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Moreno-Avalos v. City of Hammond Indiana

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

January 4, 2017

SONIA MORENO-AVALOS, Plaintiff,
v.
CITY OF HAMMOND INDIANA, et al., Defendants.

          OPINION AND ORDER

          RUDY LOZANO, Judge United States District Court

         This matter is before the Court on the Defendants' Motion for Order of Partial Dismissal, filed by Defendants, Thomas McDermott, Tom Dabertin, Kim Nordhoff, Kurt Koch, and Darren Taylor, on December 2, 2016 (DE #55). For the reasons set forth below, the motion for partial dismissal (DE #55) is GRANTED. The Clerk is ORDERED to DISMISS WITH PREJUDICE any and all official capacity claims made under 42 U.S.C. § 1983 against Defendants McDermott, Koch, Nordhoff, Dabertin, and Taylor. The Clerk is also ORDERED to DISMISS WITH PREJUDICE any and all individual capacity claims made under 42 U.S.C. § 1983 against Defendants McDermott, Taylor, and Dabertin. This case remains pending against defendant, the City of Hammond Indiana. Additionally, Counts IV, V, and VII remain pending against Defendant Nordhoff.

         BACKGROUND

         Plaintiff alleges in her second amended complaint that on November 7, 2011, she made a complaint to Mayor Thomas McDermott and his assistant, Tom Dabertin, against the City of Hammond Building Commissioner, Kurt Koch, and a City of Hammond Inspector, Kim Nordhoff, “seeking to petition a governmental redress of grievance.” (DE #53, Count I ¶ 1.) Moreno-Avalos alleges that one month later, the City of Hammond retaliated by ordering the demolition of her building. (Id. ¶ 2.)

         The second amended complaint goes on to allege that on September 26, 2013, Moreno-Avalos filed a lawsuit in the Northern District of Indiana. (Id. ¶ 9.) On January 30, 2015, the Court made a ruling on the pleadings in favor of the City of Hammond. (Id.) Four months later, the City of Hammond demolished Moreno-Avalos' property. (Id.) Plaintiff asserts that the City of Hammond demolished her property because she made complaints to the Mayor's office and filed a lawsuit about alleged unfair treatment and illegal building citations. (Id.)

         Defendants make the instant motion under Federal Rule of Civil Procedure Rule 12(b)(6), requesting that all of the official capacity claims under section 1983 be dismissed against Defendants McDermott, Koch, Nordhoff, Dabertin, and Taylor; and that the individual capacity claims under section 1983 be dismissed against Defendants McDermott, Dabertin, and Taylor. Defendant, City of Hammond Indiana, does not join this motion to dismiss; thus the claims against it remain pending. Additionally, Defendants specifically move for dismissal and discuss the section 1983 claims against the Defendants (which are set forth in Counts I-III of the second amended complaint), but make no mention or set forth any argument about the other claims set forth in Counts IV-VII. As such, Counts IV-VII remain pending in this action.

         Plaintiff filed a response on December 11, 2016 (DE #59). Defendants filed a reply on December 13, 2016 (DE #61). Consequently, the current motion is fully briefed and ripe for adjudication.

         DISCUSSION

         Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed if it fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Allegations other than fraud and mistake are governed by the pleading standard outlined in Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement” that the pleader is entitled to relief. Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011).

         In order to survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must be accepted as true, and all reasonable inferences from those facts must be resolved in the plaintiff's favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008). However, pleadings consisting of no more than mere conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 678-79. This includes legal conclusions couched as factual allegations, as well as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

         I. Official Capacity Claims Against the Individual Defendants

         Plaintiff has sued the City of Hammond, Indiana, as well as the named defendants. “If a plaintiff seeks to sue public officials in their personal capacities or in both their personal and official capacities, the plaintiff should expressly state so in the complaint.” Meadows v. State of Indiana, 854 F.2d 1068, 1069 (7th Cir. 1988). In this case, Plaintiff does not specify in the caption of the lawsuit whether the individual defendants have been sued in their individual or official capacities (or both). If the plaintiff fails to specify the capacity in which the defendant is sued, the Court ordinarily construes a section 1983 complaint against defendants as in their official capacity only. Stevens v. Umsted, 131 F.3d 697, 706 (7th Cir. 1997); Rangel v. Reynolds, 607 F.Supp.2d 911, 921 (N.D. Ind. 2009).

         The court should “also consider the manner in which the parties have treated the suit” in determining the capacity under which the defendant is being sued. Stevens, 131 F.3d at 707 (quoting Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988)). Here, in Count I, Plaintiff alleges that Kurt Koch, “in his official capacity as Commissioner of Buildings, prohibited the Plaintiff from petitioning the Mayor to address her grievance against Building Inspector Kim Nordhoff” and that count states it is against “Kim Nordhoff, in her official capacity, and Kurt Koch in his official capacity.” (DE #53 at 3, 5.) Count II is labeled a section 1983 claim against “Kim Nordhoff, in her official capacity, and Kurt Koch in his official capacity.” (DE #53 at 6.) Count III is labeled a section 1983 claim against “Kim Nordhoff, in her official capacity, and Darren Taylor in his official and individual capacity.” (Id. at 8.) Thus, with the exception of defendant Taylor (who was specifically named in his individual capacity in the body of the complaint), when Plaintiff did specify in the body of the complaint the capacity in which the defendants were being sued, it was in their official capacity.

         Official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)). If a plaintiff brings suit against a government entity, any claim against an officer of that entity in his or her official capacity is redundant and should be dismissed. Comer v. Housing Auth. of City of Gary, Ind., 615 F.Supp.2d 785, 789-90 (N.D. Ind. 2009); see also Graham, 473 U.S. at 165-66; Schmidling v. City of Chicago, 1 F.3d 494, 495 n.1 (7th Cir. 1993)(dismissing the mayor from suit in his official capacity because the same claims were being made against the city); Bratton v. Town of Fortville, No. 1:09-cv-1391, 2010 WL 2291853, at *4 (S.D. Ind. June 2, 2010) (dismissing official-capacity claims against members of town council as duplicative of the claims against the town); Doffin v. Ballas, No. 2:12-CV-441-JD-PRC, 2013 WL 3777231, at *8-9 (N.D. Ind. July 18, 2013) (dismissing officers sued in their official capacity because it was ...


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