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Chibber v. Zoeller

United States District Court, N.D. Indiana

February 19, 2014

GREGORY ZOELLER, Attorney General, et al., Defendants.


WILLIAM C. LEE, District Judge.

This matter is before the court on a motion for judgment on the pleadings filed by the defendants, Gregory Zoeller ("Zoeller"), Mark Mader ("Mader"), Indiana State Board of Nursing ("State Board"), Jerry Burghduff ("Burghduff") and Kathy Franko ("Franko"), on November 7, 2013.

The plaintiff, Toni Denise Chibber ("Chibber"), proceeding pro se, filed a "Motion to Deny Defendants' Motions for Judgment and Stay of Discovery[1]" on November 25, 2013. On January 21, 2014, Chibber filed a "Direct Response to Defendants' Eighteen Points in Their Motion for Judgment on the Pleadings".

For the following reasons, the motion for judgment on the pleadings will be granted.


After the pleadings are closed, a defendant may seek dismissal for failure to state a claim by a motion for judgment on the pleadings. Fed.R.Civ.P. 12(c). The court reviews the motion under the same standard as a motion to dismiss under Rule 12(b)(6). Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). The plaintiff's factual allegations are taken as true, and the court draws all reasonable inferences in the plaintiffs favor. Id.

Under Rule 201(b) of the Federal Rules of Evidence, the Court "may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Judicial notice of facts in the public record will not convert a motion for judgment on the pleadings to a motion for summary judgment. Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). Under this rule, a court may take judicial notice of adjudicative facts in another proceeding. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-82 (7th Cir. 1997). However, such notice may be limited to establishing the fact of such litigation and related filing; not for the truth of the facts asserted in such filings. Id. at 2082 n. 6.

Also, documents that are referred to by the complaint and are central to the plaintiff's claim will be considered part of the pleadings if submitted by the defendant in support of its motion to dismiss. Venture Assocs Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993).

The federal rules of pleading require a plaintiff to allege enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed.R.Civ.P. 8(a)(2). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Conclusory allegations are not entitled to a presumption of truth. Iqbal, 556 U.S. at 680-681. A plaintiff can plead herself out of court by alleging facts showing that she is not entitled to relief. Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). This necessarily occurs when, to prevail, the plaintiff must contradict a factual allegation in the complaint. Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008).

A court will grant a Rule 12(c) motion when it appears that no claim has been stated and the moving party demonstrates that there are no material issues of fact to be resolved. Guise v. BWM Mortg., 377 F.3d 795, 798 (7th Cir. 2004).

The background facts in this case are as follows. On February 2, 2009, Chibber, a registered nurse who was licensed in the State of Indiana, passed out while working at the Silverbrook Manor Nursing Home ("Silverbrook") in Niles, Michigan. Compl. ¶ II(1). She was taken by ambulance to the St. Joseph Regional Medical Center, which is located nearby in South Bend, Indiana. Id.

The hospital subsequently reported to State Police Trooper Kathy Franko that while Chibber was being treated in the emergency room for a drug overdose, hospital staff found controlled medications in Chibber's purse. The hospital alleged the medications were labeled with other persons' names and were from Silverbrook. Silverbrook subsequently informed Franko that it had pursued criminal charges against Chibber in Michigan. The Niles Police Department advised Franko that Chibber was arrested on a Michigan warrant.

As a result of the information that she received, Franko completed a Consumer Complaint on July 21, 2010, which she forwarded to the Office of the Indiana Attorney General, where it was received on August 9, 2010. In it, Franko asked the Attorney General and Nursing Board "to take appropriate action" against Chibber's registered nursing license and her practical nursing license. Franko opened her case as an investigation of "Theft/Recovered Stolen Property" under the authority of Indiana Code Section 35-42-4-2. However, nowhere in the Consumer Complaint including her attached case reports and other attachments is there any mention that the State of Indiana has brought, is bringing, or will be bringing criminal charges against Chibber. Id.

In September 2010, as a result of receiving Franko's complaint, the State referred Chibber to the Indiana State Nurses Assistance Program ("ISNAP"). Compl. ¶ II(2). Chibber was then evaluated by a mental health professional. Compl. ¶ II(2). Chibber subsequently refused to enroll in a six-month monitoring program. Compl. ¶ II(2). The State, through the Indiana Professional Licensing Agency, filed a complaint on December 5, 2011, against Chibber's registered nursing license. On January 13, 2012, and again on May 25, 2012, the Board notified Chibber of a settlement/pre-hearing conference and final hearing date in her case. Both notices informed Chibber that the hearings were being held pursuant to Indiana's ...

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