ANTEY v. DONAHUE et al

Filing 22

ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings. Court GRANTS Defendants' motion for judgment on the pleadings on Plaintiff's claims under Count I against Officer Donahue and the City of Evansville, an d Plaintiff's claim under Count II against Officer Donahue; thus, these claims are DISMISSED with prejudice. Motion for judgment on the pleadings on Count II of Plaintiff's Complaint as to the City of Evansville is DENIED. Signed by Judge Tanya Walton Pratt on 2/7/2013. (SMD) (Main Document 22 replaced on 2/7/2013) (SMD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
ROBIN ANTEY Personal Representative of
the Estate of H.G.,
Plaintiff,
v.
OFFICER KEVIN M. DONAHUE, and the
CITY OF EVANSVILLE, INDIANA,
Defendants.
JEFFREY A. GREEN,
Intervenor.

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Case No. 3:12-cv-00085-TWP-WGH

ENTRY ON MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff Robin Antey (“Plaintiff”), as Personal Representative of the estate of H.G.,
brought this action against Defendants Officer Kevin M. Donahue (“Officer Donahue”) and the
City of Evansville (the “City”) (collectively, “Defendants”), under 42 U.S.C. § 1983 (“§ 1983”)
for violations of the substantive due process clause of the Fourteenth Amendment, as well as
under state law for gross negligence. (Dkt. 1.) Defendants have filed a Motion for Judgment on
the Pleadings on all of Plaintiff’s counts. (Dkt. 13.) For the reasons set forth below, the
Defendants’ motion is GRANTED in part and DENIED in part.
I. BACKGROUND
The following facts are from Plaintiff’s Complaint and are accepted as true for purposes
of this Motion.

On June 24, 2012, H.G. suffered fatal injuries resulting from a domestic

disturbance at a residence in the City of Evansville. Plaintiff’s Complaint alleges that Officer
Donahue, while performing his duties as an officer of the Evansville Police Department,

responded to an incident at the location where there were “clear signs of criminal activity” and
Officer Donahue was made aware that a domestic disturbance had transpired. Dkt. 1 at 3 ¶ 12.
However, Officer Donahue remained outside in his car and did not enter the residence, and later
left the scene without investigating what was occurring inside the apartment. Several hours later,
officers were dispatched to the residence for a “welfare check” where they found H.G. dead
inside the apartment. Plaintiff alleges that H.G. was still alive at the time Officer Donahue failed
to investigate the domestic disturbance, and that Officer Donahue was deliberately indifferent to
the serious medical needs of H.G., which caused “unnecessary and wanton infliction of pain”
upon H.G., resulting in a denial of due process of the laws. Dkt. 1 at 4 ¶ 16. Plaintiff also
alleges that Officer Donahue’s actions constitute gross negligence on his part and on the part of
the City. Dkt. 1 at 4 ¶¶ 20-21.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the
parties have filed the complaint and answer. Rule 12(c) motions are reviewed under the same
standard as a motion to dismiss under 12(b)(6). Frey v. Bank One, 91 F.3d 45, 46 (7th Cir.
1996). Like a Rule 12(b)(6) motion, the court will grant a Rule 12(c) motion only if “it appears
beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.” N.
Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998) (quoting
Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993)). The facts in the
complaint are viewed in light most favorable to the non-moving party; however, the court is “not
obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or to
assign any weight to unsupported conclusions of law.” Id. (quoting R.J.R. Serv., Inc. v. Aetna
Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989)). “As the title of the rule implies, Rule 12(c)

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permits a judgment based on the pleadings alone. . . . The pleadings include the complaint, the
answer, and any written instruments attached as exhibits.” Id. (internal citations omitted).
III. DISCUSSION
Defendants argue that Plaintiff has not stated a claim under § 1983 because Officer
Donahue and the Evansville Police Department did not owe a duty to H.G., thus they did not
deprive her of a constitutionally protected right. Defendants further argue that Officer Donahue
cannot be held personally liable under the Indiana Tort Claims Act (“ITCA”), and also that
Plaintiff’s state claim is barred because she failed to timely file the required notice of tort claim.
A.

Violation of Constitutional Rights
An actionable claim for relief under § 1983 requires a plaintiff to plead (1) a deprivation

of a right secured by the constitution or laws of the United States (2) caused by an action taken
under color of state law. Hernandez v. City of Goshen, Ind., 324 F.3d 535, 537 (7th Cir. 2003).
Plaintiff’s Complaint alleges that Officer Donahue’s actions were taken under color of state law;
however, the issue is whether she has properly pleaded facts showing that Defendants deprived
H.G. of a constitutionally protected right. Plaintiff alleges that Officer Donahue, by and through
the Evansville Police Department, was deliberately indifferent to the “serious medical needs” of
H.G., causing “unnecessary and wanton infliction of pain” and violated H.G.’s rights secured by
the Constitution of the United States, as his conduct was “cruel and unusual and resulted in the
denial of due process of the laws.” Dkt. 1 at 4 ¶ 16.
The Supreme Court has held that the state’s failure to protect a person from another
private citizen does not violate the due process clause. DeShaney v. Winnebago Cnty. Dep’t. of
Soc. Svcs., 489 U.S. 189, 202-03 (1989). Additionally, the Seventh Circuit has made it clear that
a city police department has no affirmative duty to a person to investigate a threat from a private

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person, and the city’s failure to investigate credible threats of private violence is not
unconstitutional. Hernandez, 324 F.3d at 538. The only exception exists where the state actor’s
conduct created or exacerbated the danger faced by the victim. Windle v. City of Marion, Ind.,
321 F.3d 658, 660-61 (7th Cir. 2003).
In Windle, the Seventh Circuit determined that police officers’ inaction did not create or
exacerbate danger to the victim.

In that case, officers of the Marion Police Department

intercepted cellular telephone conversations between what turned out to be a middle school
teacher and a minor student that evidenced an ongoing sexual relationship. Police initially
believed the conversations were between two adult women, but even after discovering that one
of the participants was a minor, they did not take any action until the conversation indicated that
the child was possibly suicidal. Plaintiff brought a § 1983 suit against the officers and the city,
alleging that her due process rights were violated because they failed to protect her from being
molested by the teacher. The court held that this inaction did nothing to create a danger or make
the danger to the child any worse, thus no constitutional violation occurred.

Id. at 662.

See

DeShaney, 489 U.S. at 201 (“[T]he State had no constitutional duty to protect Joshua against his
father’s violence, its failure to do so—though calamitous in hindsight—simply does not
constitute a violation of the Due Process Clause.”).
Likewise, in this case, Officer Donahue and the Evansville Police Department did
nothing to create or exacerbate the danger to H.G. The “unnecessary and wanton infliction of
pain” was not caused by the actions of Officer Donahue, but rather a private citizen. Even
assuming that Officer Donahue knew that a fatal assault had occurred or was about to occur in
the residence, this case is still not distinguishable from Windle, in which the officers knew for
certain that criminal activity was being perpetuated against a child. Officer Donahue had no

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constitutional duty to H.G. to investigate the domestic disturbance, to prevent the assault that
lead to her death, or attend to her medical needs if the assault had already occurred. “[A] state
actor’s failure to protect private persons from injuring each other does not establish a
constitutional violation.” Hernandez, 324 F.3d at 539. Plaintiff’s Complaint alleging that
Officer Donahue’s inaction was the cause of the harm to H.G. cannot support a claim that he and
the City violated a constitutionally protected right; therefore, the Court GRANTS Defendants’
motion for judgment on the pleadings on Count I of Plaintiff’s Complaint.
B.

Gross Negligence
Plaintiff also asserts state law claims of gross negligence against Defendants. Plaintiff’s

tort claims are subject to the Indiana Tort Claims Act’s procedural and substantive requirements.
Ind. Code § 34-13-3-1 et seq.; Keri v. Bd. of Trus. of Purdue Univ., 458 F.3d 620, 648 (7th Cir.
2006). “Compliance with the ITCA is a prerequisite to pursuing a tort claim against a state
[actor] . . . regardless of whether suit is filed in state or federal court.” Keri, 458 F.3d at 648.
1.

Claim against Officer Donahue

Plaintiff brings a gross negligence claim against Officer Donahue individually for actions
that he committed while performing his duties as an officer of the Evansville Police Department.
However, the ITCA prohibits tort suits against government employees personally for conduct
carried out within the scope of their employment. I.C. § 34-13-3-5(b). Because Plaintiff’s
Complaint alleges that Officer Donahue was acting within the scope of his employment, she
cannot maintain a tort action for gross negligence against him personally. Therefore, the Court
GRANTS Defendants’ motion for judgment on the pleadings on Count II of Plaintiff’s
Complaint as to Officer Donahue.

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2.

Claim against the City of Evansville

Defendants assert that Plaintiff failed to timely file the required notice of tort claim under
the ITCA, which provides that a claim against a political subdivision is barred unless notice is
filed with the governing body of that political subdivision within 180 days from when the loss
occurs. I.C. § 34-13-3-8. Plaintiff’s Complaint simply states that notice pursuant to the ITCA
was given to the Defendants, but does not indicate the dates on which the notice was sent or
received. Dkt. 1 at 3 ¶ 9. Defendants attempt to provide the Court with a copy of the tort claim
notice filed by Plaintiff as evidence that the notice was filed after the 180-day notice period.
Dkt. 14-1. Effectively, Defendants are asking the Court to convert their 12(c) motion into a
motion for summary judgment by presenting evidence outside of the pleadings. See Fed. R. Civ.
P. 12(d).

The decision whether to convert a motion to dismiss into a motion for summary

judgment is left to the discretion of the court. See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th
Cir. 1989). The Court declines to do so.
The purpose of a 12(c) motion is to test the sufficiency of the plaintiff’s complaint and
identify defects in a plaintiff’s claim, not the presence of a defendant’s affirmative defense.
Taleyarkhan v. Purdue Univ., 837 F. Supp. 2d 965, 969 (N.D. Ind. 2011). “[P]laintiffs need not
anticipate and attempt to plead around all potential defenses. Complaints need not contain any
information about defenses and may not be dismissed for that omission.” Xechem, Inc. v.
Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). Only where a plaintiff admits all
of the elements of an impenetrable defense, thus pleading herself out of court, may a complaint
that otherwise states a claim be dismissed; however, omission of facts from her complaint which
would ultimately defeat an affirmative defense does not justify dismissal. Id.; U.S. Gypsum Co.
v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003).

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The assertion that a plaintiff failed to comply with the ITCA notice requirement is an
affirmative defense. Taleyarkhan, 837 F. Supp. 2d at 968 (citing Brown v. Alexander, 876
N.E.2d 376, 383-84 (Ind. Ct. App. 2007)).

In this case, Plaintiff has not pleaded herself out of

court because her Complaint does not admit that her ITCA notice was filed after the notice
period. The Court declines to consider the evidence included with Defendants’ Motion, as the
Plaintiff has not been afforded the opportunity to properly respond to a motion for summary
judgment and there may be other circumstances under which the notice period may be tolled that
are outside of the consideration of this Court under the present 12(c) motion. See White v.
Stuben Cnty., Ind., No. 1:11-CV-019, 2011 WL 4496504, at *14 (N.D. Ind. Sept. 27, 2011)
(explaining circumstances under which ITCA notice period may be tolled). Therefore, the
motion for judgment on the pleadings on Count II of Plaintiff’s Complaint as to the City of
Evansville is DENIED.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment on the pleadings (Dkt. 13) is
GRANTED in part and DENIED in part. The Court GRANTS Defendants’ motion for
judgment on the pleadings on Plaintiff’s claims under Count I of her Complaint against Officer
Donahue and the City of Evansville, and Plaintiff’s claim under Count II of her Complaint
against Officer Donahue; thus, these claims are DISMISSED with prejudice. The motion for
judgment on the pleadings on Count II of Plaintiff’s Complaint as to the City of Evansville is
DENIED.
SO ORDERED
02/07/2013
Date: _____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
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DISTRIBUTION:

JEFFREY A GREEN
3409 Kensington Avenue
Evansville, Indiana 47711
John Andrew Goodridge
John Andrew Goodridge Law Office
[e-mail]
Keith W. Vonderahe
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]
Mary Lee Schiff
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]
Robert L. Burkart
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]

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