United States District Court, N.D. Indiana, Hammond Division
NANCY KUHLMEY, Personal Representative of the Estate of John Edwards Brown, II, deceased, Plaintiff,
CITY OF HAMMOND, et al., Defendants.
OPINION AND ORDER
T. MOODY JUDGE
complaint, plaintiff alleges that the Hammond Police
Department (“HPD”) visited the home of the
decedent, John Edwards Brown, II, and his wife Jennifer
Brown, on February 16, 2014. Plaintiff further alleges that
John had a steak knife in his hand or one in each hand, and
HPD officers fired multiple gunshots at him, causing his
death. (DE # 1.)
filed the present suit against the City of Hammond and Brian
Miller in his capacity as Chief of Police for HPD
(“defendants”), among others. Defendants have
moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss Count II of plaintiff's complaint, which alleges
a violation of 42 U.S.C. § 1983 for failure to train and
supervise its work force and for employing a “shoot
first, ask questions later” policy. (DE # 1 at
¶¶ 59, 60.) Defendants have also moved to strike
the parts of the complaint using the phrase “shoot
first, ask questions later” as scandalous under Federal
Rule of Civil Procedure 12(f).
Rule 12(b)(6) Motion to Dismiss
have moved to dismiss plaintiff's claims under Rule
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,
the federal pleading standard is quite forgiving, . . . the
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ray v. City of Chicago, 629 F.3d 660,
662-63 (7th Cir. 2011); Twombly, 550 U.S. at 555,
570. A plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To
meet this standard, a complaint does not need detailed
factual allegations, but it must go beyond providing
“labels and conclusions” and “be enough to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citing Sanjuan v. Am.
Bd. of Psychiatry & Neurology, 40 F.3d 247, 251 (7th
Cir. 1994) among other authorities). As the Seventh Circuit
recently explained, a complaint must give “enough
details about the subject-matter of the case to present a
story that holds together.” Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010).
the plaintiff does not need to plead facts that establish
each element of a cause of action and, “[a]t this stage
the plaintiff receives the benefit of imagination, so long as
the hypotheses are consistent with the complaint.”
Sanjuan, 40 F.3d at 251. Even if the truth of the
facts alleged appears doubtful, and recovery remote or
unlikely, the court cannot dismiss a complaint for failure to
state a claim if, when the facts pleaded are taken as true, a
plaintiff has “nudged their claims across the line from
conceivable to plausible.” Twombly, 550 U.S.
at 555, 570.
order to sue a municipality under Section 1983, a plaintiff
must assert and ultimately prove that his constitutional
rights were violated by some official policy or custom of the
municipality. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 694 (1978). One way to satisfy Monell
is to demonstrate the existence of a pattern or practice so
widespread that it rises to a level of policy which can be
fairly attributed to the municipality. Calhoun v.
Ramsey, 408 F.3d 375, 379 (7th Cir. 2005). To succeed on
a claim for failure to train and/or supervise a police force,
a plaintiff must show that defendants failed to train their
officers in a relevant respect, and that the failure to train
was a deliberate indifference to its citizens' rights.
Palmquist v. Selvik, 111 F.3d 1332, 1343 (7th Cir.
1997). Defendants assert that plaintiff's allegations are
simply recitation of boilerplate law on pattern or practice
liability as described above, which lack the specificity
required by Twombly and Iqbal.
are correct that recitations of boilerplate law are
insufficient to state a claim for a Section 1983 claim based
on pattern or practice liability. See, e.g., Strauss v.
City of Chicago, 760 F.2d 765, 766-67 (7th Cir. 1985).
However, plaintiff's allegations contain more than
boilerplate allegations. Plaintiff asserts that defendants
shot and killed John Edward Brown, II, in this case, but
plaintiff also alleges that defendants used greater force
than necessary in other situations, specifically:
“Discharging firearms at domesticated animals secured
in their owner's home” and “Breaking
automobile windows and subduing passengers via Taser for
seemingly minor, or no offense(s) whatsoever.” (DE # 1
at 12.) These allegations avoid the pitfall of basing a
policy or custom claim entirely on one's own experience.
Cf. Grieveson v. Anderson, 538 F.3d 763, 774 (7th
Cir. 2008). Further, they place defendants on notice of the
basis for plaintiff's pattern or practice claim.
Fematt v. City of Chicago, No. 11 C 1530, 2012 WL
698814, at *5 (N.D. Ill. Mar. 1, 2012) (complaint containing
several examples of defendant's knowledge of police
misconduct and failure to take action gave defendant fair
notice of claim and grounds upon which it rested).
Accordingly, the court denies plaintiff's motion to
dismiss Count II of the complaint against defendants.
Rule 12(f) Motion to Strike
unusual move, defendants also move to strike, under Federal
Rule of Civil Procedure 12(f), plaintiff's allegation
that defendants employed a “shoot first, ask questions
later” policy as a highly inflammatory accusation
designed to garner media attention. While Rule 12(f) allows a
court to strike “from any pleading any insufficient
defense or any redundant, immaterial, impertinent or
scandalous matter, ” motions to strike are generally
disfavored and are usually only granted in situations in
which the contested material bears no possible relation to
the controversy or causes some prejudice to the moving party.
Talbot v. Robert Matthews Distrib. Co., 961 F.2d
654, 664 (7th Cir. 1992).
case, the use of the phrase “shoot first, ask questions
later” is a description of the particular pattern or
practice that plaintiff alleges defendants employed. It bears
a strong relation to the case against defendants, and is
clearly material and pertinent, as the case itself hinges on
whether defendants promulgated an improper pattern or
practice. Compare Delta Consulting Grp., Inc. v. R.
Randle Const., Inc.,554 F.3d 1133, 1142 (7th Cir. 2009)
(affirming district court's decision to strike portions
of complaint regarding document that undisputedly never
existed), with In re Asbestos Cases, No. 86 C 1739,
1990 WL 36790, at *4 (N.D. Ill. Mar. 8, 1990) (allegations
regarding the time and ...