BECKER v. CITY OF EVANSVILLE et al
Filing
56
ORDER granting in part and denying in part 44 Motion for Judgment on the Pleadings. See order for specifics on which claims are DISMISSED and which claims are left in tact. Within 15 days of the issuance of this order, Becker may move for leave t o amend his Complaint to name presently unidentified EPD officers as Defendants and state a plausible claim for relief against the City under § 1983. If Becker fails to timely amend his Complaint in either respect, the Magistrate Judge will order that the corresponding claim be dismissed with prejudice and without further notice. Signed by Magistrate Judge William G. Hussmann, Jr., on 4/23/2014. (NRN) Modified on 4/23/2014 (NRN).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
JAMIE BECKER,
)
)
Plaintiff,
)
)
v.
)
)
CITY OF EVANSVILLE,
)
UNKNOWN EVANSVILLE POLICE
)
DEPARTMENT OFFICERS, and
)
ZACHARY ELFREICH, individually and )
as an Officer of the Evansville Police
)
Department,
)
)
Defendants.
)
3:12-cv-182-WGH-TWP
ENTRY ON DEFENDANT’S MOTION
FOR JUDGMENT ON THE PLEADINGS
This matter is before the Magistrate Judge on the Defendants’ Motion for
Judgment on the Pleadings (Filing No. 44), the parties’ consent (Filing No. 8;
Filing No. 9), and Judge Pratt’s Order of Reference (Filing No. 11). The motion
is fully briefed. (See Filing No. 45; Filing No. 49; Filing No. 50; Filing No. 54;
Filing No. 55.) The Magistrate Judge, having considered the motion, the
parties’ filings, and relevant law, and being duly advised, hereby GRANTS the
motion in part and DENIES it in part.
I.
Background
On March 22, 2011, Evansville police arrested Plaintiff Jamie Becker at
his home subject to a warrant. Becker’s Complaint alleges the following
sequence of events.
Officers of the Evansville Police Department (EPD)—including a canine
unit—were greeted at the door by Becker’s mother and followed her into the
home when she called up the stairs to Becker that police were present with a
warrant for his arrest. (Filing No. 1-1 at ¶¶ 9–10.) Becker, who had been
sleeping, yelled in response that he was dressing and would be downstairs in a
moment. (Id. at ¶¶ 7, 10.) Becker then dressed and proceeded from his
bedroom to the staircase. (Id. at ¶ 11.) As Becker approached the stairs, an
EPD officer—without warning or provocation—unleashed a police dog, which
viciously attacked Becker. (Id.) An officer then threw Becker down two stairs
face first, placed his knee in Becker’s back, and held Becker’s hands behind
his back—all while the dog continued to bite Becker’s leg. (Id. at ¶ 12.) Becker
claims that the dog chewed on his leg for approximately one minute and that
he was severely and permanently injured as a result of the attack. (Id. at ¶¶
13–14.)
In October of 2012, Becker initiated this action in state court, accusing
the City of Evansville, the EPD, former Police Chief Brad Hill, EPD Officer Tim
Nussmeier, and unidentified EPD officers of battery, negligence, and negligent
supervision under Indiana law. (See Filing No. 1-1.) Becker also raised claims
under 42 U.S.C. § 1983, alleging that the Defendants used excessive force in
violation of his Fourth Amendment right to be free from unreasonable seizures.
(See Filing No. 1-1.) The Defendants promptly removed the action to this
Court. (See Filing No. 1.) In January of 2013, the Magistrate Judge—by the
parties’ agreement— dismissed the EPD, Chief Hill, and Officer Nussmeier from
2
the action and added Officer Zachary Elfreich as the defendant accused of
unleashing the police dog. (See Filing No. 13; Filing No. 15.)
II.
Legal Standard
“A motion for judgment on the pleadings under Rule 12(c) of the Federal
Rules of Civil Procedure is governed by the same standards as a motion to
dismiss for failure to state a claim under Rule 12(b)(6).” Adams v. City of
Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014). Therefore, the Magistrate
Judge should consider only the allegations presented in the Complaint. Wilson
v. Price, 624 F.3d 389, 391 n.1 (7th Cir. 2010) (citation omitted). The
Magistrate must treat all well-pled allegations in the Complaint as true and
draw all inferences in Becker’s favor. Bielanski v. County of Kane, 550 F.3d
632, 633 (7th Cir. 2008) (citations omitted).
To avoid dismissal, Becker need not have advanced detailed factual
allegations, but only “a short and plain statement of the claim showing that
[he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Pisciotta v. Old Nat’l Bancorp,
499 F.3d 629, 633 (7th Cir. 2007). However, his allegations must “‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it
rests,’” and they must “‘raise a right to relief above the speculative level.’”
Pisciotta, 499 F.3d at 633 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This means the
Complaint must enable the Magistrate to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
3
III.
Discussion
The Defendants argue that Becker’s Complaint is deficient in five
respects. The Magistrate Judge addresses each issue in turn.
A. Becker may proceed in his claims against unidentified officers.
Becker has raised claims against “unknown officer[s] of the Evansville
Police Department” whose identities he has hoped to uncover through
discovery. (E.g., Filing No. 1-1 at ¶¶ 26, 30, 42.) The Defendants offer dictum
for the proposition that pleadings against unidentified defendants fail as a
matter of law. See Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (“We
note in passing that it is pointless to include lists of anonymous defendants in
federal court; this type of placeholder does not open the door to relation back
under Fed. R. Civ. P. 15 . . . nor can it otherwise help the plaintiff”). The
Defendants further argue that Becker should not be granted leave to amend his
Complaint to reflect any officers identified through discovery because the
deadline to do so under the case management was April 1, 2013. (See Filing
No. 14 at ¶ III(D).)
Although the Magistrate Judge values adherence to the case
management plan, Federal Rule of Civil Procedure 15(a)(2) instructs courts to
“freely give leave [to amend pleadings] when justice so requires.” The Seventh
Circuit has suggested that courts should allow amendment absent a showing
of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies,
undue prejudice, or futility. See Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010). The Defendants may offer such a showing when Becker moves
4
for leave to amend his Complaint, but the Magistrate declines to dismiss
Becker’s claims against unidentified defendants at this stage.
This being said, Becker cannot wait until the moment of trial to identify
all his Defendants. Accordingly, he may move for leave to amend his
Complaint to identify new EPD officers as defendants within 15 days of the
issuance of this order. If Becker fails to timely move for leave to amend his
Complaint, the Magistrate Judge will dismiss all claims against unidentified
officers with prejudice and without further notice. The Magistrate
acknowledges that a discovery dispute remains unresolved in this matter and
may reconsider this deadline if Becker can demonstrate that the Defendants
have wrongly withheld information that would have enabled him to more
quickly identify his yet-unnamed officers.
B. The parties have agreed to dismissal of Counts II and III against
Defendant Elfreich in his individual capacity.
Counts I, II, and III of the Complaint accuse Defendant Elfreich (and the
remainder of the Defendants) of battery, negligent supervision, and negligence.
(See Filing No. 1-1 at ECF ¶¶ 23–34.) The Indiana Tort Claims Act (ITCA)
grants government employees immunity for actions they commit within the
scope of their employment, Ind. Code § 34-13-3-5(b), but it does not immunize
actions that are “malicious” or “willful and wanton,” Ind. Code § 34-13-35(c)(3)–(4). The parties have agreed that the ITCA protects Officer Elfreich (in
his individual capacity) against the negligence claims but not the battery
claims. (See Filing No. 50 at ECF pp. 1–3; Filing No. 54 at ECF p. 3.)
Accordingly, the Magistrate finds Counts II and III must be dismissed to the
5
extent they would hold Officer Elfreich liable in his individual capacity, but
Becker may proceed against Officer Elfreich on Count I.1
C. Becker may proceed in his state law claims against the City.
Becker asserts the same state law claims—battery, negligent supervision,
and negligence—against the City. The Defendants argue that the negligent
supervision and negligence claims are barred by the ITCA, which grants
governmental entities immunity for losses resulting from the “enforcement of
. . . a law . . . unless the act of enforcement constitutes false arrest or false
imprisonment.” Ind. Code § 34-13-3-3(8)(A). The Defendants concede in their
reply brief that the Indiana Supreme Court has refused to extend the ITCA’s
law-enforcement-immunity provision to claims of excessive force and that
Becker’s battery claim therefore must survive. (See Filing No. 50 at ECF p. 3
(applying Wilson v. Isaacs, 929 N.E.2d 200, 203–204 (Ind. 2010)).) They
maintain, however, that the City is entitled to immunity as to Counts II and III.
The Indiana Supreme Court derived its holding in Wilson from its earlier
decision in Patrick v. Miresso. See Wilson, 929 N.E.2d at 203–04. In Patrick,
the court held that the ITCA’s law enforcement immunity did not protect the
City of Gary or its police officers from a negligence claim by a third party struck
by a police car that had been apprehending a fugitive. Patrick v. Miresso, 848
N.E.2d 1083, 1084, 1086–87 (Ind. 2006). The Patrick court reasoned that a
The Magistrate Judge finds no reason the ITCA should not apply the same way to
any additional EPD officers Becker is able to identify. Therefore, should Becker move
for leave to name additional officers, he must either omit them from Counts II and III
or explain why negligence claims against them should be treated different from
negligence claims against Officer Elfreich.
1
6
separate provision of Indiana law created a “statutory duty to operate
emergency vehicles ‘with due regard for the safety of all persons’” and that the
statutory duty trumped the ITCA. Id. at 1087 (quoting Ind. Code § 9-21-18(d)(1)). Using the same approach, the Wilson court reasoned that a separate
provision of Indiana law created a statutory duty for governments and their law
enforcement officers to use only “reasonable force” in effecting arrests and that
the statutory duty trumped the ITCA’s law-enforcement immunity. See Wilson,
929 N.E.2d at 203–04 (applying Ind. Code § 35-41-3-3(b)).
The Magistrate Judge finds no reason to distinguish between intentional
torts and negligence when dealing with the ITCA’s law-enforcement-immunity
provision in an excessive force case. First, although the Wilson court stated
only that an officer who uses excessive force “may commit the torts of assault
and battery,” id. at 203, the opinion does not suggest negligence was raised in
that case. Second, Wilson was based on Patrick, which allowed a negligence
claim to proceed because of a duty to drive “‘with due regard for the safety of all
persons.’” Patrick, 848 N.E.2d at 1087 (quoting Ind. Code § 9-21-1-8(d)(1)).
That statutory language does not inherently suggest a right of action in
negligence any more than the use-of-force statute’s imposition of a duty to use
no more than “reasonable force.” See Ind. Code § 35-41-3-3(b) (emphasis
added) (as applied in Wilson, 929 N.E.2d at 203–04). Third, the foundation of
any negligence claim is a duty to act reasonably. See, e.g., Ind. Model Civ. Jury
Instruction 1107 (2012 Ed.) (“Negligence is the failure to use reasonable care”)
(citing, e.g., S. Ry. Co. v. Harpe, 58 N.E.2d 346, 348 (Ind. 1944)). Accordingly,
7
if a duty to use no more than reasonable force creates any cause of action, it
would seem to create a cause of action in negligence. Finally, the ITCA’s lawenforcement-immunity provision does not include an exception for malicious or
willful and wanton conduct like its personal-capacity-immunity provision.
Compare Ind. Code § 34-13-3-3(8) to Ind. Code § 34-13-3-5(b). This suggests
that the law-enforcement-immunity provision should apply evenly to claims of
negligence and intentional torts where excessive force is alleged.
This conclusion is not affected by the Defendants’ invocation of City of
Anderson v. Davis. (See Filing No. 50 at ECF p. 2; Filing No. 55 at ECF p. 2.)
In Davis, the Indiana Court of Appeals held that a municipality was immune
from a negligence claim by one of its own police officers, who was attacked and
injured by a police canine that had been unleashed to search for a suspect.
743 N.E.2d 359, 364–65 (Ind. Ct. App. 2001). The court explained that
allowing negligence claims to proceed where law-enforcement immunity might
otherwise apply “would render the act largely meaningless. It is, after all, the
Tort Claims Act.” Id. at 365. But, in Patrick, the Indiana Supreme Court later
discarded any notion that the ITCA’s law-enforcement-immunity provision
always protects municipalities from negligence suits. See 848 N.E.2d at 1086–
87. And, in Wilson, it held that law-enforcement immunity does not apply to
unreasonable uses of force. See 929 N.E.2d at 203–04. Therefore, whatever
remains of Davis would seem negated by Becker’s allegations that the City
negligently allowed its officers to use unreasonable force in arresting him.
8
For those reasons, the Magistrate Judge infers that the Indiana Supreme
Court would not distinguish between negligence and intentional torts when
determining the reach of the ITCA’s law-enforcement-immunity provision in
excessive force cases. Therefore, the Magistrate declines at this stage to order
dismissal of Becker’s state law claims against the City.
D. Becker has withdrawn his claims against Officer Elfreich in his
official capacity.
The parties agree that claims against a public employee in his official
capacity amount to claims against the employer. (See Filing No. 45 at ECF p. 2
(citing Crawford v. City of Muncie, 655 N.E.2d 614, 621 (Ind. Ct. App. 1995));
Filing No. 49 at ECF p. 5.) Becker therefore has withdrawn his claims against
Officer Elfreich in his official capacity, as they would be duplicative of his
claims against the City. Accordingly, the Magistrate Judge orders dismissal of
any claim against Officer Elfreich in his official capacity. This does not affect
the viability of Becker’s claims against the City, which the Magistrate addresses
at length below.2
E. Counts IV, V, and VI must be dismissed as to the City, but Becker
may amend his Complaint as to these Counts.
In Count IV of his Complaint, Becker accuses all the Defendants of
acting under color of state law to violate his Fourth and Fourteenth
Amendment rights by using excessive force. (Filing No. 1-1 at ¶¶ 35–39.) In
Again, the Magistrate Judge finds no reason this rule should not apply the same way
to any additional EPD officers Becker is able to identify. Therefore, should Becker
move for leave to name additional officers, he must either omit claims against them in
their official capacities or explain why they should be treated different from claims
against Officer Elfreich.
2
9
Count V, Becker accuses the City of violating the same rights by adopting and
implementing “careless and reckless policies, customs, or practices that
included, among other things, the use of canine animals in the effectuation of
arrest.” (Id. at ¶¶ 41–44.) And, in Count VI, Becker accuses the City of
violating the same rights by adopting “policies, pursuant to practices or
customs within the Evansville Police Department that allow, among other
things, the use of excessive force when other and more reasonable and less
drastic measures are available.” (Id. at ¶¶ 45–48.) The Defendants move the
Court to dismiss these claims against the City because the Complaint describes
a single event—Becker’s arrest on March 22, 2011—and contains no specific
allegations about any EPD policy, practice, or custom. (See Filing No. 45 at
ECF pp. 3–5.)3
The Complaint states the following allegations concerning the City’s
policies, practices, and customs:
1.
. . . Action is also brought against the City of Evansville for its
failure to properly train and supervise the individual
defendants in the proper use of force and its establishment of
policies, procedures, practices, and customs regarding arrests
that result in the excessive use of force.
...
15. Defendants [Elfreich] and the other unknown officers of the
Evansville Police Department had no adequate training
In its brief, the Defendants suggest that, to the extent Count IV asserts a claim
against the City, it should be dismissed on the same grounds as Counts V and VI.
(See Filing No. 45 at ECF p. 3.) In its reply brief, the Defendants speak only to Counts
V and VI. (See Filing No. 50 at ECF pp. 4–5.) The Magistrate Judge finds that the
same reasoning would apply to all three counts and therefore addresses them
collectively.
3
10
regarding the use of reasonable force in the effectuation of an
arrest.
16. Defendants Brad Hill and the City of Evansville failed to
promulgate and/or implement adequate policies, procedures
and customs which led to the use of excessive and
unreasonable force against the Plaintiff.
...
18. The Defendants Brad Hill and City of Evansville failed to
adequately supervise the Defendants [Elfreich] and his K-9
Unit and the other unknown officers of the Evansville Police
Department.
...
41. . . . Defendant City of Evansville implicitly and/or explicitly
adopted and implemented careless and reckless policies,
customs or practices that included, among other things, the
use of canine animals in the effectuation of arrest.
42. That the failure of the Chief of Police, Brad Hill, and the City of
Evansville to adequately train and supervise Defendants
[Elfreich] and other unknown officers of the Evansville Police
Department regarding the proper use of a canine in the
effectuation of an arrest, amounts to the deliberate indifference
to the rights of the Plaintiff to be free from excessive force and
unreasonable seizures under the 4th and 14th Amendments to
the United States Constitution.
...
46. Defendant City of Evansville has adopted policies pursuant to
practices or customs within the Evansville Police Department
that allow, among other things, the use of excessive force when
other and more reasonable and less drastic measures are
available.
(Filing No. 1-1.)
“In litigation under § 1983, a municipality is not vicariously liable for the
constitutional torts of its employees but is answerable only for the
consequences of its policies.” Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001)
11
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). To prevail on a §
1983 claim against the City, Becker must prove that “the unconstitutional act
complained of is caused by: (1) an official policy adopted and promulgated by
its officers; (2) a governmental practice or custom that, although not officially
authorized, is widespread and well settled; or (3) an official with final policymaking authority.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303
(7th Cir. 2009) (citing Monell, 436 U.S. at 690; Valentino v. Vill. of S. Chicago
Heights, 575 F.3d 664, 675 (7th Cir. 2002)). “To state a claim against a
municipality under § 1983, a plaintiff must identify a municipal policy or
custom that caused the injury.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751,
765 (7th Cir. 2006) (citing Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397,
403–04 (1997); Monell, 436 U.S. at 694). A single unconstitutional act can
serve as a basis for municipal liability under § 1983, but only if “proof of the
incident includes proof that it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a municipal policymaker.”
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (as cited in Filing
No. 54 at ECF p. 5). And, “[b]oilerplate allegations of a municipal policy,
entirely lacking in any factual support that a city policy does exist, are
insufficient.” Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 202 (7th Cir.
1985) (applying Tuttle, 471 U.S. 808, 823–24).
These segments of Becker’s Complaint fail to set forth a plausible claim
for relief against the City. After Chief Hill’s dismissal from this suit, the
Complaint cannot be read as alleging that an official with final policy-making
12
authority caused Becker’s injuries. And, although Counts IV, V, and VI allege
that Becker’s injuries were caused by a policy, practice, or custom of the EPD,
they do not tell what policy, practice, or custom is in question. Moreover,
because the Complaint describes a single event, the Magistrate Judge is unable
to ascertain a policy, practice, or custom from the facts alleged in the
Complaint.
Consequently, Becker’s allegations fall short of Rule 8’s plausibility
threshold. Paragraphs 1, 16, 41, and 46 of the Complaint generally allege that
the City either implemented policies that resulted in an excessive use of force
against Becker or failed to implement policies that would have prevented an
excessive use of force. But, the Complaint includes no factual allegations
about a specific policy, practice, or custom or how it condoned excessive force.
Paragraphs 1, 15, 18, and 42 generally allege that the City caused Becker’s
injuries by failing to adequately train its officers in using appropriate force or
using canines to execute arrests. But, the Complaint includes no factual
allegations that, if true, would demonstrate that these deficiencies in training
and supervision were products of a deliberate or conscious choice by the City.
See City of Canton v. Harris, 489 U.S. 378, 388–89 (1989) (as cited in Filing No.
49 at ECF p. 7). As Judge Lawrence recently explained, a complaint that states
the framework of a Monell claim but is devoid of any facts that would support it
13
cannot advance. See Milan v. City of Evansville, No. 3:13-cv-1-WTL-WGH, 2013
WL 5592450 at *2 (S.D. Ind. Oct. 10, 2013) (slip opinion).4
Rule 8 does not require Becker to “prove his case in the Complaint”
(Filing No. 49 at ECF p. 7; Filing No. 52 at ECF p. 5), but it demands that he
“give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests,” Pisciotta, 499 F.3d at 633. Becker’s § 1983 claims against the
City accomplish the former but fail at the latter. Therefore, the Magistrate
Judge orders dismissal of Counts IV, V, and VI against the City.
Even so, the Magistrate Judge grants Becker leave to amend Counts IV,
V, and VI against the City. Again, Rule 15 advises judges to “freely give leave
[to amend pleadings] when justice so requires,” and the Seventh Circuit has
urged courts to “‘allow at least one amendment regardless of how unpromising
the initial pleading appears.’” Barry Aviation, Inc. v. Land O’Lakes Mun. Airport
Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (quoting 5A Charles Allen Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.)). If Becker can
identify a specific EPD policy, practice, or custom as the cause of his injuries,
or if he can identify facts that would plausibly suggest the existence of such a
policy, practice, or custom, he may move for leave to set them forth in an
amended Complaint within fifteen days of the issuance of this Entry. If Becker
fails to timely move for leave to amend his Complaint, the Magistrate will
The Magistrate Judge acknowledges Becker’s argument that his allegations are more
specific than those dismissed in Milan. Even if this is so—and the Magistrate need not
decide—Becker’s allegations fail to state a plausible claim for relief.
4
14
dismiss Becker’s § 1983 claims against the City with prejudice and without
further notice.
IV.
Conclusion
For the foregoing reasons, the Magistrate Judge GRANTS the
Defendants’ motion in part and DENIES it in part. The Magistrate GRANTS
the Defendants’ motion to the extent he ORDERS that the following claims be
DISMISSED:
Counts II and III against Officer Elfreich in his personal capacity;
Counts IV, V, and VIII against the City; and
any claim against Officer Elfreich in his official capacity.
The Magistrate Judge DENIES the Defendants’ motion to the extent he
leaves the following claims in tact:
Count I against all Defendants (except Officer Elfreich in his official
capacity);
Counts II and III against the City and such presently unidentified officers
as Becker successfully amends his Complaint to include; and
Count IV against Officer Elfreich and such presently unidentified officers
as Becker successfully amends his Complaint to include.
Within 15 days of the issuance of this order, Becker may move for leave
to amend his Complaint to:
name presently unidentified EPD officers as Defendants; and
state a plausible claim for relief against the City under § 1983.
If Becker fails to timely amend his Complaint in either respect, the Magistrate
15
Judge will order that the corresponding claim be dismissed with prejudice and
without further notice.
SO ORDERED this 22nd day of April, 2014.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Served electronically on all ECF-registered counsel of record.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?