United States District Court, S.D. Indiana, Terre Haute Division
MOTION TO DISMISS
WILLIAM T. LAWRENCE, District Judge.
Plaintiff Alfred Williams Comer brings this lawsuit pursuant to 42 U.S.C. § 1983 and state tort law alleging that the defendants violated his constitutional rights when they assaulted him and retaliated against him when he attempted to report the assault. Defendant Officer David Moehlmann moves to dismiss the state law claims of assault and battery against him, arguing that he is immune from suit under the Indiana Tort Claims Act.
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). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the inference the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In assessing a motion to dismiss, the Court accepts as true the plaintiff's well-pleaded facts and construes them in the light most favorable to the plaintiff. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). Furthermore, "[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).
Comer's assault and battery claim against Officer Moehlman is that he slapped him on the buttocks. Moehlman moves to dismiss Comer's tort claim based on his immunity under the Indiana Tort Claims Act. See Ind. Code § 34-13-3-5(b). This Act provides government employees with immunity from liability for tort claims when they are acting within the scope of their employment. "The purpose of immunity is to ensure that public employees can exercise their independent judgment necessary to carry out their duties without threat of harassment by litigation or threats of litigation over decisions made within the scope of their employment.'" Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000) (quoting Indiana Dept. of Correction v. Stagg, 556 N.E.2d 1338, 1343 (Ind.Ct.App. 1990)). The scope of employment includes conduct "of the kind [a servant] is employed to perform, ' occurring substantially within the authorized time and space limits, ' and actuated, at least in part, by a purpose to serve the master, ' but as excluding an intentional use of force unexpectable by the master.'" Id. at 453 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 793 (1998)).
Moehlmann argues that he is immune from tort immunity because Comer's allegations against him relate to actions he took within the scope of his employment. Moehlmann also argues that by not asserting that his actions were (1) criminal; (2) clearly outside the scope of the employee's employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the employee personally, Comer has failed to properly plead a tort claim against him. See Ind. Code § 34-13-3-5(c). He further asserts that Comer has failed to present a reasonable factual basis for his tort claim as required by the statute. See id. Moehhnann admits, however, that Comer's allegation that Moehhnaim hit him on the buttocks may support an assault and battery claim against a non-govenmiental employee if accepted as true. Comer responds by asserting the Moehlmann's actions were malicious, willful, wanton, and calculated to benefit Officer Moehhnann.
As explained, actions within the scope of a person's employment exclude an "intentional use of force imexpectable by the master.'" Comer's allegation that Moehlmann slapped him on the buttocks may fall within this exclusion. Such a detemiination cannot be made at the pleading stage. Further, Comer's failure to use the words "malicious, willful, wanton, and calculated to benefit Officer Moehhnann" do not defeat a reasonable inference that such actions were such. The Court therefore cannot find, at the pleading stage, that ...