United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION TO DISMISS
RICHARDX. YOUNG, JUDGE
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.
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).
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).
Standard of Review
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).
Claims Against Superintendent Ferebee
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.
Count I of her Complaint,  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:
matters relating to the discipline and conduct of students,