United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO DISMISS
pending before the Court is a Motion to Dismiss filed by
Defendants Prosecutor Terry Curry and Deputy Prosecutor
Barbara Trathen, [Filing No. 23], which Plaintiff Paul McGann
opposes, [Filing No. 41]. For the reasons that follow, the
Court grants the motion in part and denies the motion in
Rule of Civil Procedure 8(a)(2) “requires only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ.
Pro. 8(a)(2)). “Specific facts are not necessary, 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 Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
motion to dismiss asks whether the complaint
“contain[s] 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 Twombly, 550 U.S. at 570).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active
Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th
Cir. 2011). The Court will not accept legal conclusions or
conclusory allegations as sufficient to state a claim for
relief. See McCauley v. City of Chicago, 671 F.3d
611, 617 (7th Cir. 2011). Factual allegations must plausibly
state an entitlement to relief “to a degree that rises
above the speculative level.” Munson v. Gaetz,
673 F.3d 630, 633 (7th Cir. 2012). This plausibility
determination is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id. When a plaintiff
“pleads himself out of court by making allegations
sufficient to defeat the suit, ” dismissal under Rule
12 is appropriate. Vincent v. City Colleges of
Chicago, 485 F.3d 919, 924 (7th Cir. 2007).
with the applicable standard of review set forth above, what
follows are the relevant factual allegations from Mr.
McGann's Complaint against Prosecutor Curry and Deputy
Prosecutor Trathen. These allegations are considered to be
true only for purposes of deciding the pending motion.
24, 2014, Mr. McGann was working as a Marion County
Sheriff's Deputy at the Indianapolis Motor Speedway.
[Filing No. 1 at 3.] He came into contact with Defendant
Zachary Pollack in what is known as the “Coke Lot,
” and Mr. McGann ultimately arrested Mr. Pollack for
resisting law enforcement and possessing alcohol as a minor.
[Filing No. 1 at 3.]
Pollack was charged with Resisting Law Enforcement, as a
Class A misdemeanor, and Illegal Possession of Alcohol by a
Minor, as a Class C misdemeanor. [Filing No. 1 at 4.] The
charges against Mr. Pollack were dismissed in June 2014.
[Filing No. 1 at 4.] On approximately July 1, 2014, Defendant
Sheriff John Layton advised Mr. McGann that he could either
resign as a Sheriff Deputy or be terminated. [Filing No. 1 at
the relevant times, Deputy Prosecutor Trathen worked in the
screening department of the Marion County Prosecutor's
Office. [Filing No. 1 at 5.] Deputy Prosecutor Trathen's
early career as a prosecutor was the basis for a CBS
television program titled “Close to Home.”
[Filing No. 1 at 5.] “Close to Home” was produced
by Zachary Pollack's father, Michael Pollack. [Filing
No. 1 at 5.] Michael Pollack requested that Mr. McGann
be criminally prosecuted. [Filing No. 1 at 5.] “The
criminal investigation into Mr. McGann by the Marion County
Sheriff's Department was personally requested by [Deputy
Prosecutor] Trathen.” [Filing No. 1 at 5.]
October 1, 2014, Mr. McGann was charged with one count of
Official Misconduct, as a Class D felony, and with one count
of Battery Resulting in Bodily Injury, as a Class A
misdemeanor, “for his actions while arresting Zachary
Pollack.” [Filing No. 1 at 4.] Mr. McGann denies
assaulting or battering Mr. Pollack. [Filing No. 1 at 4.] As
a result of the criminal charges against him, “Mr.
McGann was forced [to] resign from the Marion County
Sheriff's office.” [Filing No. 1 at 4.] Mr. McGann
had also been employed as a Marion County Firefighter, and he
was suspended without pay from the Indianapolis Fire
Department. [Filing No. 1 at 3; Filing No. 1 at 5.]
September 17, 2015, a jury found Mr. McGann not guilty on all
charges against him. [Filing No. 1 at 5.] During depositions
for discovery in the criminal case, “sheriff's
deputies testified that they would not have pursued an
investigation of Mr. McGann if not for the insistence of
[Deputy Prosecutor] Trathen.” [Filing No. 1 at 5.] The
evidence presented in the criminal case showed that Mr.
McGann's forced resignation from the Marion County
Sheriff's Office ...