BARBER v. CURE et al

Filing 40

ORDER granting 28 Motion to Dismiss for Failure to State a Claim. The above ruling resolves the last claim in the case. Signed by Judge Sarah Evans Barker on 5/6/2015 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEVIN BARBER,
Plaintiff,
vs.
MICHAEL DIEKHOFF,
Police Chief, Bloomington Police Department,
Defendant.

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1:14-cv-305-SEB-MJD

Entry Granting Motion to Dismiss
and Directing Issuance of Final Judgment
The sole claim remaining in this civil rights action is against Bloomington, Indiana Police
Chief Michael Diekhoff. The claim against Chief Diekhoff is asserted pursuant to 42 U.S.C. §
1983 and is based on his supervisory position rather than on his individual conduct in the incident
forming the basis of the lawsuit.
Chief Diekhoff has filed a motion to dismiss based on Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Rule 12(b)(6) authorizes dismissal of claims for “failure to state a claim upon
which relief may be granted.” Fed.R.Civ.P. 12(b)(6). Whether a complaint states a claim is a
question of law. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).
A complaint must allege sufficient factual matter to “state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Pro se complaints are construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).

Nonetheless, “[a] complaint is subject to dismissal for failure to state a claim if the allegations,
taken as true, show that plaintiff is not entitled to relief." Jones v. Bock, 127 S. Ct. 910, 921 (2007).
The plaintiff sues Chief Diekhoff based on the following allegations: Plaintiff and Kenneth
Simpson were formerly roommates at a leased premises in Bloomington, Indiana. On or about
March 6, 2012, Simpson entered that premises by removing or breaking a screen window. Simpson
proceeded to look for firearms, and upon finding none, rummaged through some of the plaintiff’s
personal belongings. The Bloomington Police were called, but neither aided Simpson in his search
nor arrested him based on the manner in which he had gained entry into the premises. Chief
Diekhoff, though not present at the scene and not alleged to have knowledge of the activity, is the
administrative supervisor of the Bloomington Police Department.
The plaintiff invokes 42 U.S.C. § 1983, “the ubiquitous tort remedy for deprivations of
rights secured by federal law (primarily the Fourteenth Amendment) by persons acting under color
of state law.” Jackson v. City of Joliet, 715 F.2d 1200, 1201 (7th Cir. 1983), cert. denied, 465 U.S.
1049 (1984). To state a claim under 42 U.S.C. ' 1983, a plaintiff must allege the violation of a
right secured by the Constitution or laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988).
"[T]he first step in any [§ 1983] claim is to identify the specific constitutional right
infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). The claim falters at this point. The
Bloomington Police Department, whether in the person of Chief Diekhoff or otherwise, had no
obligation to arrest Simpson and owed the plaintiff no duty to do so even if it could be thought that
probable cause existed for it to do so. Hoffa v. United States, 385 U.S. 293, 309-10 (1966). Thus,
no action lies under ' 1983 unless a plaintiff has asserted the violation of a federal right. See

Middlesex County Sewage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 19 (1981); Juriss v.
McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992) (without a predicate constitutional violation one
cannot make out a prima facie case under ' 1983).
Apart from the foregoing deficiency, moreover, the plaintiff’s theory of Chief Diekhoff’s
liability is flawed. Chief Diekhoff was not personally involved in the incident which forms the
basis of the plaintiff’s claim. Section 1983 creates a cause of action based on personal liability and
predicated upon fault. It “does not establish a system of vicarious responsibility.” Burks v.
Raemisch, 555 F.3d 592, 593 (7th Cir. 2009). Thus, “to be liable under [Section] 1983, an
individual defendant must have caused or participated in a constitutional deprivation.” Pepper v.
Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). No allegation of that nature is made and
no plausible inference to that effect is supported by the allegations which are made.
Chief Diekhoff’s motion to dismiss [dkt 28] is granted.
The above ruling resolves the last claim in the case. Final judgment consistent with this
ruling and with the prior rulings dismissing other claims as legally insufficient shall now issue.
IT IS SO ORDERED.
Date: _________________
05/06/2015

Distribution:
KEVIN M. BARBER
230855
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