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Vermillion v. City of Peru

United States District Court, N.D. Indiana, South Bend Division

August 14, 2014

RYAN VERMILLION, Plaintiff,
v.
CITY OF PERU, ET AL., Defendants.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

This matter is before the court on defendants Bill Raber, Steve Gough, James Walker, Bill Berkshire, Chris Betzner, the Peru Police Department, J.O. Buffington, Andrew Johnson, and the City of Peru's partial motion to dismiss plaintiff Ryan Vermillion's complaint. (DE # 6.) Plaintiff has not filed a response, and the time to do so has now passed. For the following reason, defendants' motion to dismiss is granted in part and denied in part.

I. Facts and Background

Plaintiff's complaint is sparse, and the court must treat the facts alleged in the complaint as true for purposes of evaluating defendants' motion to dismiss. On February 26, 2012, plaintiff was detained and arrested by City of Peru police officers Buffington and Johnson. (DE # 3 at 2.) During his arrest, plaintiff was "battered" by Buffington and Johnson, which resulted in plaintiff suffering a physical injury. ( Id. ) As a result of this incident, plaintiff filed suit against defendants alleging the following claims: "intentional battery" against Buffington and Johnson ( id. at 2), "negligent battery" against Buffington and Johnson ( id. at 3), and a 42 U.S.C. § 1983 claim for excessive force against all defendants. ( Id. at 3-4.) In his complaint, plaintiff alleges that defendant Bill Raber is the Chief of Police for the City of Peru, that James Walker is the Mayor of Peru, and that defendants Raber, Steve Gough, Walker, Bill Berkshire, and Chris Betzner make up the City of Peru Board of Works. ( Id. at 1.) Defendants have now moved to dismiss portions of plaintiff's complaint. (DE # 6.)

II. rLegal Standard

Defendants have moved to dismiss plaintiff's claims under RULE 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE for failure to state a claim upon which relief may be granted. A judge reviewing a complaint under a RULE 12(b)(6) standard must construe it in the light most favorable to the non-moving party, accept well-pleaded facts as true, and draw all inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Reger Dev., LLC v. Nat'l City Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the liberal notice-pleading requirements of the FEDERAL RULES OF CIVIL PROCEDURE, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). To satisfy RULE 8(a), "the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson, 551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

"While the federal pleading standard is quite forgiving, ... the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011); Twombly, 550 U.S. at 555, 570. A plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To meet this standard, a complaint does not need detailed factual allegations, but it must go beyond providing "labels and conclusions" and "be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, 40 F.3d 247, 251 (7th Cir. 1994) among other authorities). As the Seventh Circuit recently explained, a complaint must give "enough details about the subject-matter of the case to present a story that holds together." Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

However, the plaintiff does not need to plead facts that establish each element of a cause of action and, "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint." Sanjuan, 40 F.3d at 251. Even if the truth of the facts alleged appears doubtful, and recovery remote or unlikely, the court cannot dismiss a complaint for failure to state a claim if, when the facts pleaded are taken as true, a plaintiff has "nudged their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 555, 570.

III. Analysis

A. Plaintiff's Claims Against Defendants Raber, Gough, Walker, Berkshire, and Betzner

In their motion to dismiss, defendants argue that all of plaintiffs' claims against defendants Raber, Gough, Walker, Berkshire, and Betzner must be dismissed. (DE # 6 at 2.) First, defendants argue that plaintiff has failed to state a claim against these defendants for battery because the complaint "fails to allege that [Raber, Gough, Walker, Berkshire, and Betzner] made any harmful or offense [sic] contact with plaintiff." ( Id. at 2.) "[A]n actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.'" Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007) (quoting Restatement (Second) of Torts § 13 (1965)).[1]

It does not appear from plaintiff's complaint that plaintiff is bringing a battery claim against Raber, Gough, Walker, Berkshire, or Betzner. (DE # 3.) To the extent that plaintiff is alleging a battery claim against any of these defendants, however, the court agrees that plaintiff has failed to allege any facts or present any argument that would support a claim that these defendants are liable for battery. Defendants' motion to dismiss will therefore be granted on this ground.

Defendants also argue that plaintiff has failed to allege facts that would support a claim that Raber, Gough, Walker, Berkshire, and Betzner are liable under Section 1983. (DE # 6 at 2.) In his complaint, plaintiff appears to bring a Section 1983 claim against these defendants in both their individual and official capacities. (DE # 3 at ¶ 2.)

"An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation." Kuhn v. Goodlow, 678 F.3d 552, 556 (7th Cir. 2012) (citation and quotation omitted) (emphasis in original); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (same); see also Drago v. Winnebago County Jail Staff, No. 12 C 50116, 2013 WL 6512479, at *5 (N.D. Ill.Dec. 11, 2013) ("To hold a party liable in their individual capacity under 42 U.S.C. § 1983, a plaintiff must allege the individual was personally involved in the alleged constitutional deprivation."). Plaintiff's complaint lacks any facts that would indicate these defendants were in any way personally involved in plaintiff's arrest. ...


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