United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Motion to Dismiss and Direct Entry of Final Judgment, filed by Defendants Brian L. Phillips, Jeff C. Tislow, and Steven R. Prothero, on May 29, 2013. (DE #20.) For the reasons set forth below, the motion is GRANTED in part and DENIED in part. The motion to dismiss is granted to the extent that all claims against Brian L. Phillips, Jeff C. Tislow, and Steven R. Prothero are DISMISSED. However, the dismissal is without prejudice, and Defendants' request to direct entry of final judgment pursuant to Federal Rule of Civil Procedure 54(b) is DENIED. All claims against Ryan C. French REMAIN PENDING. Furthermore, provided that she does so within thirty (30) days and as otherwise directed in accordance with this order, Plaintiff may file a motion to amend her complaint if she so chooses.
Plaintiff, Jessica Elizabeth Thomas ("Thomas"), filed this pro se complaint pursuant to 42 U.S.C. section 1983 on December 17, 2012. (DE #1.) In it she named four Lafayette Police Department officers, Ryan C. French ("Officer French"), Brian L. Phillips ("Officer Phillips"), Jeff C. Tislow ("Officer Tislow"), and Steven R. Prothero ("Officer Prothero"), as Defendants. ( Id. at 2.) Thomas alleges that her First, Fourth, Fifth, Eighth, and Fourteenth amendment rights were violated during an encounter with the Lafayette police officers on April 2, 2012. ( Id. ) On May 29, 2013, Officer French filed an answer to Thomas' complaint. (DE #19.) That same day, the other three officers filed the instant motion to dismiss. (DE #20.) On June 11, 2013, Thomas filed a motion for leave to submit evidence in the form of DVDs. (DE #24.) On July 15, 2013, Thomas filed her response to the motion to dismiss; she also separately filed a motion to amend her complaint, asking that Lonnie C. Wilson ("Officer Wilson") be added as a defendant. (DE #28; DE #29.) Thomas' motion to amend her complaint sought to add Officer Wilson to the list of defendants for his past actions and for "being present" for the events that occurred on April 2, 2012. (DE #29.) In an order dated October 29, 2013, Magistrate Judge Andrew P. Rodovich denied Thomas' motion to submit evidence and also denied the motion to amend her complaint without prejudice because she failed to comply with Northern District of Indiana Local Rule 15-1 by not filing a proposed amended complaint with her motion. (DE #31.) To date, no further motions or responses have been filed in this case.
In deciding a motion to dismiss under Rule 12(b)(6), the court must accept all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). To survive dismissal, 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) (internal quotation marks and citation omitted). A plaintiff "must plead some facts that suggest a right to relief that is beyond the speculative level.'" Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). "This means that the complaint must contain allegations plausibly suggesting (not merely consistent with) an entitlement to relief." Lavalais v. Village of Melrose Park, 734 F.3d 629, 632-33 (7th Cir. 2013) (internal quotation marks and citation omitted). However, "[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).
Factual Allegations 
Thomas' complaint alleges that she was driving her car home at 8:45 PM on April 2, 2012; her husband, Brian Thomas ("Brian"), was in the passenger seat at that time. Thomas stopped at a stop sign at the intersection of 11th and Main Streets. She and Brian observed inappropriate activity at a bus stop. At Brian's direction, Thomas turned on her blinkers while Brian retrieved his phone to make a video recording, purportedly for the police. A police car pulled up to the intersection. Thomas and Brian thought the police officer noticed the activity at the bus stop. The police car, however, proceeded to turn left onto 11th Street. Thomas then turned left onto Main Street toward their apartment.
Upon arriving at the parking lot of the apartment, Thomas turned off the car and they got out. The Thomases then noticed that a police car was stopped right behind their car. Both of them "started to record." Officer French got out of the police car and ordered the Thomases back into their car. As they started to do so, Officer French said "wait, " walked toward Brian, and told Brian to "come here." Officer French grabbed Brian's left arm, pulled him to the middle of the parking lot, and pulled Brian onto the ground. While still holding Brian's arm, Officer French pushed his knee into Brian's back five times.
Thomas told Officer French that Brian had a broken back and that she was worried that he would break it again. Thomas insisted that she and Brian didn't do anything wrong. Officer French told her to "shut up." Officer French then pulled Brian back to his feet, pushed him back to the ground, and pulled him across the pavement for five to ten minutes. He then grabbed Brian's other arm and told him he was under arrest for resisting arrest. Thomas responded that Brian had not been resisting and that Officer French was "beating him up for no reason at all."
After putting Brian in handcuffs, Officer French told Thomas that she was under arrest well. Thomas put her hands behind her back and turned around so she could be cuffed. Officer French grabbed her left arm and chest, ripping her T-shirt and bra. Officer French then pushed Jessica into the pavement and pulled her across the pavement. After all of this had occurred, Officer French called for backup. It took the other officers about three minutes to arrive at the scene.
Officer Tislow and Officer Prothero arrived and stood Brian up against a white van, and Officer French proceeded to choke Brian. Officer Prothero then took Brian to his police car.
Officer Tislow and Officer French helped Thomas off the ground to walk with them. She stated that her right hip and knee were hurting. While Officer French scoffed at her claims of injury, Officer Tislow lifted her shirt to see that her right hip was bleeding and her right knee was bleeding through her pants. Officer Tislow then called for medics. Thomas was placed in Officer Tislow's car until medics arrived. The medics said that Thomas should be taken to the hospital but that Brian was fine.
During this time, Officer French was "going through" the Thomases' car and emptied out Brian's shoulder bag onto the trunk of a police car. Officer French took Brian's medication, money, cell phone, and the bag to the police department. He also confiscated Jessica's video recorder and ...