United States District Court, N.D. Indiana, Hammond Division
WILLIAM B. CLARK, Plaintiff,
MATTHEW DJUKIC, DAMIAN MURKS; FRANCISCAN ALLIANCE, INC., d/b/a St. Margaret Mercy Hospital, and TOWN OF SCHERERVILLE, IN, Defendants.
OPINION AND ORDER
T. MOODY UNITED STATES DISTRICT COURT JUDGE
William B. Clark alleges that, after a traffic stop, he
consented to having his blood drawn at St. Margaret's
Hospital while in the custody of Schererville police
officers, to confirm his blood alcohol level. (DE #1.) Clark
further alleges that, after the blood draw, he was forcibly
catheterized against his will so that officers could obtain a
urine sample. (Id.) Clark sued, amongst others,
Franciscan Alliance, Inc., the company doing business as St.
Margaret's, for assault, battery, and failure to properly
train its employees. (Id.)
Franciscan's Motion for Summary Judgment
has moved for summary judgment on the claims (DE # 43),
alleging that they sound in medical malpractice and therefore
are barred because Clark failed to present his proposed claim
to a medical review panel before filing the claim in court,
as required by the Indiana Medical Malpractice Act (the
"Act"), Ind. Code § 34-18-8-4.
judgment is appropriate - in fact, is mandated - where there
are no disputed issues of material fact and the movant must
prevail as a matter of law." Dempsey v. Atchison,
Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th
Cir. 1994) (citations and quotation marks omitted). However,
in this case, Franciscan is not entitled to judgment as a
matter of law. This case is clearly controlled by Elliott
v. Rush Memorial Hospital, 928 N.E.2d 634, 640
(Ind.Ct.App. 2010), wherein the Indiana Court of Appeals held
that a claim of forced catheterization to obtain a urine
sample for law enforcement purposes is not a
"malpractice" claim for purposes of the Act. The
Elliott court reasoned: "Elliott's
catheterization clearly was not for his own medical benefit.
It was not related to any treatment he needed for any disease
or injury, but was carried out solely for law enforcement
claim of forced catheterization similarly falls outside of
the purview of the Act, and is not barred for failure to
submit the claim to a medical review panel. Therefore,
Franciscan's motion for summary judgment is denied.
Clark's motion to strike affidavits submitted by
Franciscan in support of its motion for summary judgment (DE
# 51) is denied as moot, as the affidavits are not necessary
to decide the motion for summary judgment.
Clark's Motion to Dismiss
has also moved to dismiss Franciscan's counterclaims
alleging: (1) abuse of process, and (2) "frivolous
litigation." (DE # 16.) Federal Rule of Civil Procedure
12(b)(6) requires the court to dismiss a complaint which
fails to state a claim upon which relief may be granted. A
complaint must go beyond providing "labels and
conclusions" and "be enough to raise a right to
relief above the speculative level." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
order to prevail on an abuse of process claim, Franciscan
must prove that Clark used judicial processes for an end
other than that for which it was designed. Comfax Corp.
v. North Am. Van Lines, Inc., 638 N.E.2d 476, 481
(Ind.Ct.App. 1994). For example, utilizing litigation to
intimidate the other party into signing a contract
constitutes abuse of process. Archem, Inc. v. Simo,
549 N.E.2d 1054, 1061 (Ind.Ct.App. 1990).
case, Franciscan's abuse of process claim is rooted in
its contention that Clark is lying about being forcibly
catheterized. However, this is a matter of credibility to be
assessed by a fact-finder in Clark's case against
Franciscan. Franciscan also claims that Clark seeks to
influence pending criminal charges and harm the reputation of
St. Margaret's with this lawsuit. However, these
allegations are speculative and conclusory, and Franciscan
states no further facts to plausibly suggest that Clark has
used the judicial process in this case for any end other than
to recover damages against Franciscan for assault, battery,
and failure to train its employees. Accordingly, the abuse of
process claim is dismissed.
claim of "frivolous litigation" is also meritless.
Through this claim, Franciscan simply requests attorneys'
fees pursuant to Indiana Code § 34-52-1-1, which permits
fees to the prevailing party if the action was frivolous,
unreasonable, or groundless or was litigated in bad faith.
However, Section 34-52-1-1 is inapplicable in federal court,
Williams v. State Farm Ins. Co., No.
2:09-CV-177-PPS, 2011 WL 2111988, at *2 (N.D. Ind. May 26,
2011), so the claim is dismissed.
foregoing reasons, Franciscan's motion for summary
judgment is DENIED (DE # 43); Clark's Rule 56 motion to
strike is DENIED as moot (DE # 51); and ...