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Houzanme v. Rush

United States District Court, S.D. Indiana, Indianapolis Division

March 28, 2017

ULRICH TIBAUT HOUZANME Plaintiff,
v.
HON. LORETTA H. RUSH, Chief Justice of the Indiana Supreme Court, et al., Defendants.

          ENTRY GRANTING MOTION TO DISMISS OF STATE DEFENDANTS, DISMISSING ACTION AS TO DEFENDANT SALLY JO HOUZANME AND DIRECTING ENTRY OF FINAL JUDGMENT

          Hon. William T. Lawrence, Judge.

         For the reasons explained in this Entry, the defendants' motion to dismiss is granted and the claim against the sole defendant who has not filed a motion to dismiss is also dismissed.

         I. Parties

         Ulrich Tibaut Houzanme ("Ulrich") and Sally Jo Houzanme ("Sally Jo") were formerly husband and wife. They are the parents of one child, their marriage was dissolved in 2007, and they have battled in court over child custody, child support, and related issues.

         Ulrich is the plaintiff in this action. Sally Jo is one of several defendants. The other defendants (sometimes referred to hereafter as "the State defendants") are (1) Indiana Supreme Court Chief Justice Loretta H. Rush, (2) Judge Michael Barnes of the Indiana Court of Appeals, (3) the Indiana Supreme Court, and (4) the Indiana Court of Appeals. The two defendant judges are sometimes referred to as "the judicial defendants" and the other defendants are sometimes referred to as "the court defendants."

         II. Claims and Procedural Posture

         Ulrich was the appellant in an action in the Indiana Court of Appeals docketed as No. 49A04-1505-DR-434 (referred to hereafter as "the appeal"). Stated generally, the issue presented in the appeal was whether the lower court had erred in denying his motion to modify child custody and support. Ulrich's specific argument was that the Magistrate of the lower court did not have jurisdiction to decide the petition for modification. The appeal resulted in the decision of the lower court being affirmed. Houzanme v. Houzanme, 41 N.E.3d 305 (Ind.Ct.App. 2015)(Table), transfer denied, 46 N.E.3d 445 (Ind. 2016). Judge Barnes was a member of the panel of the Indiana Court of Appeals which decided the appeal. Chief Justice Rush serves on the Indiana Supreme Court, which denied Ulrich's petition to transfer.

         Ulrich alleges in this action that his civil rights were violated on August 26, 2015, on October 8, 2015, and on October 14, 2015 because he was not served with the Court of Appeals' orders and decision. He contends that he was thereby "denied a fair trial." This is the claim against the State defendants. His claim against Sally Jo is that on August 19, 2015, she failed to serve him with a copy of her appellee's brief. He seeks compensatory damages for injury to his finances, reputation, time, etc., and also seeks repair to his credit history, a public apology, and reformation of the court's practices.

         The State defendants have filed a motion to dismiss based on their argument that the complaint fails to state a claim upon which relief can be granted. Ulrich has filed a memorandum in opposition to that motion to dismiss. In addition to the formal motion to dismiss filed by the State defendants, the Court has directed Ulrich to identify a viable claim against Sally Jo.

         III. The Motion to Dismiss

         A. Legal Standard

         Federal 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). Some aspects of the State defendants' arguments touch on the Court's jurisdiction, but it is of no consequence that they have brought their motion pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure rather than as an explicit jurisdictional challenge in combination with Rule 12(b)(1). See Snyder v. Smith, 736 F.2d 409, 419 (7th Cir. 1984) (overlooking erroneous labeling of motion to dismiss), cert, denied, 469 U.S. 1037 (1984), overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998).

         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). "To avoid dismissal, the complaint must 'state a claim to relief that is plausible on its face.'" Jackson v. Blitt & Gaines, P.C, 833 F.3d 860, 862 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 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). In applying the foregoing standard, however, legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 201 l)(citing Iqbal, 566 U.S. at 681).

         "A complaint must always ... allege 'enough facts to state a claim to relief that is plausible on its face.'" Limestone Development Corp. v. Village of Lemont, III,520 F.3d 797, 803 (7th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly,127 S.Ct. 1955, 1974 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the ...


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