United States District Court, N.D. Indiana
CRAIG A. LOZANOVSKI, Plaintiff,
CITY OF CROWN POINT, et al., Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN, JUDGE
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.
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.)
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.) 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.
“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.
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).
Supreme Court has articulated the following standard
regarding factual allegations that are required to survive
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
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.
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 ...