United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING MOTION TO DISMISS OF STATE DEFENDANTS,
DISMISSING ACTION AS TO DEFENDANT SALLY JO HOUZANME AND
DIRECTING ENTRY OF FINAL JUDGMENT
William T. Lawrence, Judge.
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
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.
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
Claims and Procedural Posture
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.
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.
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
The Motion to Dismiss
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).
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).
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