United States District Court, N.D. Indiana, Hammond Division
LORENA E. BOSTIC, Plaintiff,
MIROSLAV RADICESKI, et al., Defendants.
OPINION AND ORDER
T. MOODY JUDGE UNITED STATES DISTRICT COURT.
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).
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,
State Defendants' Motion to Dismiss
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).
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.
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 ...