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Otten v. Lake County Sheriff's Department

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

November 29, 2016

LAKE COUNTY SHERIFF'S DEPARTMENT, SERGEANT BOSSE in his individual and official capacity, OFFICER B. ZABRECKY in his individual and official capacity, and SHERIFF JOHN BUNCICH in his individual capacity, Defendants.



         This 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.


         Plaintiffs 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 Plaintiffs.

         In the 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 was sleeping.

         Bosse 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.

         Bosse 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 identification.

         The 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).


         A 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. 2008).

         To 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.'”[1] Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see also Tamayo, 526 F.3d at 1082.


         In the 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.

         A. Claims against ...

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