DILLEY et al v. CARTER et al

Filing 124

ORDER on 84 Motion to Dismiss - Defendant Aqua of Indiana's motion to dismiss is GRANTED. Dkt. 84 . All claims against it are dismissed with prejudice. The clerk is directed to terminate Aqua Indiana as a defendant on the docket. SEE ORDER. Signed by Judge James Patrick Hanlon on 09/26/2024. (AAS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL J. BENNETT,

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Plaintiff,
v.
DENNIS REAGLE, et al.,
Defendants.

No. 1:23-cv-00523-JPH-KMB

ORDER ON MOTION TO DISMISS
Michael J. Bennett died after being exposed to water contaminated by
legionella while he was an inmate at Pendleton Correctional Facility ("PCF").
His estate has filed this case alleging that Defendants are responsible for Mr.
Bennett's death. See dkt. 64. Defendant Aqua Indiana, which managed the
water system that furnished water to PCF, has filed a motion to dismiss the
claims against it. Dkt. [84]. For the reasons below, the motion is GRANTED.
I.
Facts and Background
Because Defendant has moved for dismissal under Rule 12(b)(6), the
Court accepts and recites "the well-pleaded facts in the complaint as true."
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
In November 2021, while Mr. Bennett was an inmate at PCF, he became
seriously ill with symptoms including a deep cough, fever, profuse sweating,
delirium, fatigue, and lack of muscle control. Dkt. 64 at 5. He was eventually
taken to the hospital, where he died on December 3, 2021 "resulting from
exposure to lethal legionella bacteria." Id. at 6.
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Around that time, the water at PCF was contaminated with bacteria
including legionella. Id. at 7. Aqua Indiana, a private company, managed the
water system that provided water to PCF under a contract with the nearby
Town of Ingalls. Id. at 4. Mr. Bennett's estate alleges that "[u]pon information
and belief, Defendants Town of Ingalls 1 and Aqua Indiana failed to provide safe
potable water to PCF." Id. at 7.
Mr. Bennett's estate brought this action in March 2023. Dkt. 1. The
amended complaint raises Eighth Amendment and Indiana-law negligence
claims against several defendants, including Indiana Department of Correction
officials, medical providers at PCF, and Aqua Indiana. Dkt. 64. Aqua Indiana
has filed a motion to dismiss the claims against it for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). Dkt. [84].
II.
Rule 12(b)(6) Standard
Defendants may move under Federal Rule of Civil Procedure 12(b)(6) to
dismiss claims for "failure to state a claim upon which relief can be granted."
To survive a Rule 12(b)(6) 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)). A facially plausible claim is
one that allows "the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Id. In other words, a complaint "must
The Town of Ingalls has been voluntarily dismissed from this case. Dkt. 118; dkt.
120.
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allege enough details about the subject-matter of the case to present a story
that holds together," Bilek v. Fed. Ins. Co., 8 F.4th 581, 586 (7th Cir. 2021),
"but it need not supply the specifics required at the summary judgment stage."
Graham v. Bd. of Educ., 8 F.4th 625, 627 (7th Cir. 2021).
When ruling on a 12(b)(6) motion, the Court "accept[s] the well-pleaded
facts in the complaint as true, but legal conclusions and conclusory allegations
merely reciting the elements of the claim are not entitled to this presumption of
truth." McCauley, 671 F.3d at 616. "It is enough to plead a plausible claim,
after which a plaintiff receives the benefit of imagination, so long as the
hypotheses are consistent with the complaint." Chapman v. Yellow Cab Coop.,
875 F.3d 846, 848 (7th Cir. 2017).
Indiana substantive law governs the estate's negligence claim. See
Webber v. Butner, 923 F.3d 479, 480–81 (7th Cir. 2019). Absent a controlling
decision from the Indiana Supreme Court, the Court does its best to predict
how that court would rule on the issues of law. Mashallah, Inc. v. West Bend
Mutual Insurance Co., 20 F.4th 311, 319 (7th Cir. 2021). In doing so, the Court
may consider decisions from the Indiana Court of Appeals. See id.
III.
Analysis
A. Eighth Amendment claim
Mr. Bennett's estate alleged an Eighth Amendment cruel and unusual
punishment claim under 42 U.S.C. § 1983 against Aqua Indiana. Dkt. 64 at
10–11. In response to Aqua Indiana's motion to dismiss, however, the estate

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concedes that under current law, the § 1983 claim against Aqua Indiana must
be dismissed. Dkt. 100 at 5 n.1. This claim is therefore dismissed under that
concession.
B. Indiana-law negligence claim
Aqua Indiana argues that the estate has not plausibly pleaded a
negligence claim against it because the estate has not alleged facts supporting
a duty that Aqua Indiana owed Mr. Bennett. Dkt. 85 at 10–11. The estate
responds that Aqua Indiana had a duty "to provide safe potable water to PCF."
Dkt. 100 at 7–9. The estate focuses on allegations that Aqua Indiana failed to
test the water it supplied to PCF. Id.
The parties therefore appear to agree that Aqua Indiana had no duty to
maintain PCF's plumbing or otherwise take any action within the facility. See
dkt. 85 at 10–11; dkt. 100 at 7–9. To the extent that the estate argues
otherwise, it cannot succeed because Aqua Indiana did not owe a duty within
PCF under Indiana law, and the estate does not argue that a new duty should
be recognized. See KMC, LLC v. E. Heights Utils., Inc., 144 N.E.3d 773, 776
(Ind. Ct. App. 2020) ("[T]here is no duty on the part of a public utility . . . to
inspect the devices, apparatus, or fixtures of a responsible patron on the
patron's property, located at a point beyond the meter, which is the point of
delivery of the utility."); cf. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 454–
56 (Ind. 2011) (holding that the government's duty to exercise reasonable care
to keep streets safe does not apply "[a]bsent ownership, maintenance, or
control of the county roadway"). Aqua Indiana therefore did not breach a duty
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by allegedly "failing to appropriately and effectively respond to the legionella
outbreak" within PCF. See dkt. 64 at 13.
As for any duty before the water was delivered to PCF, the estate alleges
that Aqua Indiana owed Mr. Bennett a "duty of care" that it breached in four
ways. Dkt. 100 at 5.
The first three of those alleged breaches relate to failing to mitigate,
protect, and warn inmates of a "known water contamination," "namely
legionella pneumophila, helicobacter pylori, and/or other bacteria that pose a
risk to human health." Id. But the only alleged "known" hazard occurred
within PCF. See dkt. 64 at 8-9 (allegations about IDOC Defendants' knowledge
of contaminated water within PCF). While the estate alleges—with no factual
heft—that Aqua Indiana "failed to provide safe potable water to PCF," it does
not allege that the bacterial contamination existed before the water was
delivered to PCF or that any such contamination was "known" before the water
left Aqua Indiana's control. Dkt. 64 at 7. As explained above, Aqua Indiana
had no duty to mitigate, protect, or warn inmates of water contamination that
developed after the water entered PCF. KMC, 144 N.E.3d at 776 (holding that
public utility has no duty to inspect plumbing beyond the meter "which is the
point of delivery of the utility"); Price, 954 N.E.2d at 454–56.
Finally, the complaint alleges that Aqua Indiana generally "fail[ed] to
provide preventative methods to reduce the risk of foreseeable harm." Dkt. 64
at 13. But the estate cites no legal support for a duty that required Aqua
Indiana to provide preventative measures. See dkt. 100 at 5-8. The duty is
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instead "to supply enough water of good quality" to the facility. KMC, 144
N.E.3d at 776. Yet the estate has not alleged that the bacterial contamination
at issue was in the water before it entered PCF—much less that Aqua Indiana
knew or should have known of any such contamination. See dkt. 64 at 13.
The allegations against Aqua Indiana are therefore too vague and conclusory to
meet the burden of "provid[ing] some specific facts" to support a negligence
claim. McCauley, 671 F.3d at 616; Thomas v. Neenah Joint Sch. Dist., 74 F.4th
521, 523 (7th Cir. 2023) ("Threadbare recitals of a cause of action, supported
by mere conclusory allegations, do not suffice."). The estate has failed to allege
"enough details about the subject-matter of the case to present a story that
holds together." McCauley, 671 F.3d at 616. The negligence claim against
Aqua Indiana therefore must be dismissed.
IV.
Conclusion
Defendant Aqua of Indiana's motion to dismiss is GRANTED. Dkt. [84].
All claims against it are dismissed with prejudice. The clerk is directed to
terminate Aqua Indiana as a defendant on the docket. 2
SO ORDERED.
Date: 9/26/2024

The estate mentions in a footnote that it "reserves all rights to amend [its] pleadings."
Dkt. 100 at 5 n.1. In order to amend the complaint, the estate would have to show
good cause for extending the deadline for motions for leave to amend the pleadings
under Federal Rule of Civil Procedure 16(b)(4) and that "justice . . . requires" leave to
amend under Federal Rule of Civil Procedure 15(a)(2).
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Distribution:
All electronically registered counsel

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