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Jones v. Town of Highland

United States District Court, Northern District of Indiana

September 3, 2014

JOSHUA R. JONES, b/n/f MARCELLA AMOS; ESTATE OF JOSHUA R. JONES by Administratrix MARCELLA AMOS; and MARCELLA AMOS, individually, Plaintiffs,
TOWN OF HIGHLAND, INDIANA; DAN VASSER, individually and in his official capacity as President of Highland Town Council; HIGHLAND POLICE DEPARTMENT; PETER HOJNICKI, individually and in his official capacity as Town of Highland Chief of Police; SHAWN M. ANDERSON, individually and in his official capacity as Corporal in Highland Police Department; BRIAN ORTH, individually and in his official capacity as Officer in Highland Police Department, Defendants.



Plaintiff Marcella Amos filed this suit on her own behalf and on behalf of her deceased son Joshua Jones and his Estate. Amos alleges that she asked the police to come to her home to do a wellness check on Jones, who suffered from schizophrenia. Two police officers came, the encounter became violent, and the police officers shot Jones several times, killing him. Amos is suing the police officers who killed Jones, as well as the police chief, the police department, the town, and the president of the town council. Her federal and state claims allege excessive force, wrongful death, unconstitutional policies or practices, and intentional infliction of emotional distress. The defendants moved to dismiss certain claims against certain defendants. Amos never responded. For the reasons below, the motion is GRANTED IN PART AND DENIED IN PART.


Before his death in 2012, Jones lived with his mother, Amos. (Compl. ¶ 11.) Jones suffered from schizophrenia. (Id. ¶ 12.) The tragic circumstances surrounding Jones’s death started when Jones was acting out because of his illness. Late that night, or shortly after midnight, Amos called her mother and asked her to call the police to do a wellness check on Jones at Amos’s home. Highland Police Corporal Anderson and Officer Orth responded to the call at approximately 12:45 a.m. (Id. ¶¶ 13-14.) Jones opened the door for them and told Amos that the police were there. (Id. at ¶ 15.) Amos let the officers in the house and told them that Jones was schizophrenic. She said that earlier in the day Jones had been in Amos’s bedroom with a butcher knife, and also that he had put his hands around her neck. (Id. ¶¶ 16-17.) This must have enraged Jones because he responded by calling his mom a “n ” and then, in the presence of the two officers, he hit her in the jaw with his fist. Amos fell to the ground in the hallway and Jones landed on top of her, trying to hit her. (Id. ¶¶ 17-18.) Officer Orth attempted to restrain Jones, and Officer Anderson used his Taser twice, attempting to end the struggle between Jones and Amos. (Id. ¶¶ 19-20.) Amos was able to escape, and moved away, but she could see Jones being held down on the hallway floor. Amos heard Jones tearfully shouting “get off me.” (Id. ¶ 21.) Amos, feeling overwhelmed, moved away, then heard gunshots. (Id. ¶ 22.) When Amos asked police officers outside of her home what had happened to her son, she was given no answer. (Id. ¶ 23.) She then saw Jones taken to an ambulance lying naked on a white sheet on a gurney. (Id. ¶ 24.)

The coroner reported Jones’s cause of death as traumatic injuries due to multiple gunshot wounds. The autopsy revealed nine gunshot wounds. (Id. ¶¶ 25, 24a.[1])


Amos’s Complaint alleges four claims. The defendants’ motion to dismiss challenges one claim in its entirety, and two others only with respect to particular defendants. I won’t address the claims the defendants don’t challenge. I will take up the claims they do challenge, ultimately granting the defendants’ motion in part and denying it in part. The defendants make several disparate arguments for the dismissal of various parts of Amos’s claims: (a) Highland Town Council President Dan Vasser should be dismissed because no relief is sought against him specifically; (b) Hojnicki can’t be sued in his individual capacity because he wasn’t directly involved in the alleged excessive use of force that led to this suit; (c) Indiana Tort Claims Act immunity applies to the state law claims; and (d) the Highland Police Department can’t be sued because it’s not an entity independent from the Town. This piecemeal approach to analyzing and dismissing claims against particular defendants is complicated, but it will streamline the case for discovery, and for future proceedings and briefing. My task has been made much more difficult by the fact that the plaintiff hasn’t bothered to respond to the motion.

For starters, I note that a plaintiff is not obligated to respond to a motion to dismiss. This is because a plaintiff “can simply rest on the assumed truthfulness and liberal construction afforded [her] complaint.” Curtis v. Bembenek, 48 F.3d 281, 287 (7th Cir. 1995); see also Bugariu v. Town of St. John, No. 2:13-cv-00355, 2014 U.S. Dist. LEXIS 31782, at *4-5 (N.D. Ind. Mar. 12, 2014). It is probably not the wisest course for a litigant to take, but in any event, the motion is now ripe for decision, although not fully briefed.

Federal Rule of Civil Procedure 8 sets out the baseline for a viable claim. It requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he traditional purpose of notice pleading . . . [is to] give[] defendants fair notice of the claims against them and a reasonable opportunity to form an answer.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).

To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “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); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At this stage I will accept all factual allegations as true and draw all reasonable inferences in the plaintiff’s favor, but I don’t need to accept threadbare legal conclusions supported by purely conclusory statements. See Iqbal, 556 U.S. at 678. Therefore I must first identify and disregard all “allegations in the complaint that are not entitled to the assumption of truth, ” especially any legal conclusions. Id. at 680-81. Then I will analyze the remaining allegations to determine whether they plausibly – and not merely possibly or conceivably – suggest an entitlement to relief. Id. at 681, 683. This task invariably requires me to draw on my judicial experience and common sense. Id. at 679.

Under 42 U.S.C. § 1983 a plaintiff can sue a defendant who “acts under color of state law and violates a plaintiff’s rights under the Constitution or laws of the United States.” Pittman v. Cnty. of Madison, 746 F.3d 766, 775 (7th Cir. 2014).

Before delving into the details of the claims, one defendant must be dismissed from the case entirely. “The naming of the Town’s Police Department as a defendant adds nothing; it is almost certainly not a suable entity separate from the Town.” West by & Through Norris v. Waymire, 114 F.3d 646, 646-47 (7th Cir. 1997) (citations omitted); see also, e.g., Wiseman v. City of Mich. City, 966 F.Supp.2d 790, 796 (N.D. Ind. 2013) (collecting cases); Nevinger v. Town of Goodland, No. 4:11-cv-00025, 2011 U.S. Dist. LEXIS 75026, at *4-5, (N.D. Ind. July 12, 2011) (“Under Indiana law, although a ‘unit’ of local government may be sued, its individual departments including its police department may not. IC 36-1-4-3. Indiana Code defines a ‘unit’ of government as a ‘county, municipality, or township.’ IC 36-1-2-23. The Police Department is none of these.”) The Highland Police Department is therefore dismissed from the suit, and won’t be addressed in my consideration of the various claims.

1. Count 1: Unconstitutional Policy of Excessive Use of Police Force

Amos’s first claim is brought pursuant section 1983 against the Town of Highland, Police Chief Hojnicki, Officers Anderson and Orth, the (now dismissed) Police Department, and possibly Town Council President Dan Vasser. Amos states that the Town and Police Department, and their leadership, permitted excessive use of police force ...

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