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Lozanovski v. City of Crown Point

United States District Court, N.D. Indiana

January 24, 2017

CITY OF CROWN POINT, et al., Defendants.



         This matter comes before the Court on Defendants Scott Bourrell, Derrell Josleyn, Robert Ballas, Mille Knezevic (collectively “the Defendant Officers”), and City of Crown Point, Indiana's Motion to Dismiss [ECF No. 26] the Amended Complaint [ECF No. 25] of Plaintiff Craig Lozanovski. The City of Crown Point moved to dismiss pursuant to Rule 12(b)(6), asserting that the Amended Complaint fails to state a claim upon which relief can be granted, and all Defendants moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5), asserting that they received insufficient service of process. On August 29, 2016, the Plaintiff filed his Response [ECF No. 30] to the Motion. The Defendants' Reply [ECF No. 31] was entered September 8, 2016. This matter is now ripe for the Court's review.


         At about 6:30 p.m. on December 17, 2013, “Officer Bourrell came to the Crown Point Theater . . . to investigate an alleged harassment complaint against the Plaintiff.” (Am. Compl. ¶ 9, ECF No. 25.) Finding the Theater locked, Officer Bourrell knocked on the ticket booth window, at which point the Plaintiff opened the window and said “Hello, how can I help you?” (Id. ¶¶ 9-10.) Officer Bourrell said “Open the door I need to talk to you, ” so the Plaintiff opened the main entrance door and met Officer Bourrell “about four feet into the theater.” (Id. ¶¶ 11- 13.) The Plaintiff once more asked if he could help Officer Bourrell while placing his hands in his jacket pockets, to which Officer Bourrell said, “Take your hands out of your pocket[s].” (Id. ¶¶ 13-14.) He did not immediately take his hands out of his pockets, so Officer Bourrell “put his hand on his service revolver.” (Id. ¶¶ 15-16.) In response, the Plaintiff removed his hands from his pockets, raised them into the air, and stated “I have no weapons.” (Id. ¶ 17.)

         Officer Bourrell ordered the Plaintiff outside, he grabbed the “Plaintiff by the jacket and pulled him through the doorway and began punching Plaintiff in the face, ” twelve or fifteen times. (Id. ¶¶ 18-21.) Once outside, Officer Bourrell ordered the Plaintiff to “[g]et to the ground” while still punching him, but the Plaintiff hesitated because there was “ice and snow on the ground.” (Id. ¶¶ 22, 24.) “At that point, Officer Ballas put Plaintiff in a choke hold and wrestled him to the ground” and, while “laying face down on the ground with his hands at his side, ” Officer Josleyn used his Taser on the Plaintiff's right shoulder twice. (Id. ¶¶ 26-28.)[1] Officer Knezevic eventually arrived on the scene, “did nothing to stop the beating and abuse of the Plaintiff, ” and instead joined in. (Id. ¶ 29.) Finally, the “Plaintiff was handcuffed and taken to the Crown Point Police station.” (Id. ¶ 30.)[2]

         The “Plaintiff was treated at the hospital and then released to his father, ” “never returned to work, ” and in May 2014 “was awarded social security disability . . . and is traumatized when he goes into the public.” (Id. ¶¶ 32-33.) The Plaintiff alleges claims under 42 U.S.C. § 1983 against the City of Crown Point for violation of his Fourth and Fourteenth Amendment rights, and against the Defendant Officers for use of excessive force in violation of his Fourth and Fourteenth Amendment rights. (Id. ¶¶ 46-48.)


         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. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995).

         The Supreme Court has articulated the following standard regarding factual allegations that are required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         Although the court must accept as true all well-pleaded facts and draw all permissible inferences in the plaintiff's favor, it need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing Twombly at 555). Legal conclusions can provide a complaint's framework, but unless well-pleaded factual allegations move the claims from conceivable to plausible, they are insufficient to state a claim. Id. at 680. A plaintiff can also plead himself out of court if he pleads facts that preclude relief. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007); McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). Finally, determining whether a complaint states a plausible claim for relief requires a reviewing court to “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.


         This Court's subject-matter jurisdiction over the § 1983 claims arises under 28 U.S.C. § 1331. The Court first analyzes the sufficiency of the Plaintiff's § 1983 claim against the City of Crown Point ...

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