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Bostic v. Radiceski

United States District Court, N.D. Indiana, Hammond Division

September 27, 2016

LORENA E. BOSTIC, Plaintiff,
v.
MIROSLAV RADICESKI, et al., Defendants.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE UNITED STATES DISTRICT COURT.

         I. BACKGROUND

         Plaintiff Lorena E. Bostic alleges that she was sexually assaulted by defendant Miroslav Radiceski while he was serving as her probation officer. (DE # 5.) She filed the present lawsuit against Radiceski, along with Jan Parsons, the director of the relevant probation department; various judges of the Superior Court of Lake County, Indiana; the State of Indiana; Lake County, Indiana; and the county commissioners. (Id.) Plaintiff alleges violations of her rights under 42 U.S.C. § 1983 (Count I) and the laws of the State of Indiana, namely negligence (Count II) and willful and wanton conduct (Count III). (Id.) This matter is before the court on three motions to dismiss, filed by the State of Indiana and the judges (DE # 27), Parsons (DE # 31), and Radiceski (DE # 29).

         II. LEGAL STANDARD

         Defendants have moved to dismiss plaintiff's claims under Fed.R.Civ.P. 12(b)(6) 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)).

         III.DISCUSSION

         A. State Defendants' Motion to Dismiss

         The State of Indiana and the judges (“the State Defendants”) filed a joint motion to dismiss. (DE # 27.) Plaintiff admits she is not pursuing a Section 1983 claim (Count I) against the judges in their official capacities (DE # 39 at 5), or a willfull or wanton conduct claim (Count III) against the judges. (Id. at 3.) She also admits that she is not suing the State of Indiana for a Section 1983 violation (Count I) or for willful or wanton conduct (Count II). (DE # 39 at 4.) What remains are individual capacity suits against the judges under Section 1983 (Count I) and negligence claims against both the State and the judges (Count II).

         The State Defendants argue that plaintiff's individual capacity claims against the judges under Section 1983 should be dismissed because the allegations seek to impose respondeat superior liability (that is, holding the judges responsible for Radiceski's conduct simply by virtue of being in charge of Radiceski), which is not allowed under Section 1983. It is true that, under Section 1983, a government official is only liable for his or her own misconduct. Locke v. Haessig, 788 F.3d 662 (7th Cir. 2015). However, plaintiff has alleged independent action on the part of the judges- including that they hired, retained, and entrusted probationers to a unfit employee; failed to adopt, incorporate, and enforce rules to protect probationers; and failed to exercise due care for the safety of probationers. (DE # 5 at 14-15.) The State Defendants have not convincingly argued that these allegations sound in respondeat superior. Whether the allegations state a proper claim under Section 1983 is another matter, but that question has not yet been raised, so the court will not address it. For now, the court can only reject the State Defendants' argument that plaintiff's individual capacity claims against the judges should fail because they are based on respondeat superior liability.

         The State Defendants also argue that plaintiff's negligence claim (Count II) against the State of Indiana and the judges should be dismissed because the defendants possess immunity under the Indiana Tort Claims Act (“ITCA”). The ITCA provides that:

“A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following:
. . .
(17) Injury to the person or property of a person under supervision of a ...

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