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Thornton v. Scan, Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

March 12, 2015



PHILIP P. SIMON, Chief District Judge.

Before me is Defendants' motion to dismiss (DE 16) requesting that I dismiss Thornton's complaint for various procedural and jurisdictional reasons. Also before me is Defendants' motion for a summary ruling (DE 22). For the reasons below, Defendants' motion for a summary ruling (DE 22) is GRANTED and their motion to dismiss (DE 16) is GRANTED-IN-PART and DENIED-IN-PART.


As usual, I'll start with the facts as alleged in the complaint, which I accept as true at this point in the case. Brian Anthony Thornton, a pro se plaintiff, is the father of a minor child, JT. Thornton and his wife are either divorced or in the process of divorcing. As a condition of their custody arrangement, the court handling the Thornton's divorce ordered that Thornton's visits with his son be supervised by Defendant SCAN, Inc.

Thornton hasn't had very positive experiences at SCAN's facilities. Thornton alleges various run-ins with SCAN's employees, who are listed as co-defendants. For example, Thornton claims he was subjected to illegal searches or "frisks" upon entering the premises, was not allowed to change his son's diaper, was not allowed to pray with his son, and was denied access to his son without cause. Thornton alleges each of these occurred multiple times.

Thornton alleges that these actions violated his rights under the First, Second, Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution. He also claims that Defendant SCAN "was Ordered to act as the agency of Parenting Time on behalf of the State of Indiana Government." (DE 7 at 3.) Because of that, Thornton claims SCAN was a state actor and that the complaint therefore states a proper claim under 42 U.S.C. § 1983.

The defendants claim that I do not have "jurisdiction" over these claims under Section 1983 because SCAN was not a state actor. This is incorrect. Whether SCAN is or is not a state actor is not a matter that divests me of jurisdiction. If SCAN is not a state actor that would be grounds to dismiss for failure to state a claim under Rule 12(b)(6). But my "jurisdiction" to hear the matter is certainly not in question. In addition, defendants further claim that Thornton doesn't have standing to pursue his declaratory and injunctive remedies against SCAN because there is no longer a case or controversy between him and SCAN now that SCAN is no longer responsible for monitoring his supervised visitation. Defendants also want me to dismiss this matter for various procedural deficiencies.

Thornton has not responded to Defendants' motion to dismiss, even though the time to do so has long since passed. Defendants request that I therefore summarily rule on their motion to dismiss, absent Thornton's response. That request will be GRANTED. I'll therefore take each of Defendants' arguments in their motion to dismiss in turn.


To survive a motion to dismiss under Rule 12(b), "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) ( quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At this stage I must accept all allegations as true and draw all reasonable inferences in the complainant's favor, but I don't need to accept threadbare legal conclusions supported by mere conclusory statements. See id. at 678. So under Iqbal, I must first identify allegations in the complaint that are not entitled to the assumption of truth by, for example, disregarding legal conclusions. Id. Then I must look at the remaining allegations to determine whether they plausibly suggest an entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief requires me to draw on my judicial experience and common sense. Id. at 679. And I must also bear in mind that "[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).

Procedural Defects

At the outset, Defendants request that I dismiss the complaint because it was not executed under penalty of perjury as required by my previous order (DE 4) and it was filed two days late, also in contravention of my colleague's previous order (DE 6). Although Thorton did not precisely follow my order, I am generally of the mind that claims should be tackled on the merits rather than on procedural technicalities. This is especially so when I am dealing with a pro se litigant. Erickson, 551 U.S. at 94. Since "it is clear that the decision whether to apply the rule strictly or to overlook any transgression is one left to the district court's discretion, " and since Defendants have shown no prejudice resulting from these transgressions, I'll exercise my discretion to overlook them. Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (quoting Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)); Eubanks v. Norfolk S. Ry. Co., 875 F.Supp.2d 893, 898 (N.D. Ind. 2012). In other words, I'm not going to dismiss the complaint on these bases.

Section 1983 Claims

Section 1983 provides a cause of action for individuals whose constitutional rights are denied to them "under color of any statute, ordinance, regulation, custom, or usage, of any State." 42 U.S.C. § 1983. The shorthand description of this is that a plaintiff must demonstrate that a defendant deprived him of a federal right while acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970), abrogated on other grounds. Section 1983 protects citizens from conduct by the government, but not from conduct by private actors, no ...

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