United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
late night of August 7 and early morning of August 8, 2014,
Plaintiff Bradford Bohanon and Defendants Officer John
“Nick” Serban and Officer Michael Reiger were all
drinking at Mikie's Pub when a physical altercation
ensued between the officers and Mr. Bohanon. [Filing No.
11 at 3-5.] Mr. Bohanon claims he was battered by the
officers while inside and outside of the establishment, and
that he sustained injuries as a result of the attack.
[Filing No. 11 at 6-7.] On August 5, 2016, Mr.
Bohanon filed this litigation against Defendants Officer
Reiger, Officer Serban, and the City of Indianapolis,
alleging several claims pursuant to 42 U.S.C. § 1983.
[Filing No. 1.] On December 1, 2016, Mr.
Bohanon filed an Amended Complaint adding 5135 Holdings, Inc.
d/b/a Mikie's Pub (“Mikie's
Pub”) as a party defendant. [Filing No.
11.] Mikie's Pub has now filed a Motion to Dismiss
Plaintiff's Amended Complaint Against It Pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that the
allegations of Mr. Bohanon's original and amended
complaints establish that his claims against Mikie's Pub
are time-barred by the statute of limitations. [Filing
No. 30.] For the reasons detailed below, the Court
grants Mikie's Pub's motion to dismiss.
Rule of Civil Procedure 8(a)(2) “requires only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ.
Pro. 8(a)(2)). “Specific facts are not necessary, the
statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Erickson, 551 U.S. at 93 (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
motion to dismiss asks whether the complaint
“contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active
Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th
Cir. 2011). The Court will not accept legal conclusions or
conclusory allegations as sufficient to state a claim for
relief. See McCauley v. City of Chicago,
671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must
plausibly state an entitlement to relief “to a degree
that rises above the speculative level.” Munson v.
Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This
plausibility determination is “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
statute of limitations is an affirmative defense,
seeFed. R. Civ. Pro. 8(c), and need not be addressed
in the complaint. Barry Aviation Inc. v. Land O'Lakes
Mun. Airport Comm'n, 377 F.3d 682, 688 (7th Cir.
2004) (citing U.S. Gypsum Co. v. Indiana Gas Co.,
Inc., 350 F.3d 623, 626 (7th Cir. 2003)). Although a
plaintiff's complaint need not plead around an
affirmative defense, “[i]f the allegations, for
example, show that relief is barred by the applicable statute
of limitations, the complaint is subject to dismissal for
failure to state a claim.” Jones v. Bock, 549
U.S. 199, 215 (2007). “A litigant may plead itself out
of court by alleging (and thus admitting) the ingredients of
a defense . . . .” Barry Aviation, 377 F.3d at
688 (citing Gypsum, 350 F.3d at 626).
Bohanon's Amended Complaint makes the following
allegations which are assumed to be true for purposes of this
motion. During the evening and early morning hours of August
7-8, 2014,  Mr. Bohanon was at Mikie's Pub
drinking alcoholic beverages. [Filing No. 11 at 3.]
According to Mr. Bohanon, Officer Reiger and Officer Serban
were also at Mikie's Pub consuming alcoholic beverages.
[Filing No. 11 at 3.] Mr. Bohanon alleges that he
was questioning the bartender about the accuracy of his bill.
[Filing No. 11 at 4.] Mr. Bohannon alleges that
Officer Serban then approached him and after a brief
interaction between the two, Officer Serban grabbed Mr.
Bohanon around his throat, applying a vascular neck
restraint. [Filing No. 11 at 4.] He claims that
Officer Reiger approached him and while he was being
restrained by Officer Serban, Officer Reiger began striking
Mr. Bohanon with his “fists and/or feet.”
[Filing No. 11 at 4.] Mr. Bohanon alleges that after
he became unconscious, Officers Reiger and Serban continued
to strike Mr. Bohanon. [Filing No. 11 at 5.]
Bohanon claims that “Mikie's Pub did not attempt to
contact any other public safety officials . . . to protect
[Mr.] Bohanon from an exacerbation of his injuries . . .
.” [Filing No. 11 at 5.] He alleges that while
he remained unconscious, Officer Reiger dragged Mr. Bohanon
outside into a dark, secluded area and that both officers
continued to “punch, stomp, knee, and kick” his
upper body. [Filing No. 11 at 5.] Mr. Bohanon claims
that even after he was taken outside, Mikie's Pub did not
attempt to “intervene, stop, or contact public safety
professionals to protect” him. [Filing No. 11 at
5.] Mr. Bohanon alleges that at some point during the
incident, Officers “Serban and/or Reiger removed [Mr.]
Bohanon's wallet and confiscated approximately
$180.00.” [Filing No. 11 at 6.] According to
Mr. Bohanon, the officers did not arrest Mr. Bohanon, and
both returned to Mikie's Pub to continue drinking.
[Filing No. 11 at 6.]
August 5, 2016, Mr. Bohanon filed his original complaint
against Officer Reiger and Officer Serban for assault,
battery, false imprisonment, and conversion pursuant to 42
U.S.C. § 1983, and the City of Indianapolis for
respondeat superior pursuant to 42 U.S.C. § 1983.
[Filing No. 1.] On December 1, 2016, Mr. Bohanon
filed an Amended Complaint adding Mikie's Pub as a party
defendant and pursuing state law claims for premises
liability and a violation of Indiana's Dram Shop Act.
[Filing No. 11.] Mikie's Pub has now filed a
Motion to Dismiss Plaintiff's Amended Complaint Against
It Pursuant to Federal Rule of Civil Procedure 12(b)(6),
arguing that Mr. Bohanon's claims against Mikie's Pub
are time-barred under the applicable statute of limitations.
[Filing No. 30.] Mr. Bohanon opposes that motion.
[Filing No. 53.] The motion is now ripe for the
discussing the merits of the case, the Court will first
address a procedural issue. Mr. Bohanon alleges new facts in
his response brief that he claims provide context to the
Amended Complaint, and he filed two exhibits for the
Court's consideration that pertain to state court
criminal proceedings against Officer Reiger and Officer
Serban. [Filing No. 53 at 2-4.]
response brief, Mr. Bohanon claims that on September 10,
2014, the Marion County Prosecutor's Office
(“MCPO”) filed a criminal action in
state court against Officer Serban and Officer Reiger
stemming from the physical altercation with Mr. Bohanon at
Mikie's Pub. [Filing No. 53 at 2-3.] He claims
that the state court entered a no-contact order on September
15, 2014 that prohibited Officer Serban and Officer Reiger
from contacting Mr. Bohanon during the pendency of their
criminal proceedings. [Filing No. 53 at 3.] He
alleges that the MCPO “did not make any extra judicial
statements by means of public communication, and withheld
documents, video surveillance of the incident, and materials
obtained and developed during the criminal investigation and
prosecution of [the officers].” [Filing No. 53 at
3.] Mr. Bohanon claims he was unable to obtain
“information necessary to understand the full extent of
the facts and circumstances” regarding Mikie's
Pub's involvement until after the criminal trial
concluded on November 17, 2016. [Filing No. 53 at
3.] He alleges that this is important because he was
rendered unconscious for extended periods of time due to the
physical altercation. [Fili ...