Brooks v. Creahan et al

Filing 112

DECISION AND ORDER: ORDERED that plaintiff's motion (Dkt. No. 88 ) for permanent injunctive relief, and his alternative request for a hearing on the motion, are DENIED. Signed by Judge Brenda K. Sannes on 5/11/17. (Attachments: # 1 Unpublished Decision Cited) (served on plaintiff by regular mail)(alh, )

Weaver v. Combs, Not Reported in F.Supp.2d (2008)
2008 WL 4371342

2008 WL 4371342
Only the Westlaw citation is currently available.
United States District Court,
S.D. Indiana.
Nga WEAVER, Plaintiff,
v.
Trooper Jesse COMBS, et al., Defendants.
No. 4:07-cv-0107-SEB-WGH.
|
Sept. 18, 2008.
Attorneys and Law Firms
Nga Weaver, Shelbyville, KY, pro se.
Cory Christian Voight, Donald G. Banta, Indiana Office
of the Attorney General, Stephanie Lynn Cassman,
Thomas C. Hays, Lewis Wagner LLP, John Thomas
Roy, Travelers Staff Counsel Office, Indianapolis, IN, Jay
D. Patton, Lawrence E. Barbiere, Schroeder Maundrell
Barbiere Powers, Cincinnati, OH, for Defendants.

Entry Discussing Motion for Judgment on the Pleadings
SARAH EVANS BARKER, District Judge.
*1 One of several defendants in this civil rights action
brought by Nga Weaver (“Weaver”) is the Ripley County
Sheriff's Department (“Sheriff's Department”). Insofar as
pertinent to the claims addressed in this Entry, Weaver
alleges that following her arrest at the Grand Victoria
Casino on August 13, 2005, she was transported to the
Ohio County Police Station, and thence to the Ripley
County Jail (“Jail”), where her property was inventoried,
and upon her release from the Jail money was missing
from her purse. Weaver contends that an unknown
employee of the Sheriff's Department took money from
the area where her personal property was being stored
at the Jail. She describes this as “conversion” in Count
V of her complaint, and seeks punitive damages from
the Sheriff's Department in County VI of her complaint.
At least as to the conversion, Weaver maintains that the
wrongful conduct she alleges will support a claim under
both 42 U.S.C. § 1983 and Indiana state law.
The Sheriff's Department seeks resolution of Weaver's
claims against it through the entry of judgment on the

pleadings. Weaver has opposed the Sheriff Department's
motion. Although Weaver's response includes materials
outside the pleadings, the court has not considered those
materials in addressing the motion for judgment on the
pleadings and therefore does not convert that motion to a
motion for summary judgment. See E.E.O.C. v. Reno, 758
F.2d 581, 583 n .6 (11th Cir.1985).

Discussion
A party is permitted under Federal Rule of Civil
Procedure 12(c) to move for judgment on the pleadings
after the filing of a complaint and answer. Northern
Indiana Gun & Outdoor Shows, Inc. v. City of South Bend,
163 F.3d 449, 452 (7th Cir.1998). The court applies the
Rule 12(b) motion to dismiss standard for Rule 12(c)
motions. Id. A complaint is sufficient only to the extent
that it “ ‘contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain
recovery under some viable legal theory,’ “ Bell Atl. Corp.
v. Twombly, 127 S.Ct. 1955, 1969 (2007) (quoting Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106
(7th Cir.1984)), and although the requirements of notice
pleading are minimal, “[a] complaint is subject to dismissal
for failure to state a claim if the allegations, taken as
true, show that plaintiff is not entitled to relief.” Jones
v. Bock, 127 S.Ct. 910, 921 (2007). “If the allegations,
for example, show that relief is barred by the applicable
statute of limitations, the complaint is subject to dismissal
for failure to state a claim....” Id.
Federal Claims. Weaver's federal claim is brought
pursuant to 42 U.S.C. § 1983. 1 To state a claim under §
1983, a plaintiff must allege the violation of a right secured
by the Constitution or laws of the United States and must
show that the alleged deprivation was committed by a
person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). This court has subject matter
jurisdiction over this claim pursuant to 28 U.S.C. § 1331.
The court has subject matter jurisdiction over the state
claim, if at all, pursuant to 28 U.S.C. § 1367(a).
1

Although Weaver has separately alleged her
entitlement to punitive damages, this is not a “claim”
for relief, but one aspect of the damages she seeks.
The “claim” for punitive damages is not mentioned
further in this Entry.

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Weaver v. Combs, Not Reported in F.Supp.2d (2008)
2008 WL 4371342

*2 Section 1983 is not itself a source of substantive
rights; instead, it is a means for vindicating federal rights
conferred elsewhere. Graham v. Connor, 490 U.S. 386,
393-94 (1989) (citing Baker v. McCollan, 443 U.S. 137,
144 n. 3 (1979)). Accordingly, the initial step in any
§ 1983 analysis is to identify the specific constitutional
right which was allegedly violated. Id . at 394; Kernats
v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir.1994); see
also Gossmeyer v. McDonald, 128 F.3d 481, 489-90 (7th
Cir.1997).

for this reason she does not have a federal claim for the
denial of property without due process. Whether such
a remedy was actually sought, and if sought whether it
was successful, would not establish that Indiana's remedy
is inadequate. See Hamlin v. Vaudenberg, 95 F.3d 580,
585 (7th Cir.1996) (holding that post-deprivation remedy
must be “meaningless or nonexistent” to be inadequate);
Easter House v. Felder, 910 F.2d 1387, 1406 (7th Cir.1990)
(explaining that state remedy is not necessarily inadequate
because it is uncertain or incomplete).

The Fourteenth Amendment provides that state officials
shall not “deprive any person of life, liberty, or property,
without due process of law,” but a state tort claims
act that provides a method by which a person can
seek reimbursement for the negligent loss or intentional
depravation of property meets the requirements of the due
process clause by providing due process of law. Hudson
v. Palmer, 468 U.S. 517, 533 (1984)(“For intentional, as
for negligent deprivations of property by state employees,
the state's action is not complete until and unless it
provides or refuses to provide a suitable post deprivation
remedy.”). Indiana's Tort Claims Act (IND.CODE §
34-13-3-1 et seq.) provides for state judicial review of
property losses caused by government employees, and
provides an adequate post-deprivation remedy to redress
state officials' accidental or intentional deprivation of a
person's property. Wynn v. Southward, 251 F.3d 588, 593
(7th Cir.2001) (“Wynn has an adequate post-deprivation
remedy in the Indiana Tort Claims Act, and no more
process was due.”).

*3 Because Weaver has an adequate state law remedy,
the alleged deprivation of her property was not a
constitutional violation. Therefore the federal claim
associated with the alleged deprivation of money from
Weaver's purse at the Jail shows that there is no plausible
basis for her recovery, and under these circumstances
she has pled herself out of court as to this claim
by alleging facts that show there is no viable claim.
See Pugh v. Tribune Co., 521 F.3d 686, 699 (7th.
Cir.2008); Vukadinovich v. Zentz, 995 F.2d 750, 755 (7th
Cir.1993)(“Moreover, even if Zentz had stolen the money,
it was the type of random and unauthorized act that
does not violate due process since adequate post-judicial
remedies were available to Vukadinovich. Specifically,
Vukadinovich could have asserted a state law claim for
conversion. We hold that the court properly directed a
verdict for Zentz on Vukadinovich's due process claim.”)
(internal citations omitted).

Weaver is absolutely correct that she was entitled to
constitutional protections with respect to the seizure of
her property, but this means nothing more and nothing
less than due process, for that is the guarantee of the
Fourteenth Amendment. Zinerman v. Burch, 110 S.Ct.
975, 983 (1990) ( “Deprivation of a constitutionally
protected interest in ‘life, liberty, or property’ is not in
itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of
law.... The constitutional violation actionable under §
1983 is not complete when the deprivation occurs; it is
not complete unless and until the State fails to provide
due process.”). Weaver had an adequate post-deprivation
remedy because she could have sued in state court,
IND.CODE § 35-43-4-3; Lee Tool & Mould, Ltd. v. Ft.
Wayne Pools, Inc., 791 F.2d 605, 608-09 (7th Cir.1986)
(defining elements of conversion under Indiana law), and

State Claims. Weaver mentions the Indiana Constitution
as supporting a claim, but fails to respond to the Sheriff
Department's argument that no such claim is available
here. Indeed, the Indiana Supreme Court recently
recognized that Indiana has no statutory provision like §
1983 that creates an explicit civil remedy for constitutional
violations by individual officers or governmental entities.
See Cantrell v. Morris, 849 N.E.2d 488, 493 (Ind.2006).
As to the claim of negligence, the Sheriff's Department
points out that the Indiana Tort Claims Act (“ITCA”)
governs lawsuits against political subdivisions and their
employees. The Sheriff's Department maintains that
Weaver failed to file a tort claims notice within 180 days
of her alleged loss as is statutorily required. The ITCA
provides that a tort claim against a political subdivision
is barred unless the plaintiff has filed a notice of claim
with the governing body of that political subdivision
and the Indiana political subdivision risk management

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Weaver v. Combs, Not Reported in F.Supp.2d (2008)
2008 WL 4371342

commission within 180 days after the alleged loss occurs.
IND.CODE § 34-13-3-8.
The Sheriff's Department may be correct as to this
argument, but it relies on the Sheriff's affidavit (not part
of any pleading) in demonstrating that Weaver did not
comply with the notice provision of the ITCA. The court
is not obligated to convert the motion for judgment on the
pleadings to a motion for summary judgment under these
circumstances and is not inclined to do so. See Ebea v.
Black & Decker (U.S.), Inc., 2008 WL 1932196, at * *3-4
(S.D.Ind.2008)(“If G & H had intended for this court to
consider its motion to dismiss as a motion for summary
judgment, it should have sought this relief directly by
complying with the procedural requirements for a motion
for summary judgment that are set forth in Local Rule
56.1. Because G & H has not done this, the court will not
convert its motion to dismiss into a motion for summary
judgment and will therefore exclude from its consideration
documents attached to the briefs submitted by G & H and
Ebea.”). Additionally, the ITCA only applies where the
wrongdoing individual has acted within the scope of his
or her employment, and it is not alleged that the theft
of Weaver's personal property from a storage bin in the

Jail occurred within the scope of the employment of such
person.
*4 Insofar as Weaver asserts a state law claim based
on negligence, therefore, the motion for judgment on the
pleadings is denied.

Conclusion
Based on the foregoing, the Sheriff's Department's motion
for judgment on the pleadings is granted in part and
denied in part. The motion is granted as to the federal
claims against the Ripley County Sheriff's Department, is
granted as to any claim based on the Indiana Constitution,
and is denied as to the pendent claim for negligence under
Indiana state law. This ruling does not resolve all claims
against all parties, and no partial final judgment shall issue
at this time as to the claims resolved in this Entry.
IT IS SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2008 WL 4371342

End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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