DAW et al v. CONSOLIDATED CITY OF INDIANAPOLIS AND MARION COUNTY

Filing 41

ORDER - This case arises from a dispute between pro se Plaintiffs Nancy Daw and Stephen Hoback (collectively "Plaintiffs") and Defendants Marion County and the City of Indianapolis (collectively "Defendants") regarding a portion of Plaintiffs' property. Plaintiffs allege that Defendants have violated their rights under the Due Process Clause of the United States Constitution. Following a dismissal of their original complaint, they filed an Amended Complaint in this Court, requesting compensatory and injunctive relief under 42 U.S.C. § 1983. Defendants have moved to dismiss the Amended Complaint, [Filing No. 35 ], which Plaintiffs oppose. For the reasons described below, the Court grants Defendants 9; Motion and dismisses Plaintiffs' Complaint without prejudice. For the reasons described above, the Court GRANTS Defendants' Motion to Dismiss, [Filing No. 35 ], and DISMISSES Plaintiffs' Amended Complaint, [Filing No. 34 ], without prejudice. Plaintiffs have thirty days to file a Second Amended Complaint if they intend to continue to pursue this action. (SEE ORDER). Copy to Plaintiffs via US Mail. Signed by Judge Jane Magnus-Stinson on 10/11/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NANCY A. DAW,
STEPHEN L. HOBACK,

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Plaintiffs,
v.
CONSOLIDATED CITY OF INDIANAPOLIS
AND MARION COUNTY,
Defendant.

No. 1:16-cv-02550-JMS-DML

ORDER

This case arises from a dispute between pro se Plaintiffs Nancy Daw and Stephen Hoback
(collectively “Plaintiffs”) and Defendants Marion County and the City of Indianapolis (collectively
“Defendants”) regarding a portion of Plaintiffs’ property. Plaintiffs allege that Defendants have
violated their rights under the Due Process Clause of the United States Constitution. Following a
dismissal of their original complaint, they filed an Amended Complaint in this Court, requesting
compensatory and injunctive relief under 42 U.S.C. § 1983. Defendants have moved to dismiss
the Amended Complaint, [Filing No. 35], which Plaintiffs oppose. For the reasons described
below, the Court grants Defendants’ Motion and dismisses Plaintiffs’ Complaint without
prejudice.
I.
BACKGROUND1
Plaintiffs reside at 4110 Ritterskamp Court in Indianapolis, Indiana, and that property is
the subject of the current dispute between Plaintiffs and Defendants. [Filing No. 34 at 3.] Plaintiffs

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The Court notes at the outset, as it did regarding Plaintiffs’ initial Complaint, that the factual
allegations contained in Plaintiffs’ Amended Complaint are difficult to understand and often
intertwined with legal conclusions and argument. Particularly because Plaintiffs are proceeding
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received a letter from the Indianapolis Department of Public Works (“DPW”) dated August 28,
2012, informing them that, concerning Ritterskamp Court, DPW determined that it was necessary
to “widen the roadway, where appropriate, to accommodate solid waste trucks…Land acquisition
will be necessary to complete this project and establish permanent right of way.” [Filing No. 34
at 18.] The land acquisition included part of Lot #7, owned by Plaintiffs. [Filing No. 34 at 18.]
In the spring of 2013, DPW purchased parts of platted lots in Dean Meadows subdivision by use
of a subdivision-by-deed procedure. [Filing No. 34 at 20.] On April 20, 2013 and April 27, 2013,
the following “offer to purchase” notice appeared in the Indianapolis Star:

[Filing No. 34 at 21.] Plaintiffs had no knowledge of this notice. [Filing No. 34 at 21.]
On May 29, 2013, the City of Indianapolis filed a Complaint in Marion Superior Court for
the Appropriation of Real Estate regarding the subject portion of Plaintiffs’ Lot 7. [Filing No. 34
at 23.]

That complaint stated that “Plaintiff has prepared and adopted plans for a public

pro se, the Court has made every effort to discern the factual allegations and construe them in the
manner intended by Plaintiffs.
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improvement project in order to resurface Ritterskamp Court, located in Indianapolis, Marion
County, Indiana.” [Filing No. 34 at 34 (emphasis removed).] On June 6, 2013, Ms. Daw and Mr.
Hoback appeared as trustees of Blue Diamond Revocable Trust in that action. [Filing No. 34 at
24.]
According to the written judgment in that action, all Defendants “were properly served
with summons and notice as required by statute.” [Filing No. 17-1 at 1.] The judgment also
indicates that “[n]o Defendant filed timely objection to the appropriation of the real estate interest
the Plaintiff seeks to acquire.” [Filing No. 17-1 at 2.] On May 2, 2014, court-appointed appraisers
filed a report stating that Defendants had sustained total damages of $7,500, and no party filed any
exceptions to the appraisal. [Filing No. 17-1 at 2.] The court directed the City to deposit $7,500
with the Clerk of the Court, which it did on July 1, 2014. [Filing No. 17-1 at 2.] The court then
decreed that the City holds a fee simple interest in the subject portion of real estate, and ordered
that the defendants should recover $7,500 as total just compensation for the City’s appropriation.2
[Filing No. 17-1 at 2-3.]
On September 23, 2014, DPW sent a letter to Plaintiffs stating that “[t]he property in front
of your residence was acquired by eminent domain.” [Filing No. 34 at 37.] On September 29,
2014, “under the direction and control of Defendant and accompanied by City Police officers,
Calumet City Contractors trespassed upon Lot #7 in Dean Meadows and proceeded to demolish,
destroy, excavate and confiscate property, both real & personal, depriving Plaintiffs of their

2

This information is not contained within Plaintiffs’ Amended Complaint, but appears in an
August 14, 2014 judgment issued by the Marion County Superior Court. The Court takes judicial
notice of this judgment. See U.S. v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991) (“The district
court may also take judicial notice of matters of public record.”).
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constitutionally protected right to exclude others, right against trespass, right of quiet enjoyment
and legal right to access the platted Cul-de-sac street.” [Filing No. 34 at 39.]
Plaintiffs filed their initial Complaint in this Court on September 26, 2016, alleging
violations of the Due Process and Equal Protection Clauses of the United States Constitution and
42 U.S.C. § 1983. [Filing No. 1.] Defendants filed an Answer to the Complaint, [Filing No. 8],
and then a Motion for Judgment on the Pleadings, [Filing No. 16]. The Court granted that Motion
without prejudice, [Filing No. 30], allowing Plaintiffs to file an Amended Complaint if they wished
to continue to pursue this action. Plaintiffs timely filed an Amended Complaint, [Filing No. 34],
alleging only violations of their due process rights under the Fourteenth Amendment to the United
States Constitution. Defendants have filed a Motion to Dismiss, [Filing No. 35], which is now
fully briefed and ripe for the Court’s review.
II.
DISCUSSION
Defendants make two arguments in support of their Motion to Dismiss. First, they argue
that Plaintiffs’ Amended Complaint is “largely incomprehensible, in violation of the general
pleading requirements as well as the Court’s previous order.” [Filing No. 37 at 1.] Second, they
contend that this Court lacks subject matter jurisdiction over Plaintiffs’ claims, because Plaintiffs
have failed to exhaust their state court remedies. The Court considers each argument in turn.
A. Failure to Comply with Rule 8(a)
Defendants argue that Plaintiffs’ Amended Complaint violates Federal Rule of Civil
Procedure 8(a) by failing to provide a “short and plain” statement of the facts or any relevant
details about the nature of their legal claim. [Filing No. 37 at 3.] Plaintiffs respond that “the
complicated nature and lengthy history of events spanning half a century requires a lengthy
narrative to more comprehensively state Plaintiff’s [sic] claim.” [Filing No. 40 at 13.]
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Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. Pro. 8(a)(2)). “Specific facts are not necessary, the statement need only ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson,
551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). Rule 8, however,
“requires parties to make their pleadings straightforward, so that judges and adverse parties need
not try to fish a gold coin from a bucket of mud.” United States ex rel. Garst v. Lockheed-Martin
Corp., 328 F.3d 374, 378 (7th Cir. 2003); see also Jennings v. Emry, 910 F.2d 1434, 1436 (7th
Cir. 1990) (complaint “must be presented with sufficient clarity to avoid requiring a district court
or opposing party to forever sift through its pages” to determine whether it states a valid claim).
This is Plaintiffs’ second attempt at drafting a complaint that would satisfy the standards
of Rule 8. [See Filing No. 1.] In its prior Order granting Defendants’ Motion for Judgment on the
Pleadings, the Court pointed out that Plaintiffs’ factual allegations were difficult to understand and
often intertwined with legal conclusions. [Filing No. 30 at 2.] The Court also provided Plaintiffs
with guidance regarding the elements required to plead a due process claim in this context, and
advised Plaintiffs that they should draft their Amended Complaint “as if they are telling a story to
people who know nothing about their situation.” [Filing No. 30 at 12.]
Plaintiffs timely filed an Amended Complaint, but it contains neither a short nor a plain
statement of the legal claims being raised. The Amended Complaint is 43 pages long, spanning
177 numbered paragraphs. The facts recited by Plaintiffs date back to 1959, when their subdivision
was first platted, and the Amended Complaint details a confusing history regarding the sale of
various lots, the granting of easements, and insurance policy provisions. [Filing No. 34 at 1-5.] It
also recounts the history of the categorization of Ritterskamp Court as either a private drive or a

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cul-de-sac, as well as Plaintiffs’ attempts to obtain information about the categorization. [Filing
No. 34 at 5-17.] The remaining 25 pages of Plaintiffs’ Amended Complaint address in meandering
fashion the process by which a portion of Plaintiffs’ property was acquired by eminent domain.
Approximately five pages detail the state court proceedings, including Plaintiffs’ allegations that
they were improperly denied a motion for change of judge in that case.
As this Court has previously noted, it construes “the complaints of pro se plaintiffs
liberally, to take care that the Rules of Federal Procedure do not serve merely as traps for the
unwary.” Maxberry v. ITT Tech. Inst., 2015 WL 416495, at *3-4 (S.D. Ind. 2015) (citing Marshall
v. Knight, 445 F.3d 965, 969 (7th Cir. 2006)). However, the Court is not required to vainly sift
through a complaint that is “sprawling, confusing, redundant—in short a mess.” Maxberry, 2015
WL 416495, at *4 (citing Fidelity Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 412 F.3d
745, 749 (7th Cir. 2005); Lindell v. McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003) (noting that if
a complaint’s lack of clarity makes it unintelligible, dismissal under Rule 8 is permitted)).
The Court spent considerable time and effort attempting to discern what legal claims
Plaintiffs are raising, and it sifted through a large volume of irrelevant information in its attempt
to do so. While “[f]at in a complaint can be ignored,” Bennett v. Schmidt, 153 F.3d 516, 517 (7th
Cir. 1998), a complaint must still adequately perform its notice function by alerting the defendant
as to the legal claims that are being levied against it. Plaintiffs appear to raise a challenge to the
process by which a portion of their property was acquired by eminent domain:


“Defendant’s 2012 determination ‘to maintain the current roadway area and widen
the roadway…to accommodate solid waste trucks’ and ‘to establish a permanent
right of way’ for a ‘roadway’ in a legally-platted residential subdivision, which
included a determination that ‘land acquisition will be necessary,’ deprived
Plaintiffs of their property, without due process of law. Plaintiffs were denied
notice of a public hearing; wherein DPW determined to maintain the private
driveway under the pretext that it was a public street, and DPW determined the
necessity of land acquisition, which included Lot #7; thereby denying Plaintiffs an
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opportunity to be heard and an opportunity to present every available defense.”
[Filing No. 34 at 18.]


“All of the aforesaid decisions were made behind closed doors, which deprived
Plaintiffs of their property rights, without due process of law.” [Filing No. 34 at
20.]



“Defendant’s published Notice of an offer to purchase to Plaintiffs as Co-Trustees,
who can be served personally, denied Plaintiffs of due process of law.” [Filing
No. 34 at 22.]



“Defendant did NOT make an effort to purchase the land, right-of-way, or
easement for the use intended: ‘to resurface Ritterskamp Court,’ did NOT establish
a proposed purchase price for the property, did NOT provide the owner of the
property with an appraisal or other evidence used to establish the proposed
purchase price, did NOT conduct good faith negotiations with Plaintiffs, as cotrustee title holders of the property. Having failed to make a good faith effort to
purchase Plaintiffs’ land, Defendant had no right to proceed upon a complaint in
condemnation.” [Filing No. 34 at 23.]

But Plaintiffs repeatedly argue in their briefing here that they do not raise a challenge to the
condemnation, and specifically disavow a takings claim. And while they claim to be raising a
substantive due process claim, they request the “return of their property” in relief. The Court
cannot make heads or tails of these allegations, and it cannot conclude that Defendants have been
put on notice of the claims against them. Under the circumstances present here, the Court
concludes that dismissal for failure to comply with Rule 8(a) is appropriate.
B. Failure to Exhaust
In the interest of completeness, and to draw the parties’ attention to a relevant Seventh
Circuit decision that was rendered after briefing was submitted here, the Court addresses
Defendants’ second argument in support of dismissal.
Defendants argue that Plaintiffs received a state court judgment by the Marion Superior
Court, “deeming Plaintiffs fully satisfied for the City’s appropriation of their land in the amount
of $7,500.” [Filing No. 37 at 2.] Defendants argue that Plaintiffs did not appeal this judgment,
thereby failing to exhaust their available state court remedies, and that this Court therefore lacks
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subject matter jurisdiction over this dispute.3 [Filing No. 37 at 2.] Plaintiffs respond that the Court
should refrain from adjudicating the exhaustion issue, as it is typically appropriate only after an
answer has been filed. [Filing No. 40 at 12.] Plaintiffs also allege that the state court judgment
against them is void. [Filing No. 34 at 37-38.]
The Fourteenth Amendment to the United States Constitution prohibits any State from
“depriv[ing] any person of life, liberty, or property without due process of law.” U.S. Const.
amend. XIV. In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172, 186-87 (1985), the Supreme Court “articulated a special ripeness doctrine for
constitutional property rights claims.” Forseth v. Village of Sussex, 199 F.3d 363, 368, 372 (7th
Cir. 2000). Under Williamson County, a plaintiff must demonstrate that (1) he received a final
decision from the relevant government entity; and (2) he has sought compensation through the
procedures the state has provided for doing so. See Lewis v. City of Jeffersonville, Ind., 2004 WL
1629741, at *4 (S.D. Ind. 2004) (citing Forseth, 199 F.3d at 372; Williamson County, 473 U.S. at
186-87).
This requirement has been commonly understood as one of subject matter jurisdiction,
because ripeness is an element of justiciability. However, in a case decided by the Seventh Circuit
after briefing had been submitted in this case (and therefore not addressed by the parties), the
Seventh Circuit clarified that the Williamson County “ripeness” requirement is not in fact
jurisdictional. Kolton v. Frerichs, 869 F.3d 532, 534 (7th Cir. 2017) (“The Supreme Court has
recently told us that Williamson County ‘is not, strictly speaking, jurisdictional.’ That reflects the
Court’s contemporary understanding of the difference between jurisdictional and ordinary

3

While Defendants do not cite a particular rule in support of dismissal, the Court construes this as
a motion raised under Fed. R. Civ. P. 12(b)(1).
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procedural rules. …After Horne we know that Williamson County does not diminish federal
courts’ adjudicatory competence.”) (citing Horne v. Department of Agriculture, 133 S. Ct. 2053,
2062 (2013)). Instead, the Seventh Circuit counsels, “[i]t may help to think of Williamson
County as a rule based on constitutional text rather than as a judge-made exhaustion requirement.
The Fifth Amendment does not proscribe takings, but rather takings without just compensation. A
takings claim therefore accrues only when the government refuses to pay.” Id. According to the
court, “Williamson County routes plaintiffs to state proceedings when it is uncertain whether the
state will pay.” Id.
It is well established in the Seventh Circuit that the “Williamson County exhaustion
requirement applies with full force to due process claims (both procedural and substantive) when
based on the same facts as a takings claim.” Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 961
(7th Cir. 2004) (citations omitted); see also Forseth, 199 F.3d at 370 (holding that substantive due
process claim that “falls within the framework for takings claims” is subject to exhaustion
requirement). However, § 1983 claims that are not based upon the same facts as a takings claim
are not subject to Williamson County, and are subject to the general rule that parties seeking relief
under § 1983 are not required to exhaust state law remedies. Behavioral Inst. of Ind., LLC v.
Hobart City of Common Council, 406 F.3d 926, 932 (7th Cir. 2005). While Kolton did not
specifically address non-takings due process claims, the Court sees nothing in that case that
displaces prior precedent regarding the application of Williamson County to due process claims.
Therefore, the first inquiry is whether Plaintiffs’ claim is a takings challenge, or whether it
is a bona fide § 1983 due process claim. To make this determination, the Seventh Circuit has
looked at the language in the complaint and the relief sought. See Behavioral Inst., 406 F.3d at
932. In this case, the Court simply cannot determine from the face of the Amended Complaint

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what type of claim Plaintiffs raise. That determination is made even more difficult by Plaintiffs’
briefing in response to Defendants’ Motion to Dismiss. As described above, Plaintiffs, for
example, make the following allegations that appear to raise a procedural due process challenge
regarding the taking of their property via eminent domain:


“Defendant’s 2012 determination ‘to maintain the current roadway area and widen
the roadway…to accommodate solid waste trucks’ and ‘to establish a permanent
right of way’ for a ‘roadway’ in a legally-platted residential subdivision, which
included a determination that ‘land acquisition will be necessary,’ deprived
Plaintiffs of their property, without due process of law. Plaintiffs were denied
notice of a public hearing; wherein DPW determined to maintain the private
driveway under the pretext that it was a public street, and DPW determined the
necessity of land acquisition, which included Lot #7; thereby denying Plaintiffs an
opportunity to be heard and an opportunity to present every available defense.”
[Filing No. 34 at 18.]

 “All of the aforesaid decisions were made behind closed doors, which deprived
Plaintiffs of their property rights, without due process of law.” [Filing No. 34 at
20.]


“Defendant’s published Notice of an offer to purchase to Plaintiffs as Co-Trustees,
who can be served personally, denied Plaintiffs of due process of law.” [Filing
No. 34 at 22.]



“Defendant did NOT make an effort to purchase the land, right-of-way, or
easement for the use intended: ‘to resurface Ritterskamp Court,’ did NOT establish
a proposed purchase price for the property, did NOT provide the owner of the
property with an appraisal or other evidence used to establish the proposed
purchase price, did NOT conduct good faith negotiations with Plaintiffs, as cotrustee title holders of the property. Having failed to make a good faith effort to
purchase Plaintiffs’ land, Defendant had no right to proceed upon a complaint in
condemnation.” [Filing No. 34 at 23.]

These allegations all appear to raise procedural due process challenges to the taking of Plaintiffs’
property. However, Plaintiffs specifically disavow any takings-related challenge in their briefing
here. [Filing No. 40 at 15 (“Plaintiffs’ substantive due process claim is not a takings claim…”).]
They argue that they raise instead a substantive, not procedural, due process challenge, involving
“violation of their Constitutional property rights caused by Defendant’s deprivation of Plaintiffs’
right to exclude others, right against trespass, right of quiet enjoyment, and legal right to access
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their private property in a platted residential subdivision.” [Filing No. 40 at 15.] However, in the
next sentence, Plaintiffs request the “return of their property” among the relief sought. [Filing No.
40 at 15.]
The Court cannot determine from the face of the Amended Complaint precisely what rights
Defendants have allegedly violated, and Plaintiffs’ briefing does not assist the Court in resolving
that question. Therefore, the Court cannot determine whether Plaintiffs raise a bona fide due
process challenge, or whether they raise a takings challenge disguised as a due process claim.
Moreover, the parties submitted their briefing prior to the Seventh Circuit’s ruling in Kolton, and
therefore did not have the benefit of briefing any impact that case may have in the instant suit. The
Court, therefore, denies Defendants’ Motion to Dismiss under Rule 12(b)(1).
C. Prejudice
Defendants argue that because Plaintiffs have “twice failed to plead their claims in a short
and plain manner,” the Court should grant their dismissal with prejudice. The Court declines to
do so, and will offer Plaintiffs one final opportunity to draft a complaint that meets the
requirements of Rule 8(a). The Court strongly cautions Plaintiffs that their Second Amended
Complaint, should they choose to file one, “must contain…a short and plain statement of the claim
showing that [they are] entitled to relief.” Fed. R. Civ. P. 8(a)(2).

If the second amended

complaint fails to comply with Rule 8, the Court will not give Plaintiffs another opportunity to
plead.
IV.
CONCLUSION
For the reasons described above, the Court GRANTS Defendants’ Motion to Dismiss,
[Filing No. 35], and DISMISSES Plaintiffs’ Amended Complaint, [Filing No. 34], without

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prejudice. Plaintiffs have thirty days to file a Second Amended Complaint if they intend to
continue to pursue this action.

Date: 10/11/2017

Distribution:
NANCY A. DAW
4110 Ritterskamp Court
Indianapolis, IN 46250-2271
STEPHEN L. HOBACK
4110 Ritterskamp Court
Indianapolis, IN 46250-2271
Thomas J.O. Moore
OFFICE OF CORPORATION COUNSEL
[e-mail]
Adam Scott Willfond
OFFICE OF CORPORATION COUNSEL
[e-mail]

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