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Orr v. Ferebee

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

April 27, 2017

MOTIQUE ORR, for next friend and minor son, T.M., Plaintiff,
LEWIS D. FEREBEE, in his official capacity, INDIANAPOLIS PUBLIC SCHOOLS, and TERRY GEMMECKE, Defendants.



         Defendants, Lewis D. Ferebee, in his official capacity, and the Indianapolis Public Schools (“IPS”), move to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the court GRANTS their motion.

         I. Background

         Plaintiff, Motique Orr, is the mother of T.M., who at the time of the alleged events, was a sixth grade special needs student at IPS Anna Brochhausen School 88. (Filing No. 1-1, Compl. ¶¶ 2, 6, 7). She alleges that on May 26, 2016, T.M.'s teacher, co-defendant Terry Gemmecke, choked him, hit his head against a wall, and dragged him down a hallway by the neck. (Id. ¶ 14). The department of child services report attached to the complaint indicates Gemmecke was escorting T.M. to the “BAC” area of the school after T.M. got into a confrontation with another student. (Id., Ex. A at 2). Later that day, Plaintiff learned of the incident through a therapist at the school, and met with IPS' 88 staff and police “to protest the action.” (Id. ¶ 19).

         Lewis D. Ferebee, the Superintendent of IPS, is sued in his official capacity. (Id. ¶ 3). Count I, asserted against him, alleges that Indiana Code § 20-33-8-8(b) is unconstitutional under the Indiana Constitution. (Id. ¶¶ 23-24). Count II alleges IPS failed to train its employees and/or maintained an unlawful policy, practice, custom, or procedure permitting physical violence to be inflicted on T.M. (Id. ¶ 26). The Complaint also alleges IPS had no written policy barring its employees from using physical violence against students nor a procedure “as to how to implement or not implement physical violence” or for determining for which infractions such violence was permissible. (Id. ¶ 9). In Count III, IPS is sued in tort for the actions of its employee, Gemmecke. (Id. ¶¶ 29-30). In addition to monetary damages, Plaintiff seeks to have Indiana Code § 20-33-8-8(b) declared unconstitutional and an order enjoining enforcement of the statute. (Id., Prayer for Relief).

         II. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of claims for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, not the merits of the lawsuit. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). A court may grant a Rule 12(b)(6) motion to dismiss only if a complaint lacks “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint sufficient on its face need not give “detailed factual allegations, ” but it must provide more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Id. at 555. When resolving a motion to dismiss, the court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990).

         III. Discussion

         A. Claims Against Superintendent Ferebee

         Defendants first move to dismiss Plaintiff's official capacity claims against Superintendent Ferebee because it is redundant of her claim against IPS. “Actions against individual defendants in their official capacities are treated as suits brought against the government entity itself.” Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Thus, when, as here, the entity is also named, the official capacity claim is redundant and subject to dismissal. Burreson v. Barneveld Sch. Dist., 434 F.Supp.2d 588, 593 (W.D. Wis. 2006) (“Because Monell authorizes suits brought against local government units directly, ‘official capacity' suits against municipal decision makers are redundant when the municipality has been named as another defendant.”). Although the official capacity claims in Walker and Sheahan concerned claims brought under 42 U.S.C. § 1983 and not state constitutional claims, the result under Indiana law is the same. Harp v. Ind. Dep't of Highways, 585 N.E.2d 652, 660-61 n.5 (Ind.Ct.App. 1992) (noting that for the purpose of a declaratory judgment action, any distinction between a government entity and an officer in his official capacity is a “legal fiction”). Accordingly, Defendants' motion to dismiss Superintendent Ferebee as a defendant is GRANTED.

         B. Count I

         In Count I of her Complaint, [1] Plaintiff alleges Indiana Code § 20-33-8-8(b) violates multiple provisions of the Indiana Constitution, including: Article I, Section 11 (prohibiting unreasonable searches and seizures), Section 12 (providing for open courts and remedies by due course of law), Section 16 (requiring proportionality of punishment), and Article 8, Section 1 (establishing a system of common schools). (Compl. ¶ 24). Section 8(b) reads:

         In all matters relating to the discipline and conduct of students, ...

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