WININGEAR v. CITY OF MUNCIE et al
Filing
49
ORDER granting Defendants' Partial 23 Motion to Dismiss. The Fourth Amendment claims of false arrest and imprisonment remain against the Defendants. Signed by Judge Richard L. Young on 4/4/2014. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SCOTT A WININGEAR,
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Plaintiff,
vs.
THE CITY OF MUNCIE INDIANA,
JEFFERY PEASE,
MATTHEW BERGER,
DOES 1-10,
Defendants.
1:13-cv-01823-RLY-DML
ENTRY ON THE CITY OF MUNCIE, MUNCIE CHIEF OF POLICE, JEFFREY
PEASE, AND MATTHEW BERGER’S PARTIAL MOTION TO DISMISS
Plaintiff, Scott A. Winingear, brought suit against Defendants, the City of Muncie, the
Muncie Chief of Police, Jeffrey Pease, and Matthew Berger (collectively “Defendants”)
for depriving him of his constitutional rights and committing several torts. Defendants
move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (hereinafter, “Rule
12(b)(6)”). For the reasons set forth below, the partial motion to dismiss is GRANTED.
I.
Background
On December 8, 2012, Winingear arrived at his mattress store around 8 a.m.
(Amended Complaint ¶ 10; Filing No. 11, at ECF p. 3). A couple of hours later, he
witnessed a SUV speeding past his store. Winingear shouted “Slow the Fuck Down!”
(Id. at ¶ 12; Filing No. 11, at ECF p. 3). The SUV was driven by retired Muncie police
officer, Gary McCreery. (Id. at ¶ 14; Filing No. 11, at ECF p. 3). McCreery backed the
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SUV up and confronted Winingear. (Id. at ¶ 13; Filing No. 11, at ECF p. 3). A heated
argument ensued between Winingear and McCreery. (Id. at ¶ 13; Filing No. 11, at ECF
p. 3). McCreery drove away after the argument, and Winingear returned to his store. (Id.
at ¶ 37, Filing No. 11, at ECF p. 6).
McCreery called the police and reported that he was driving home when
Winingear1 pulled out in front of his SUV and slowed down to 10 miles per hour. (Id. at
¶ 44, Filing No. 11, at ECF p. 6-7). McCreery alleged that after the vehicles stopped,
Winingear yelled that he would kill McCreery while waving a foot long hunting knife.
(Id. at ¶ 49). McCreery called and reported this to the police. (Id. at ¶ 55, Filing No. 11,
at ECF p. 8).
Officers Pease and Berger were dispatched to the store; Officer Pease was the first to
arrive. (Id. at ¶¶ 69-70, Filing No. 11, at ECF p. 10). Officer Pease failed to conduct a
cursory investigation to determine if Winingear’s vehicle had been recently driven as
McCreery reported. (Id. at ¶ 73; Filing No. 11, at ECF p. 11). Additionally, Officers
Pease and Berger did not search for the knife despite being given permission to search the
car and the store. (Id. at ¶¶ 80-81, Filing No. 11, at ECF p. 12). Rather, they arrested
Winingear and took him to jail. (Id. at ¶¶ 84, 86; Filing No. 11, at ECF p. 12).
Winingear brought the present lawsuit alleging the deprivation of his constitutional
rights under the Fourth and Fourteenth Amendment to the United States Constitution and
a violation of the Indiana Constitution. Additionally, he alleged a violation of his equal
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McCreey indicated that he did not know who was driving, but it was later alleged to be
Winingear.
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protection rights under the United States Constitution and several torts. Subsequent to
the filing of Defendants’ partial motion to dismiss, Winingear moved to dismiss several
claims, which the court granted. (Filing No. 43; Filing No. 44; Filing No. 45).
II.
Standard
The Defendants bring their motion to dismiss under Rule 12(b)(6), which authorizes
the dismissal of claims for “failure to state a claim upon which relief may be granted.”
FED. R. CIV. P. 12(b)(6). The purpose of a motion to dismiss is to test the legal
sufficiency of the complaint, not the merits of the lawsuit. Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). A court may grant a Rule 12(b)(6) motion to
dismiss only if a complaint lacks “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
sufficient on its face need not give “detailed factual allegations,” but it must provide
more than “labels and conclusions, and a formulaic recitation of the elements of a cause
of action.” Id. at 555.
III.
Discussion
A. Deprivation of Constitutional Rights2
i. Fourteenth Amendment Claims
Winingear alleges that the Defendants violated his Fourteenth Amendment right
by subjecting him to an unreasonable seizure, arrest, detention, and confinement.
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Defendants did not move to dismiss Winingear’s claims under the Fourth Amendment to the
United States Constitution. As such, these claims remain against Defendants.
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Defendants move to dismiss the Fourteenth Amendment claim; Winingear does not
respond to this part of the motion to dismiss.
In support, the Defendants rely on Lopez v. City of Chicago. In that case, the
Seventh Circuit stated that “we have held that ‘the Fourth Amendment governs the period
of confinement between arrest without a warrant and the preliminary hearing at which a
determination of probable cause is made, while due process regulates the period of
confinement after the initial determination of probable cause.’” Lopez v. City of Chicago,
464 F.3d 711, 719 (7th Cir. 2006) (citing Villanova v. Abrams, 972 F.2d 792, 797 (7th
Cir. 1992)). Winingear does not allege any seizures occurring after his preliminary
hearing; therefore, he fails to state a claim under the Fourteenth Amendment’s Due
Process Clause. That claim is therefore DISMISSED.
ii. Equal Protection Claims
Winingear also asserts that his right to equal protection under the U.S.
Constitution was violated by Defendants. Defendants move to dismiss this claim;
Winingear does not respond. The Seventh Circuit has held that, “[t]o state an equal
protection claim, a § 1983 plaintiff must allege that a state actor purposefully
discriminated against him because of his identification with a particular (presumably
historically disadvantaged) group.” Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37
F.3d 1216, 1220 (7th Cir. 1994). Winingear fails to allege that he is a member of any
particular group. As such, he fails to state a claim upon which relief can be granted. The
Equal Protection claim is therefore DISMISSED.
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iii. Indiana Constitutional Claims
Additionally, Winingear alleges that the Defendants’ actions violated the Indiana
Constitution. Defendants argue that there is no private right of action for monetary
damages under the Indiana Constitution. Winingear does not respond to this argument.
This court has held that there is no implied private right of action for damages under the
Indiana Constitution. See Fermaglich v. Indiana, No. IP-01-1959-T/K, 2004 WL
2750262, * 44 (S.D. Ind. Sept. 29, 2004) (citations omitted). The court reaffirms that
holding. Therefore, Winingear’s claims that the Defendants violated his rights under the
Indiana Constitution are DISMISSED.
iv. Remaining Claims Against the City of Muncie3
Winingear also sues the City of Muncie under Section 1983 pursuant to Monell v.
New York City Dep’t of Social Servs., 436 U.S. 658 (1978). It is undisputed that for the
City of Muncie to be liable for violating Winingear’s constitutional rights, he must plead
that his false arrest and incarceration resulted from a policy or custom of the City of
Muncie’s Police Department. See id. at 694. Defendants argue that Winingear fails to
state a Monell claim that is plausible on its face. In response, Winingear asserts that in
Paragraph 74 of his complaint, he states that:
Officer Pease apparently elected to ignore[] Muncie Police Department
General Order 2-14 {Conducting Preliminary Investigations}, where said
Order requires the first officer on the scene to render aid, preserve
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The court has previously dismissed Winingear’s fourth claim for relief alleging negligent
hiring, training, and retention on the part of the City of Muncie. (Filing No. 45). In addition, the
court dismissed the third and fourth claims of relief, which were brought against all defendants.
(Filing No. 45).
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evidence, preserve the crime scene (if any), interview and question victims,
witnesses or suspects, and determine if a crime has been committed.
(Amended Complaint ¶ 74; Filing No. 11, at ECF p. 11). Additionally, Winingear alleges
that the City of Muncie failed to keep the policies and procedures up to date. (Id. at ¶
135; Filing No. 11, at ECF p. 19).
The court agrees with Defendants; Winingear fails to allege that the City has a
policy or custom that resulted in his unlawful treatment. In fact, he alleges the opposite –
that if Officer Pease had followed the policy, then he would not have been unlawfully
seized and detained. Therefore, the court DISMISSES the Monell claim against the City
of Muncie.4
B. State Tort Law Claims
The court previously dismissed Winingear’s fifth claim for relief (Filing No. 45),
which asserts claims for false arrest, false imprisonment, battery, malicious prosecution,
and intentional infliction of emotional distress. (Amended Complaint ¶ 139; Filing No.
11). Nevertheless, in his response in opposition to Defendants’ motion to dismiss,
Winingear still asserts that his state law claims are not barred by the Indiana Tort Claims
Act’s filing requirements. Defendants argue that the tort claims are barred because (1)
his tort claim notice was untimely and (2) this suit was filed before the tort claim was
denied.
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Winingear also sues the officers in their official capacity, which would be the equivalent to a
suit against the public entity itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(citation omitted). Because this is duplicative of suing the City of Muncie, the court also
DISMISSES any and all claims against the officers in their official capacities.
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The Indiana Tort Claim Act provides that all claims filed against a political
subdivision must be filed within 180 days of the loss. In addition, “[a] person may not
initiate a suit against a governmental entity unless the person’s claim has been denied in
whole or in part.” Ind. Code 34-13-3-13; see also Washington v. Schumann, No. 2:09-cv270-PRC, 2013 WL 5314610, * 5 (N.D. Ind. Sept. 19, 2013) (slip copy) (“a would be
plaintiff may only pursue a lawsuit to the extent that the governmental agency has denied
his claim.”). Because the claims are untimely and were not denied at the initiation of this
lawsuit, any state law tort claims remaining are DISMISSED.
IV.
Conclusion
Winingear fails to allege sufficient facts to sustain claims under the Fourteenth
Amendment, Equal Protection Clause, Indiana Constitution, and state tort law.
Additionally, he fails to state a claim against the City of Muncie. As such these claims
are DISMISSED, and the court GRANTS Defendants’ partial motion to dismiss (Filing
No. 23). The Fourth Amendment claims of false arrest and imprisonment remain against
the Defendants.
SO ORDERED this 4th day of April 2014.
__________________________________
s/ Richard L. Young_______________
RICHARDL. 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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