United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE.
matter is before the Court on Defendants [sic] Sheriff John
Buncich and Lake County Sheriff's Department Motion to
Dismiss Plaintiffs' Amended Complaint [DE 26], filed by
Defendants Sheriff John Buncich and the Lake County
Sheriff's Department (“the Department”) on
May 25, 2016. Plaintiffs David Otten and Renee Otten filed a
response on June 9, 2016, and Defendants filed a reply on
June 20, 2016.
filed an Amended Complaint on April 25, 2016, against
Defendants Lake County Sheriff's Department, Sergeant
Bosse, Officer B. Zabrecky, and Sheriff John Buncich.
Plaintiffs allege violations of 42 U.S.C. § 1983 and of
Indiana state law. As part of their prayer for relief,
Plaintiffs request that the Court award punitive damages to
Amended Complaint, Plaintiffs make the following allegations.
On or about February 14, 2015, Sergeant Bosse and Officer
Zabrecky responded to a radio dispatch in the area of 6200
West 85th Street in Crown Point, Lake County, Indiana. Upon
arriving, Bosse and Zabrecky observed Ms. Otten walking along
the road. Bosse and Zabrecky approached Ms. Otten and ordered
her into their vehicle so that they could take her home.
Bosse and Zabrecky took Ms. Otten to her home, and they
requested consent to enter the home without advising Ms.
Otten of her right to consult with an attorney. Ms. Otten did
not give her consent. Bosse and Zabrecky then entered the
home and followed Ms. Otten to her bedroom where Mr. Otten
and Zabrecky woke Mr. Otten and ordered him to provide his
identification although Mr. Otten had not violated any law.
In the attempt to obtain Mr. Otten's identification,
Bosse and Zabrecky pushed Mr. Otten back into his bed. A
fight ensued, and Bosse and Zabrecky used a stun gun on Mr.
Otten several times and struck him over the head. Mr. Otten
was then placed in handcuffs. During the altercation, Ms.
Otten voiced her displeasure regarding the treatment of her
husband, and she was arrested.
and Zabrecky's actions were taken as the result of a
policy developed and implemented by Buncich that required
Lake County police officers to demand identification from all
persons that they come into contact with. Bosse and Zabrecky
testified under oath that the Department had this policy and
that they were acting in accordance with it. In addition,
Buncich developed and implemented a policy that subjected an
individual to arrest if he or she refused to provide
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint and not the
merits of the suit. See Gibson v. City of Chi., 910
F.2d 1510, 1520 (7th Cir. 1990). In ruling on such a motion,
the Court accepts as true all of the well- pleaded facts
alleged by the plaintiff and all reasonable inferences that
can be drawn therefrom. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); see also
Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir.
survive a 12(b)(6) motion to dismiss for failure to state a
claim, the complaint must first comply with Rule 8(a) by
providing “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), such that the defendant is given
“fair notice of what the . . . claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at 555
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009). Second, the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 570); see also Tamayo,
526 F.3d at 1082.
Motion to Dismiss, Buncich contends that he is entitled to
dismissal of all claims in Counts I through XII because
Plaintiffs do not allege that Buncich personally participated
in any of the acts alleged by Plaintiffs. The Department
claims that Plaintiffs' § 1983 Monell
claims against it contain boilerplate allegations of de facto
municipal policy and do not allege the specific pattern or
series of incidents necessary to survive a motion to dismiss.
The Department also contends that the state law claims
against it in Counts IX, X, XI, and XII do not give fair
notice of the claims that are asserted and that the claims
are not permissible under the Indiana Tort Claims Act.
Finally, the Department asserts that the demand for punitive
damages must be dismissed because such claims are not
permitted by law. The Court considers each argument in turn.
Claims against ...