MCPHAUL v. BALL STATE UNIVERSITY POLICE et al

Filing 91

Entry Discussing Motion to Dismiss: In summary, the defendants' motion to dismiss [dkt 69] is granted in part and denied in part. The motion is granted consistent with the following: all claims brought pursuant to 42 U.S.C. § 1983 against BSUP are dismissed; all § 1983 claims brought against the individual defendants in their official capacities are dismissed; any claim for excessive force against Officers Barnes and Gaither is dismissed; the First Amendment claim r elated to the alleged seizure of McPhaul's cell phone and deletion of the video is dismissed against defendants Barnes, Brand, and Gaither. Finally, any due process claim is dismissed against Officers Brand, Barnes, and Clark. The motion is denied as to McPhaul's claims brought pursuant to the ITCA. The defendants shall have leave to file a motion for summary judgment on McPhaul's tort claims and shall have through February 29, 2016, in which to do so ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus-Stinson on 2/1/2016. Copy sent to Plaintiff Djuane McPhaul via US Mail. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DJUANE MCPHAUL,
Plaintiff,
vs.
BALL STATE UNIVERSITY POLICE, et
al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-623-JMS-MJD

Entry Discussing Motion to Dismiss
Plaintiff Djuane McPhaul brings this civil rights complaint against Ball State University
Police (“BSUP”), Jordan Brand, David Barnes, Brad Clark, and Matt Gaither alleging that the
defendants: (1) used excessive force in arresting and detaining him; (2) violated his First
Amendment right to video-record police activity by deleting a video from his phone; and (3)
violated his right to due process under the Fifth and Fourteenth Amendments by failing to
investigate his internal complaint related to these allegations. Based on these allegations, he brings
claims pursuant to 42 U.S.C. § 1983 and Indiana tort law. The defendants move for dismissal of
some of McPhaul’s claims. For the reasons that follow, the motion to dismiss [dkt 69] is granted
in part and denied in part.
I. Standard of Review
The defendants seek dismissal of McPhaul’s § 1983 claims pursuant to Rules 12(b)(6) and
12(b)(1) of the Federal Rules of Civil Procedure.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of
the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 586

(7th Cir. 1989). The standard for assessing the procedural sufficiency of pleadings is imposed by
Federal Rule of Civil Procedure 8(a)(2), which requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Thus, although the complaint need not recite
“detailed factual allegations,” it must state enough facts that, when accepted as true, “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
A claim is facially plausible when the plaintiff pleads facts sufficient for the Court to infer that the
defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Twombly/Iqbal standard “is not akin to a ‘probability requirement’, but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). By
comparison, a complaint that merely contains “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action” does not satisfy the factual plausibility standard. Twombly,
550 U.S. at 555.
In ruling on a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff, accepting all well-pleaded factual allegations as true and drawing all reasonable
inferences from those allegations in favor of the plaintiff. Lee v. City of Chi., 330 F.3d 456, 459
(7th Cir. 2003). Thus, a complaint should only be dismissed pursuant to Rule 12(b)(6) when “it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.
2007). Additionally, the Court may not rely upon evidence and facts outside of those alleged in
the complaint in ruling on a motion to dismiss.

2

II. Discussion
The defendants move to dismiss certain of McPhaul’s claims brought pursuant to 42 U.S.C.
§ 1983 for failure to state a claim upon which relief can be granted. They further move to dismiss
his state tort claims for lack of jurisdiction based on his alleged failure to comply with the Indiana
Tort Claims Act (“ITCA”).
A. 42 U.S.C. § 1983 Claims
1. Sovereign Immunity
BSUP moves for dismissal of any constitutional claims against it based on sovereign
immunity. Eleventh Amendment immunity bars suits against states and their agencies regardless
of the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State
School and Hospital v. Halderman, 465 U.S. 89, 102 (1984). Further, states and their agencies are
not “persons” subject to suit pursuant to 42 U.S.C. ' 1983 under the circumstances alleged in the
complaint. Will v. Michigan Department of State Police, 491 U.S. 58 (1989); see also Swartz v.
Scruton, 964 F.2d 607, 608 (7th Cir. 1992)(case properly dismissed against Ball State Board of
Trustees as “an arm of the State of Indiana”); Zimmerman v. Trustees of Ball State University, 940
F.Supp.2d 875, 885-886 (S.D. Ind. 2013). Accordingly, all claims brought pursuant to § 1983
against BSUP are dismissed. In addition, all § 1983 claims against any defendant in their official
capacity must be dismissed for the same reason. This is because any claim for damages against
the defendant individuals in their official capacities is “in all respects other than name, to be treated
as a suit against the entity . . . for the real party in interest is the entity.” Kentucky v. Graham, 473
U.S. 159, 166 (1985).

3

2. Personal Involvement
The individual defendants also move to dismiss certain § 1983 claims against them because
there is no allegation that they personally participated in the alleged constitutional deprivation. It
is true that only persons who cause or participate in the violations are responsible under § 1983.
See Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005); Reed v. McBride, 178 F.3d 849, 85152 (7th Cir. 1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996). Accordingly, any claim
for excessive force against Officers Barnes and Gaither must be dismissed because McPhaul does
not allege in the complaint that these defendants participated in the use of any alleged force against
him. McPhaul’s bare assertion in his response to the motion to dismiss that Barnes “harassed him”
is insufficient to state an excessive force claim. Similarly, the First Amendment claim related to
the alleged seizure of McPhaul’s cell phone and deletion of the video must be dismissed against
defendants Barnes, Brand, and Gaither because McPhaul alleges in the complaint only that
defendant Clark handled his phone and deleted the video. Again, McPhaul’s conclusory assertion
in his response to the motion to dismiss that “Officers violat[ed] McPhaul[’s] rights by deleting
recording in phone and falsely arresting McPhaul” is insufficient to raise a plausible claim for
relief against these defendants because this assertion does not support a conclusion that any of the
defendants personally participated in the acts at issue. Finally, any due process claim must be
dismissed against Officers Brand, Barnes, and Clark because McPhaul does not allege that these
defendants participated in the allegedly unfair investigation.
B. Indiana Tort Claims
The defendants also argue that any tort claim, including McPhaul’s claims for
“defamation” and “emotional distress” must be dismissed as barred by the Indiana Tort Claims
Act (“ITCA”) because McPhaul failed to file a notice of the tort claim within 180 days after the
4

alleged tort occurred as required by Indiana statute. Ind. Code § 34-13-3-8(a). The defendants
argue that because McPhaul failed to file such a notice, his claims must be dismissed for lack of
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
While it is true that the filing of a notice of tort claim is a jurisdictional prerequisite to filing
suit in Indiana courts, see Teague v. Boone, 442 N.E.2d 1119, 1120 (Ind.Ct.App. 1982) (citing
cases), it does not affect the jurisdiction of this Court when exercising its supplemental jurisdiction
over the tort claims at issue pursuant to 28 U.S.C. § 1367(a). See D.D. ex rel. R.D. v. Gary Cmty.
Sch. Corp., 2009 WL 3241592, at *3 (N.D. Ind. Sept. 28, 2009). Dismissal is therefore not
appropriate pursuant to Rule 12(b)(1) and the defendants’ request for dismissal of the plaintiff’s
tort claims for lack of jurisdiction must be denied. Further, the Court notes that dismissal of the
tort claims is inappropriate pursuant to Rule 12(b)(6) because such a ruling would require resort
to evidence presented outside of the allegations of the complaint.
III. Conclusion
In summary, the defendants’ motion to dismiss [dkt 69] is granted in part and denied in
part.
The motion is granted consistent with the following: all claims brought pursuant to 42
U.S.C. § 1983 against BSUP are dismissed; all § 1983 claims brought against the individual
defendants in their official capacities are dismissed; any claim for excessive force against Officers
Barnes and Gaither is dismissed; the First Amendment claim related to the alleged seizure of
McPhaul’s cell phone and deletion of the video is dismissed against defendants Barnes, Brand,
and Gaither. Finally, any due process claim is dismissed against Officers Brand, Barnes, and
Clark.

5

The motion is denied as to McPhaul’s claims brought pursuant to the ITCA. The
defendants shall have leave to file a motion for summary judgment on McPhaul’s tort claims and
shall have through February 29, 2016, in which to do so.
The claims that remain are (1) McPhaul’s excessive force claim against Officers Clark and
Brand; (2) McPhaul’s First Amendment claim against Officer Clark for allegedly deleting a video
of police activity which McPhaul was recording on his cell phone; and (3) McPhaul’s claim that
Sergeant Gaither violated his due process rights for failing to perform an adequate investigation
McPhaul’s Internal Complaint. Those claims are addressed in the defendants’ motion for summary
judgment, which will be ruled upon in a separate order.
IT IS SO ORDERED.

Date: February 1, 2016

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
DJUANE L. MCPHAUL
#742055
P.O. Box 979
Henderson, KY 42419
All Electronically Registered Counsel

6