F.3d 765, 771-72 (7th Cir. 2004) (citation omitted). Here, under Indiana
law, the Library Board has final policymaking authority. See Ind. Code 36-12-3-3 (“The
library board shall govern and set policy for all the affairs of the public library”).
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Plaintiffs fail to direct the court to any Indiana statute or other ordinance suggesting that
either Osborne or Medley, by virtue of their respective positions, had the authority to
establish official policy on behalf of the Library.
Plaintiffs nevertheless contend that Osborne and Medley had final policymaking
authority for the following reasons: (1) they committed the unlawful acts that are the
subject of the Complaint; (2) their decisions were not subject to a higher authority; and
(3) their actions “may fairly be said to represent official policy.” In the absence of an
Indiana statute conferring such authority to Osborne, as Library Director, and Medley, as
Circulation Manager, Osborne and Medley may be deemed a final policymaker only if
the Library Board either delegated final policymaking authority to them, or ratified their
decisions. Kujawski, 183 F.3d at 737 (stating “[f]inal policymaking authority may be
granted directly by statute or delegated or ratified by an official having policymaking
authority”).
With respect to Plaintiffs’ first contention, the fact that Osborne and Medley are
alleged to have committed the unlawful acts that are the subject of this lawsuit does not
confer final policymaking authority to them for purposes of Section 1983 liability.
“Misbehaving employees are responsible for their own conduct, [and] units of local
government are responsible only for their policies rather than misconduct by their
workers.” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (citation omitted).
The Library cannot be sued on the basis of respondeat superior, so this argument fails.
With respect to Plaintiffs’ second contention, the decisions allegedly not subject to
higher authority are Osborne’s decision to fire Rihm and ban Rowell. This argument is
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misplaced as “the mere unreviewed discretion to make hiring and firing decisions does
not amount to policymaking authority. There must be a delegation of authority to set
policy for hiring and firing, not a delegation of only the final authority to hire and fire.”
Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 676 (7th Cir. 2009) (citing
Kujawski, 183 F.3d at 739); see also Venters v. City of Delphi, 123 F.3d 956, 966 (7th
Cir. 1997) (finding chief of police’s power to “hire, fire, demote, and otherwise manage”
his department was distinct from the power to make policy for the city).
Here, Plaintiffs fail to allege that the Library Board delegated such policymaking
authority to Osborne. Although the Complaint states that Medley and Osborne “were
exercising that authority conferred upon them by the Library,” this is a mere legal
conclusion, devoid of any factual support; as such, the court is not required to accept it.
See McTigue, 60 F.3d at 382-83 (“Boilerplate allegations of a municipal policy, entirely
lacking in any factual support that a [municipal] policy does exist, are insufficient. . . .
The absence of any facts at all to support plaintiff’s claim renders the allegations mere
legal conclusions of section 1983 liability devoid of any well-pleaded facts”) (citation
omitted).
Moreover, with respect to Osborne’s decision to ban Rowell, the “[a]uthority to
make a final decision need not imply authority to establish rules.” Auriemma v. Rice, 957
F.2d 397, 401 (7th Cir. 1992). Indeed, “that a particular agent is the apex of a
bureaucracy makes the decision ‘final’ but does not forge a link between ‘finality’ and
‘policy.’” Id. at 400. Put another way,

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The fact that a particular official – even a policymaking official – has
discretion in the exercise of particular functions does not, without more,
give rise to municipal liability based on an exercise of that discretion . . .
The official must also be responsible for establishing final government
policy respecting such activity before the municipality can be held liable.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986). To that end, even if
Osborne had unfettered power to ban citizens from the Library, this alone is distinct from
the authority to make policy for the Library. Thus, the fact that Osborne’s decisions were
not reviewed by a higher authority does not result in municipal liability for the Library.
Lastly, with respect to Plaintiffs’ third contention, a difference exists between
implementing pre-existing rules and possessing the responsibility for making law and
setting policy. Rasche v. Village of Beecher, 336 F.3d 588, 599 (7th Cir. 2003) (quoting
Auriemma, 957 F.2d at 401). Indeed, the mere authority to implement pre-existing rules
is not the authority to set policy. Killinger, 389 F.3d at 771. Again, Plaintiffs fail to
allege that Osborne possessed the responsibility to make law or set policy. In fact,
Plaintiffs’ allegations infer, if anything, that existing Library policies were enforced in an
unfair manner against them, not that new policies were created. Thus, Osborne’s and
Medley’s actions cannot be considered as setting official policy for the Library.
Plaintiffs have not provided any basis to conclude, beyond their own bare
allegations, that either Osborne (as Director) or Medley (as Circulation Manager) had
final policymaking authority within the meaning of Monell and its progeny. 3

3

Plaintiffs argue that Osborne ratified Medley’s actions. Even assuming Osborne did ratify
Medley’s actions, this is inconsequential since Osborne herself is not deemed a final policymaker
for purposes of Monell liability. Nor have Plaintiffs alleged any alternative basis for Medley
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Accordingly, Plaintiffs’ constitutional claims against the Library (Counts One and Two)
are dismissed.
3. Claims against Osborne in her Individual Capacity
Plaintiffs allege that Osborne in her individual capacity “deprived and/or
conspired to deprive Rihm of her federally protected rights of freedom of association and
equal protection, as guaranteed by the First and Fourteenth Amendments to the United
States Constitution[.]” (Compl. ¶ 42). Similarly, Plaintiffs allege that Osborne also
“deprived and/or conspired to deprive Rowell of his federally protected rights of freedom
of association, equal protection, and due process of law as guaranteed by the First, Fifth
and Fourteenth Amendments to the United States Constitution[.]” (Id. at ¶ 47). The
court now turns to these claims.
a. Equal Protection
To establish a prima facie case of discrimination under the equal protection clause,
a plaintiff must show that: (1) he/she is a member of a protected class; (2) he/she is
otherwise similarly situated to members of the unprotected class; and (3) he/she was
treated differently from members of the unprotected class. Brown v. Budz, 398 F.3d 904,
916 (7th Cir. 2005). Such claims also require proof of discriminatory intent. Greer v.
Amesqua, 212 F.3d 358, 370 (7th Cir. 2000).

having final policymaking authority; thus, Medley is also not deemed a final policymaker for
purposes of Monell liability.
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i. Rihm
Plaintiffs have extensively documented instances of discriminatory animus on the
part of Medley toward Rihm; however, allegations relating to Osborne’s behavior are
scarce. In fact, only one factual allegation concerns Osborne’s interaction with Rihm.
This relates to Rihm being suspended for three days without pay “for engaging in an
allegedly ‘disrespectful’ conversation with Osborne, and for ‘numerous complaints by
other Circulation staff of a hostile work environment caused by [Rowell’s] disrespect and
treatment of other staff.’” (Compl. ¶ 39). Rihm does not allege that other individuals
outside her protected class were treated differently by Osborne. That alone is fatal to her
claim.4
Moreover, Plaintiffs fail to allege facts showing Osborne had any discriminatory
intent. Instead, Rihm’s claim is built on a litany of inferences which were not alleged in
the complaint and which, according to Rihm, reflect that Osborne ratified Medley’s
behavior.5 Particularly, Rihm argues that it is “reasonable to infer that the ‘other

4

The court assumes for purposes of this motion that Rihm is a member of a protected class even
though she is Caucasian. (Compl. ¶ 10). Although equal protection claims are most typically
brought by members of disfavored classes of citizens or by citizens attempting to enforce
fundamental rights, “some courts have recognized that a plaintiff may state a discrimination
claim under the equal protection clause of the Fourteenth Amendment or Title VII of the Civil
Rights Act that is based on aiding and associating with people of a protected class.” Barlass v.
Carpenter, No. 10-cv-454, 2010 WL 3521589, at *5 (W.D. Wis. Sept. 7, 2010) (citing cases
from the Second, Sixth, and Eleventh Circuits). The Seventh Circuit has not addressed whether
discriminating against a person for association with a person of a protected class constitutes race
discrimination, but for the purposes of this motion the court will assume Rihm is a member of a
protected class because of the early stage of this case and because this issue was not addressed
by the parties. See id.
5

Although the court may not consider matters outside the pleadings when deciding a motion to
dismiss, it may consider any additional allegations in Plaintiffs’ brief so long as those allegations
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employees’ whose discriminatory behavior Medley is alleged to have ‘condoned and
abetter [sic]’ were either or [sic] a different race than Rihm, or were not involved in
interracial relationships, or both.” Plaintiffs continue to surmise that it is “reasonable to
infer that Rihm’s complaints were made to Osborne,” since it is unlikely Rihm would
have complained to Medley regarding the actions by Medley. And building on that
inference, Plaintiffs argue that it is reasonable to conclude that Osborne did nothing about
Rihm’s complaints since they continued and ultimately led to her termination. Based
upon these unsupported inferences, Plaintiffs argue that a jury could conclude that
Osborne ratified Medley’s and other employees’ behavior.
Just as the Complaint focuses almost centrally on Medley’s actions, so too does
Plaintiffs’ argument. Plaintiffs present no factual basis for Osborne’s actions being
discriminatory, but instead rely solely on speculation and conjecture. Indeed, the only
allegations concerning Osborne’s actions – her suspension and subsequent termination of
Rihm – were allegedly based on inappropriate and unprofessional conduct. In other
words, Rihm has not even alleged that Osborne’s actions stemmed from a discriminatory
motive. This house of inferences cannot stand. See Angie’s List, Inc. v. Ameritech Pub.,
Inc., No. 1:07-cv-1630, 2010 WL 2521722, at *2 n.2 (S.D. Ind. June 15, 2010) (“The
allegations of a complaint must contain enough factual matter to plausibly suggest that
each element of the claimed cause of action actually exists, not that the element’s
are consistent with the complaint. Lang v. TCF Nat. Bank, 249 F. App’x 464, 465 (7th Cir.
2007); Help At Home, Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 752-53 (7th Cir. 2001). That
said, “naked assertions devoid of further factual enhancement” will not suffice to successfully set
forth a claim. Iqbal, 556 U.S. at 678.
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existence is possible, conceivable, or that facts exist that are merely consistent with the
element’s existence.”). Rihm’s equal protection claim against Osborne, therefore, must
be dismissed.
ii. Rowell
Rowell also brings an equal protection claim against Osborne. Rowell, an
African-American, meets the first element of the equal protection analysis as a member
of a protected class. Again, however, Rowell does not sufficiently plead that Osborne
treated Rowell differently from members of an unprotected class or had a discriminatory
motive. The only factual allegations as to Osborne’s interaction with Rowell concern
Osborne sending police officers to Rowell’s home to deliver a notice which terminated
Rowell’s rights from visiting the Library due to “allegedly, ‘disruptive and intimidating
employees and operations of [the Library]’.” (Compl. ¶ 35). Again, neither allegations
of Osborne’s discriminatory animus towards Rowell exist nor any comparisons to
members of an unprotected class who were treated differently by Osborne. Instead, he
relies solely on the possibility that this animus existed and discriminatory treatment
resulted. Rowell’s allegations are insufficient to withstand a motion to dismiss. See
Martin v. Indiana, No. 1:12-cv-69, 2013 WL 1332165, at *5 (N.D. Ind. Mar. 29, 2013)
(stating “a complaint which makes no factual allegations against a defendant does not
give that defendant fair notice of what the claim is; neither does it suggest any plausible
basis for granting relief”). Consequently, his equal protection claim fails.

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b. Freedom of Association
Plaintiffs allege that Osborne has deprived them of their federally protected rights
of freedom of association under the First Amendment by disciplining and terminating
Rihm due to her relationship with Rowell, and for the same reason banning Rowell from
the Library premises. (Compl. ¶¶ 42, 47).
As an initial matter, the court must first determine whether Plaintiffs’ freedom of
association claims fall under the First Amendment, as Plaintiffs argue, or instead fall
under the Fourteenth Amendment’s Due Process Clause, as Osborne maintains. The
Supreme Court has recognized the constitutional right to enter into and carry on certain
intimate relationships. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984). The Court further
discussed how cases concerning this “freedom of association” have taken “two distinct
senses.” Id. at 617. In one category of cases, the Court “recognized a right to associate
for the purpose of engaging in those activities protected by the First Amendment –
speech, assembly, petition for the redress of grievances, and the exercise of religion.” Id.
at 618. In the other line of cases, the Court determined that “choices to enter into and
maintain certain intimate human relationships must be secured against undue intrusion by
the State because of the role of such relationships in safeguarding the individual freedom
that is central to our constitutional scheme.” Id. at 617-18. As a result, such intimate
human relationships are protected as a fundamental element of personal liberty. Id. at
618. The Seventh Circuit later interpreted this protection as falling “under the Due
Process Clause.” Christensen v. Cnty. of Boone, IL, 483 F.3d 454, 463 (7th Cir. 2007).

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Plaintiffs have not alleged that their relationship was entered into for the purpose
of “speech, assembly, petition for the redress of grievances, [or] the exercise of religion.”
Nevertheless, they maintain their freedom of association claims should be evaluated
under the First Amendment despite the Seventh Circuit’s explicit finding that long-term,
unmarried relationships should be evaluated under the Due Process Clause as a liberty
interest. Christensen, 483 F.3d at 463.
First, Plaintiffs argue that the additional language in Christensen concerning the
Due Process Clause is mere dicta. Though the Roberts Court did not mention the Due
Process Clause in its opinion, the Seventh Circuit interpreted the phrase “protection as a
fundamental element of personal liberty” as requiring analysis under the Due Process
Clause. See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200
(1989) (“In the substantive due process analysis, it is the State’s affirmative act of
restraining the individual’s freedom to act on his own behalf—through incarceration,
institutionalization, or other similar restraint of personal liberty—which is the
‘deprivation of liberty’ triggering the protections of the Due Process Clause . . . .”).
Thus, the Seventh Circuit did not alter Roberts but merely interpreted its analysis.
Indeed, district courts in the Seventh Circuit have evaluated claims similar to the ones at
issue here under the Due Process Clause. See e.g., Wiswell v. Abbott, No. 08-3093, 2008
WL 5100471, at *1 (C.D. Ill. Dec. 1, 2008) (finding actions by Assistant States Attorney
to interfere with plaintiff’s intimate association with her boyfriend was a liberty interest
protected by the Fourteenth Amendment due process claims); Null v. Gardner, No. 09cv-1065, 2009 WL 2928144, at *3 (C.D. Ill. Sept. 9, 2009) (finding claim that plaintiff
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fired from position as deputy clerk because of intimate relationship with man is analyzed
as a liberty interest under the Due Process Clause).
Next, Plaintiffs attempt to distinguish the Seventh Circuit’s decision on the
grounds that plaintiffs there brought a freedom of association claim under the Due
Process Clause in contrast to Plaintiffs here who invoke the First Amendment as the basis
for their claims. By extension, Plaintiffs argue that Roberts did not suggest that intimate
associations may only be addressed under the Due Process Clause. Lacking in Plaintiffs’
argument, though, is a single case where a court has analyzed their type of relationship
under the First Amendment or any avenue other than the Due Process Clause.6
Accordingly, Christensen remains precedent for this court to evaluate these claims under
the Due Process Clause.
The court now turns to whether Plaintiffs stated claims under this standard. In
evaluating whether Plaintiffs have stated a viable claim under the Due Process Clause of
the Fourteenth Amendment, the court examines, among other things, whether the alleged
conduct by Osborne “shocks the conscience.” Christensen, 483 F.3d at 464. This
standard applies to only the most egregious conduct as it “works to distinguish the due
process guarantee from traditional standards of tort liability, so that the Fourteenth
Amendment does not become a ‘font of tort law.’” Id. at 462 n. 2. For example, conduct
was first announced to shock the conscience in Rochin v. People of California, where
6

Though Plaintiffs cite to the Supreme Court’s brief mention of the First Amendment protecting
family relationships which presuppose deep attachments and commitments, the Court merely
referenced this in a broad overview of the Roberts opinion and did not actually analyze under the
First Amendment an intimate relationship between two parties as present here. See Board of
Dirs. Of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987).
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police officers broke into a suspect’s home without probable cause or exigent
circumstances, assaulted the suspect, falsely arrested him, and pumped his stomach to
obtain evidence. 342 U.S. 165, 172 (1952). On the other hand, allegations that a Deputy
intentionally stalked and harassed plaintiffs specifically to interfere with their intimate
relationship were deemed not to meet the shocks the conscience standard even though the
Deputy acted disreputably and shamefully. Christensen, 483 F.3d at 465.
Here, as noted above, allegations concerning Osborne’s behavior and alleged
discriminatory animus are scarce. Even when construing the complaint in the most
favorable way towards the Plaintiff, Osborne’s conduct does not shock the conscience.
According to the Complaint, Osborne disciplined and ultimately terminated Rihm for
unprofessional behavior; Osborne banned Rowell from the Library’s premises to protect
her employees and other Library patrons. Though Plaintiffs argue that these reasons were
mere pretext for the interracial relationship between them, they have failed to allege
Osborne acted for any other reason than to benefit the Library, its employees, and its
patrons. Even assuming Osborne acted with discriminatory intent, which again the
Plaintiffs have not sufficiently alleged, this conduct likely would not be sufficient to meet
this high standard. Accordingly, Plaintiffs’ claims for freedom of association are
dismissed.
c. Rowell’s Due Process Claim
Rowell alleges that Osborne deprived him of his federally protected rights of due
process of law as guaranteed by the Fifth Amendment. (Compl. ¶ 47). For Rowell to
succeed on a substantive due process claim under the Fifth Amendment, he must show
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action that is so egregious that it “shocks the conscience.” See County of Sacramento v.
Lewis, 523 U.S. 833, 847 (1998) (stating “the substantive component of the Due Process
Clause is violated by executive action only when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense”). As discussed in Plaintiffs’
claim for freedom of association, Osborne’s conduct does not reach this level,
particularly in regards to her treatment of Rowell. The only interaction between Osborne
and Rowell involved Osborne sending a written notice to Rowell’s home which
terminated his rights to be on the Library’s premises for allegedly disrupting and
intimidating Library employees. (Compl. ¶ 35). This is no where near the “conscience
shocking” behavior required to plead a claim.
Plaintiffs do not dispute the standard which should be applied, but instead argue
that Osborne’s decision was based on Rowell’s relationship with Rihm and Rowell’s
race, which would ultimately shock the conscience for “the Director of a public library, in
the Twenty-first Century, [to] deny a black citizen access to the library because of his
race, and his relationship with a white woman.” (Pls.’ Resp. 8-9). This argument is
based solely on a legal conclusion with no factual basis. Indeed, no factual allegations
impute any discriminatory animus to Osborne; instead, Plaintiffs rely on pure speculation
that Osborne’s decision was motivated by Rowell’s relationship with Rihm or his race.
This is not sufficient to state a claim, so Rowell’s due process claim must be dismissed.
See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice”).

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Additionally, Plaintiffs present three other arguments in their response to
Osborne’s argument for dismissing Rowell’s due process claim: (1) Rowell has a First
Amendment right to use the library; (2) Rowell has a Fourteenth Amendment liberty
interest in his right to use the Library; and (3) Rowell has an enforceable property interest
in his right to use the Library and thus did not receive procedural due process under the
Fourteenth Amendment.7 Osborne failed to address any of these arguments in her reply
brief.
i. First Amendment Right to Use Library
According to Rowell, he has a First Amendment right to use the Library because
the Constitution protects the right to receive information and ideas and, to that end, the
library is a place where citizens can exercise that right. (Pls.’ Resp. 9). For that reason,
Rowell argues that Osborne deprived him of this alleged fundamental right when she
banned him from the Library permanently. (Id.).
The court must first determine the existence and extent of such a right.
Brinkmeier v. City of Freeport, No. 93-C-20039, 1993 WL 248201, at *3 (N.D. Ill. July
2, 1993). Whether there is a first amendment right to access a public library has not been
addressed by the Seventh Circuit. In contrast, the Third Circuit extensively examined
this issue and concluded that the First Amendment “includes the right to some level of
7

As an initial matter, since these arguments do not appear to respond to Rowell’s due process
claim under the Fifth Amendment, the court must determine whether these arguments concern
claims previously alleged in the Complaint. This is because “in his response to the motion to
dismiss, a plaintiff may assert additional facts to clarify an existing claim, but he may not amend
(that is, correct or alter) his complaint such that he essentially asserts a new claim.” Jones v.
Sabis Educ. Sys., Inc., No. 98-C-4252, 1999 WL 1206955, at *3 (N.D. Ill. Dec. 13, 1999). Here,
for the purposes of this motion, the court liberally construes Plaintiffs’ Complaint to include the
claims argued.
20

access to a public library.” Kreimer v. Bureau of Police for Town of Morristown, 958,
F.2d 1242, 1255 (3d Cir. 1992). The court agrees with the Third Circuit’s reasoning and
conclusion and finds that there is a First Amendment right to access the Library.
That, however, does not end the inquiry, as “the right to receive information is not
unfettered and may give way to significant countervailing interests.” Id. at 1255. Indeed,
a library is a limited public forum and is thus “obligated only to permit the public to
exercise rights that are consistent with the nature of the Library and consistent with the
government’s intent in designating the library as a public forum.” Id. at 1262. Osborne
failed to respond to this argument, so the court cannot determine (1) whether she acted
pursuant to any Library policies – written or unwritten – and (2) whether such limitations
on Rowell’s right to access and use of the Library pass constitutional muster. See, e.g.,
Kreimer, 958 F.2d at 1263 (finding rule prohibiting behavior that harasses or annoys
others is fundamentally reasonable and did not violate First Amendment); Brinkmeier
1993 WL 248201, at *6 (holding unwritten policy to preclude those that harass or
intimidate library patrons was an unreasonable limitation on plaintiff’s First Amendment
right to access); Armstrong v. Dist. of Columbia Pub. Library, 154 F. Supp. 2d 67, 79
(D.D.C. 2001) (finding regulation instructing library personnel to deny access to patrons
with “objectionable appearance” was vague and overbroad, and thus failed to satisfy First
Amendment standards). Accordingly, Rowell’s First Amendment claim concerning his
right to use the Library remains.
ii. Fourteenth Amendment Liberty Interest

21

Next, Rowell argues that use of the library is (1) among the “common occupations
of life”; (2) directly related to the right “to acquire useful knowledge”; and (3) one of the
“privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.” (Pls.’ Resp. 9). Rowell does not provide any authority that use
of the library is indeed a liberty interest protected by the Fourteenth Amendment nor is
the court aware of any. See Gross v. Town of Cicero, Ill., 619 F.3d 697, 704 (7th Cir.
2010) (noting “it is not this court’s responsibility to research and construct the parties’
arguments, and conclusory analysis will be construed as waiver”) (citation omitted).
Even assuming Rowell does have a liberty interest under the Fourteenth Amendment, as
discussed above, Osborne’s conduct toward Rowell does not “shock the conscience,” and
thus, Rowell cannot sustain a claim for a liberty interest under the Fourteenth
Amendment to use the library.
iii. Enforceable Property Interest/ Fourteenth
Amendment Procedural Due Process
Lastly, Rowell argues that he has an enforceable property interest in his right to
use the Library, and this interest was taken away without “the most basic procedural due
process guarantees required by the Fourteenth Amendment.”
The Due Process Clause of the Fourteenth Amendment provides that “[n]o
State . . . shall . . . deprive any person of life, liberty, or property, without due process of
law . . . .” U.S. Const. amend. XIV § 1. Simply put, “the Fourteenth Amendment’s Due
Process Clause affords state citizens with the right to notice and an opportunity to be
heard before being deprived of ‘property’ as defined by state law.” Taake v. Cnty. of
22

Monroe, 530 F.3d 538, 543 (7th Cir. 2008). Thus, in examining a procedural due process
claim, the court performs a two-step inquiry: (1) whether the defendant deprived the
plaintiff of a constitutionally protected liberty or property interest; and (2) if so, whether
that deprivation occurred without due process of law. Doe v. Heck, 327 F.3d 492, 526
(7th Cir. 2003) (citation omitted).
The court begins by identifying the underlying interest allegedly deprived by the
state actor. “To claim a property interest protected by the Fourteenth Amendment, a
person must have more than a unilateral expectation of the claimed interest. He must,
instead, have a legitimate claim of entitlement to it.” Khan v. Bland, 630 F.3d 519, 527
(7th Cir. 2010) (internal quotation marks and punctuation omitted) (quoting Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Indeed, a legitimate claim of
entitlement is “defined by existing rules or understandings that stem from an independent
source such as state law . . . .” Roth, 408 U.S. at 577; see also Stone v. Hope, IN, No. 010058-C-T/K, 2002 WL 663468, at *2 (S.D. Ind. Mar. 7, 2002) (“In order for there to be a
property interest, the interest must be created by independent sources that secure certain
benefits and that support claims of entitlement to those benefits”). Put another way, a
“property interest of constitutional magnitude exists only when the state’s discretion is
‘clearly limited’ such that the plaintiff cannot be denied the interest ‘unless specific
conditions are met.’” Brown v. City of Michigan City, Indiana, 462 F.3d 720, 729 (7th
Cir. 2006).
Here, Rowell argues that he has an enforceable property interest in his right to use
the Library. Rowell has not, however, pointed to any state law, contract, or another
23

independent source that guarantees him access to the Library under all conditions.
Rowell instead relies extensively on an Eleventh Circuit case, Catron v. City of St.
Petersburg, 658 F.3d 1260 (11th Cir. 2011), arguing that his enforceable property interest
is “virtually identical” to the interest at stake in Catron.
Catron is inapplicable for several reasons. The Court in Catron held that
homeless individuals had a “protected liberty interest to be in parks or on other city lands
of their choosing that are open to the public generally.” 658 F.3d at 1266 (emphasis
added). It is clear by that language alone that the liberty interest in Catron is not virtually
identical to the property interest asserted here by Rowell. Moreover, the type of public
forum discussed in Catron – and the subsequent level of First Amendment protection –
differs from the facts here. Plaintiffs there alleged that the City prohibited them from
“being in city parks . . . , on public sidewalks, and at bus shelters located on public
sidewalks . . . .” Id. This contrasts sharply to the First Amendment protections found at a
public library, which courts have characterized as a “designated public forum” or
“limited public forum” for First Amendment purposes. Kreimer, 958 F.2d at 1259
(stating “[i]t is clear . . . that a public library . . . is sufficiently dissimilar to a public park,
sidewalk or street that it cannot reasonably be deemed to constitute a traditional public
forum”). Thus, these interests are not similar, and as a result, Catron does not provide
guidance here.
Even more, Catron noted that the right to use city parks was not absolute, as
residents did not have a constitutional right to use public parks under all conditions and at
all times. 658 F.3d at 1267 n. 5. Thus, even assuming the liberty interest at stake in
24

Catron had any similarity to the alleged property interest here, the exception noted in that
case is precisely what is at issue here.
Aside from Catron, Rowell simply states that he has an enforceable property
interest in his right to use the Library without citing any authority. Contra Moore v.
Wisconsin Dep’t of Admin., No. 11-cv-304, 2011 WL 1897772, at *2 (W.D. Wis. May
18, 2011) (dismissing procedural due process claim under Fourteenth Amendment where
plaintiff had his library privileges suspended because plaintiff’s allegations did not
suggest he had any property interest in gaining access to library). This is not sufficient to
state a claim. Because Rowell has not shown he has been deprived of a valid property
interest, the court need not address what process, if any, was due. Accordingly, Rowell’s
procedural due process claim under the Fourteenth Amendment is dismissed.
B.

State Claims

Plaintiffs bring a claim for IIED with respect to Mary Rihm against the Library
and Osborne and Medley, in their official and individual capacities. 8 (Compl. Count
Five). In the same way, Plaintiffs bring a claim for IIED with respect to Rowell against
the Library and Osborne and Medley, in their individual capacities. (Compl. Count Six).
Under Indiana law, to state a claim of IIED, a plaintiff must plead that a
defendant: (1) engaged in extreme and outrageous conduct; (2) which intentionally or
recklessly; (3) caused; (4) severe emotional distress to another. Waldrip v. Waldrip, 976
N.E. 2d 102, 117 (Ind. Ct. App. 2012). Indeed, “[i]t is the intent to harm one emotionally

8

The official capacity claim against Osborne in Count Five must also be dismissed as redundant
pursuant to the same reasoning as the dismissed constitutional claims in Counts One and Two.
25

that constitutes the basis for the tort of an intentional infliction of emotional distress.”
Cullison v. Medley, 570 NE.2d 27, 31 (Ind. 1991). To that end, the requirements to prove
this tort are “rigorous.” Creel v. I.C.E. & Associates, Inc., 771 N.E.2d 1276, 1282 (Ind.
Ct. App. 2002).
“What constitutes ‘extreme and outrageous’ conduct depends, in part, upon
prevailing cultural norms and values.” Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct.
App. 1999). Moreover, under Indiana law, conduct is extreme and outrageous:
only where the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’
Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996) (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)). Thus, “liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”
Gable v. Curtis, 673 N.E.2d 805, 810 (Ind. Ct. App. 1996) (citing Restatement (Second)
of Torts § 46 at 72-73).
1. Rihm’s IIED Claim
a. Osborne
Rihm’s IIED claim is set within the employment context, but in employment cases
“Indiana courts have been reluctant to award damages for intentional infliction of
emotional distress.” McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1167 (S.D.
Ind. 1997); see also Ellis v. CCA of Tenn., LLC, No. 1:08-cv-254, 2010 WL 2605870, at
26

*8 (S.D. Ind. June 21, 2010) (“Indiana courts shy away from awarding damages on the
basis of [IIED] as an independent tort in employment cases”). More importantly, per the
factual allegations in the Complaint, the court may only conclude that Osborne
suspended, and ultimately terminated, Rihm due to her unprofessional behavior and
complaints from other employees. Indeed, the complaint is devoid of any allegations of
Osborne’s discriminatory animus. As a result, Osborne’s decision to terminate Rihm for
“failing to follow orders and unprofessional conduct” cannot be deemed extreme and
outrageous conduct under Indiana law. See e.g., Keri v. Bd. of Trustees of Purdue Univ.,
458 F.3d 620, 650 (7th Cir. 2006) (finding that termination of professor for engaging in
inappropriate conduct with students did not constitute extreme and outrageous conduct
under Indiana law); Ellis v. CCA of Tenn., LLC, No. 1:08-cv-254, 2010 WL 2605870, at
*8 (S.D. Ind. June 21, 2010) (holding that under Indiana law even unwarranted
disciplinary actions do not constitute extreme and outrageous conduct); Powdertech, Inc.
v. Joganic, 776 N.E.2d 1251, 1264 (Ind. Ct. App. 2002) (holding the firing of a employee
pursuant to disciplinary process does not constitute extreme and outrageous conduct).
Accordingly, Plaintiffs’ claim against Osborne for IIED of Rihm (Count Five) must be
dismissed.
b. Library
Plaintiffs do not state the theory in which they bring a claim for IIED against the
Library, but for the purposes of this motion, the court assumes it is under the theory of
respondeat superior liability. As such, the court must evaluate the actions of the
Library’s employees to determine whether their acts result in liability for the Library. As
27

noted above, Osborne’s actions were neither extreme nor outrageous, so the court must
also evaluate whether the actions of Medley and other Library employees impart liability
on the Library.
Because Medley’s actions are included in this analysis, Plaintiffs have factual
allegations displaying discriminatory animus which may rise to the level of extreme and
outrageous conduct. Given the liberal notice pleading standard and the fact that Plaintiffs
are not required to allege all facts that support their claim at this time, it is possible for
Plaintiffs to prove a set of facts consistent with their complaint to satisfy the high bar set
for IIED. See, e.g. Bryant v. Troy Auto Parts Warehouse, Inc., No. IP 95-1654, 1997 WL
441288, at *7 (S.D. Ind. Apr. 25, 1997) (denying summary judgment on IIED claim
where employee was verbally harassed by co-workers and his supervisor was a
participant in the name-calling). As a result, dismissal is inappropriate. See Sullen v.
Midwest ISO, No. 1:04-cv-0914, 2005 WL 4889257, at *4 (S.D. Ind. July 27, 2005)
(denying motion to dismiss IIED claim but noting it is “dubious that the Plaintiff will be
able to meet the high bar set by Indiana law”).
2. Rowell’s IIED Claim
a. Osborne
Much like Rihm’s IIED claim, Rowell’s IIED claim is based scantly on Osborne’s
behavior. Again, no factual basis has been set forth to infer any discriminatory animus
on the part of Osborne towards Rowell, and Plaintiffs’ argument containing pure
speculation of what motivated Osborne is not sufficient to state a claim. Accordingly,

28

Plaintiffs’ IIED claim against Osborne with respect to Rowell (Count Six) must be
dismissed.
b. Library
Finally, much like Rihm’s IIED claim, the court considers Rowell’s claim for
IIED against the Library on a respondeat superior theory. Again, when considering the
allegations concerning all Library employees and all reasonable inferences stemming
from such conduct, it is plausible that Plaintiffs may prove a set of facts consistent with
their complaint to state a claim for IIED. Accordingly, Plaintiffs’ claim for IIED against
the Library (Count Six) should not be dismissed.
IV.

Conclusion
For the reasons set forth above, Defendants’ motion to dismiss (Docket # 16) is

GRANTED IN PART and DENIED IN PART. Plaintiffs’ IIED claims against the
Library survive as well as Rowell’s First Amendment claim against Osborne. All
constitutional claims against the Library and Osborne in her official capacity are
dismissed. In addition, all remaining claims against Osborne in her individual capacity
are dismissed.
SO ORDERED this 20th day of June 2013.
_______________________________
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG,Court JUDGE
United States District CHIEF
United States District Court
Southern District of Indiana
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

29