United States District Court, N.D. Indiana
OPINION AND ORDER
William C. Lee, Judge United States District Court
matter is before the court on a motion to dismiss filed by
Defendants Lake County Sheriff's Department and Lake
County Sheriff John Buncich (“Sheriff
Defendants”) on November 15, 2016. The plaintiff,
Rodolfo Cano, Jr. (“Cano”), filed his response on
November 29, 2016, to which the Sheriff Defendants filed
their reply on December 9, 2016.
filed his Amended Complaint on September 20, 2016 naming the
Lake County Sheriff's Department and Lake County Sheriff
John Buncich. [DE 4]. Cano sets forth one claim against the
Sheriff Defendants, in Count III entitled “Lake County
Sheriff's Department, Lake County, Indiana and Sheriff
John Buncich”. (Pl's Amended Compl., p. 9).
claims arise out of alleged conduct that occurred on or about
March 12, 2016. (Pl's Amended Compl., p. 3). Cano was
arrested by the New Chicago, Indiana police department
pursuant to an arrest warrant. (Pl's Amended Compl., pp.
3 & 4). At the time Plaintiff was placed in the custody
of the Lake County Jail, Cano allegedly advised Officer John
Doe that he was not the person named in the arrest warrant.
(Pl's Amended Compl., p. 4). Officer John Doe allegedly
advised that he had no choice to process Cano into jail due
to policies, customs, and/or procedures of the Lake County
Jail. (Pl's Amended Compl., p. 5). After approximately
two days, Cano was released from the Lake County Jail.
(Pl's Amended Compl., p. 5). Cano has brought claims
pursuant to 42 U.S.C. §§ 1983 and 1988 alleging
unreasonable seizure and false arrest in violation of his
Constitutional rights. The Sheriff Defendants seek to have
all claims against them dismissed for failure to state a
Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint when it fails to set forth a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a Rule 12(b)(6) motion to dismiss, the court must
decide whether the complaint satisfies the “notice
pleading” standard. Indep. Trust Corp. v. Stewart
Info. Serv's Corp., 665 F.3d 930, 934 (7th Cir.
2012). In determining the sufficiency of a claim, the court
construes the complaint in the light most favorable to the
nonmoving party, accepts all well-pleaded facts as true, and
draws all inferences in the nonmoving party's favor.
Reynolds v. CB Sports Bar, Inc. 623 F.3d 1143, 1146
(7th Cir. 2010).
Supreme Court has adopted a two prong approach when
considering a Rule 12(b)(6) motion to dismiss. Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009). First, pleadings
consisting of no more than mere conclusions are not entitled
to the assumption of truth. Id. This includes legal
conclusions couched as factual allegations, as well as
“threadbare recitals of elements of a cause of action,
supported by mere conclusory statements.” Id.
at 678. Second, if well-pleaded factual allegations are
present in the complaint, courts should “assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679. The
complaint must allege that the plaintiff has a right to
relief by providing allegations that raise a right to relief
above the speculative level. Maddox v. Love, 655
F.3d 709, 718 (7th Cir. 2011). Factual allegations
“that are merely consistent with a defendant's
liability… stop short of the line between possibility
and plausibility of entitlement to relief.”
Iqbal, 556 U.S. at 677-78.
support of their motion to dismiss, the Sheriff Defendants
first argue that Cano's claims against Sheriff Buncich
should be construed as official capacity claims against the
Lake County Sheriff's Department. In his response brief,
Cano acknowledges that he has not made a claim against
Sheriff John Buncich in his individual capacity (Pl's
Resp., p. 4). Accordingly, the court will dismiss all claims
against Defendant Sheriff Buncich in his individual capacity.
Sheriff Defendants next argue that Defendant Sheriff Buncich
is entitled to dismissal of all official capacity claims
because a suit against Sheriff Buncich in his official
capacity is construed as a suit against the Lake County
Sheriff's Department. This argument is well-taken. It is
clear that all claims against Sheriff Buncich in his official
capacity fail because an official capacity claim is construed
as a suit against the municipal entity. A suit against a
public employee in his official capacity is equivalent to a
suit against the government entity. Kentucky v,
Graham, 473 U.S. 159, 165-66 (1985). The claims asserted
against Sheriff Buncich in his official capacity are in fact
claims against the Lake County Sheriff's Department.
See Estate of Szuflita v. City of South Bend, Ind.,
No. 3:10-CV-346, 2012 WL 1095377 at *3, citing Yeksigian
v. Nappi, 900 F.2d 101, 103 (7th Cir. 1990)(the court
granted summary judgment on official capacity claims, when
entity was named in the same action). In the present case,
Cano has failed to state in which capacity Sheriff Buncich is
named and the Lake County Sheriff's Department is a named
defendant as well. Therefore, a suit against Sheriff Buncich
in his official capacity is construed as a suit against the
municipality, is redundant and adds nothing to this cause of
action. The official capacity claims will be dismissed with
prejudice. Smith v. Sangamon County Sheriff, 2008 WL
2277683 (C.D. Ill. 2008).
the Sheriff Defendants argue that they are entitled to
dismissal of all claims alleged in Count III because Count
III fails to properly allege a § 1983 Monell
claim against the municipal defendants. The Sheriff
Defendants assert that Count III must be dismissed because
Cano has merely made boilerplate allegations of municipal
policy relating to a single incident, all of which does not
rise to the level required to survive a Rule 12(b)(6) motion.
plaintiff may establish the existence of official policy or
custom by showing: (1) the existence of an expressed
municipal policy that caused the alleged violation of his
constitutional rights; (2) establishing that the person who
committed the constitutional tort was an official with policy
making authority; or (3) establishing the existence of
pattern, practice, or custom so widespread or persistent that
it rises to a level of a policy which can be fairly
attributed to the municipality. Baxter v. Vigo County
School Corp., 26 F.3d 728, 735 (7th Cir. 1994). Further
a plaintiff must establish that the policy was a moving force
behind the injuries alleged. Board of Commissioners of
Bryan County, Okl. v. Brown, 520 U.S. 397, 411 (1997).
Circuit precedent requires dismissal of claims based upon
bare allegations of custom or policy under Monell
where a plaintiff has alleged no facts to suggest that the
inadequate policies of which he complains actually exist.
Strauss v. City of Chicago, 760 F.2d 765, 767 (7th
Cir. 1985). Pursuant to Strauss, the court will
dismiss a complaint when it rests solely on conclusory
allegations of a de facto municipal policy and fails
to allege any well-pled facts of any occurrence or policy
other than the single incident involving the plaintiff.
Id. at 768. The Strauss court stated the
plaintiff may not simply “track Monell's
requirement of official policy” or “add
Monell boilerplate allegations, and proceed to
discovery in the hope of turning up some evidence to support
the claims made.” Id.; see also Rodgers v.
Lincoln Towing Services, Inc., 596 F.Supp. 13, 20 (N.D.
Ill. 1984) (claims “based on wholly conclusory
allegations of a de facto municipal policy, the
existence of which is to be inferred not from something the
municipality did but rather from its inaction, constitute one
of the most prevalent forms of abuse in section 1983
Strauss, the plaintiff attempted to establish the
minimal facts required by producing statistical summaries
from the Office of Professional Standards regarding
complaints filed with the police department.
Strauss, 760 F.2d at 768. The Court found that these
statistics, without more, do not meet the pleading threshold
and granted the defendant's motion to dismiss.
Id. at 769. The Court stated that “[p]eople
may file a complaint for many reasons or for no reason at
all. That they filed complaints does not indicate that the
policies that Strauss alleges exist do in fact exist and did
contribute to his injury.” Id. Similarly in
Nevinger v. Town of Goodland, Ind. and directly on
point to the instant case, plaintiff “tracked”
the elements of a Monell claim in his complaint by
stating that the facts that were alleged were
“consistent with an institutionalized practice, ”
and “despite knowledge of these institutionalized
practices” the defendants failed to take action.
Nevinger v. Town of Goodland, Ind., No.: 4:11-cv-25
(N.D. Ind. July 12, 2011), 2011 WL 2694662, at *4. The
Nevinger complaint went on to make allegations of
failure to train, failure to discipline, and failure to take
adequate precautions in hiring. Id. The court held
that the bare allegations failed to provide sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face. Id. at 5. Reasoning
that plaintiff failed to allege a single fact outside the
incident spurring the complaint to support any claim under
Monell and that the boilerplate allegations are
unsupported by any facts other than the single incident, the
court in Nevinger dismissed the complaint.
present case, the Sheriff Defendants point out that
Cano's claims in Count III rest solely on conclusory
allegations of de facto municipal policy and fail to
allege any well pled facts of any occurrence or policy other
than the single incident ...