United States District Court, N.D. Indiana, LaFayette Division
JAMES K. SCHENKE, Plaintiff,
MITCH DANIELS, et al., Defendants.
OPINION AND ORDER
P. Rodovich, United States Magistrate Judge
matter is before the court on the Motion to Dismiss
Plaintiff's Amended Complaint [DE 70] filed by the
defendant, John Dennis, on November 6, 2016. For the
following reasons, the motion is GRANTED.
October 18, 2016, the plaintiff, James Schenke, filed an
Amended Complaint [DE 64] against defendants, Julie Griffin,
Trent Klingerman, Julie Rosa, Shelley Triol, Brian Zink,
Mitch Daniels (Purdue defendants), John Dennis, and Randy
Truitt. The amended complaint has alleged that the defendant,
John Dennis, deprived and/or conspired to deprive Schenke of
his rights secured under the Constitution and laws of the
United States under the color of state law pursuant to 42
U.S.C. § 1983.
was employed as a Broadcast Media Liaison by Purdue
University's Office of News and Information. During the
Spring and Summer of 2013, the City of West Lafayette was
attempting to annex certain property along the U.S. 231
corridor. The subdivision Wake Robin Estates, where Schenke
resided and was a member of the Homeowners Association, would
have been annexed under the plan. Schenke spoke and wrote
against the annexation and was involved in protests
concerning excessive noise in Wake Robin after the opening of
the U.S. 231 bypass.
factual allegations contained in the amended complaint have
alleged that on September 11, 2013, Schenke learned that
Dennis had called and complained to Julie Griffith,
Purdue's Vice President for External Affairs, regarding
an unpublished letter that Schenke had written to the Editor
of the Purdue Exponent. Further, the amended
complaint alleged that Dennis conspired with and persuaded
the Purdue defendants to prohibit Schenke from speaking
publically against Dennis's proposed annexation plan, and
in favor of noise abatement efforts opposed by Dennis, by
requiring him to obtain prior approval for any such actions,
and by retaliating against him when he exercised, or
attempted to exercise, his right to freedom of speech, as
protected by the First and Fourteenth Amendments. The amended
complaint has indicated that at times relevant to this action
Dennis was the duly-elected Mayor of the City of West
has moved to dismiss the amended complaint. Schenke filed a
response in opposition on December 6, 2016, and Truitt filed
a reply in support on December 12, 2016. On May 22, 2017,
this case was reassigned to Magistrate Judge Andrew P.
Rodovich upon the parties' consent under 28 U.S.C. §
Rule of Civil Procedure 12(b)(6) allows for a
complaint to be dismissed if it fails to “state a claim
upon which relief can be granted.” Allegations other
than those of fraud and mistake are governed by the pleading
standard outlined in Federal Rule of Civil Procedure 8(a)(2),
which requires a “short and plain statement” to
show that a pleader is entitled to relief. See Cincinnati
Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir.
2013). The Supreme Court clarified its interpretation of the
Rule 8(a)(2) pleading standard in a decision issued in May
2009. While Rule 8(a)(2) does not require the pleading of
detailed allegations, it nevertheless demands something more
“than an un-adorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In order
to survive a Rule 12(b)(6) motion, a complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Cincinnati Life
Ins., 722 F.3d at 946 (“The primary purpose of
[Fed.R.Civ.P. 8 and 10(b)] is to give defendants fair notice
of the claims against them and the grounds supporting the
claims.”) (quoting Stanard v. Nygren, 658 F.3d
792, 797 (7th Cir. 2011)); Peele v. Clifford Burch,
722 F.3d 956, 959 (7th Cir. 2013) (explaining that one
sentence of facts combined with boilerplate language did not
satisfy the requirements of Rule 8); Joren v.
Napolitano, 633 F.3d. 1144, 1146 (7th Cir. 2011). This
pleading standard applies to all civil matters.
Iqbal, 556 U.S. at 684.
decision in Iqbal discussed two principles that
underscored the Rule 8(a)(2) pleading standard announced by
Twombly. See Twombly, 550 U.S. at 555
(discussing Rule 8(a)(2)'s requirement that factual
allegations in a complaint must “raise a right to
relief above the speculative level”). First, a court
must accept as true only factual allegations pled in
a complaint-“[t]hreadbare recitals of the elements of a
cause of action” that amount to “legal
conclusions” are insufficient. Iqbal, 556 U.S.
at 678. Next, only complaints that state
“plausible” claims for relief will survive a
motion to dismiss. Iqbal, 556 U.S. at 678. If the
pleaded facts do not permit the inference of more than a
“mere possibility of misconduct, ” then the
complaint has not met the pleading standard outlined in Rule
8(a)(2). Iqbal, 556 U.S. at 678-79; see Brown v.
JP Morgan Chase Bank, 2009 WL 1761101, at *1 (7th Cir.
June 23, 2009) (defining “facially plausible”
claim as a set of facts that allows for a reasonable
inference of liability). The Supreme Court has suggested a
two-step process for a court to follow when considering a
motion to dismiss. First, any “well-pleaded factual
allegations” should be assumed to be true by the court.
Next, these allegations can be reviewed to determine if they
“plausibly” give rise to a claim that would
entitle the complainant to relief. Iqbal, 556 U.S.
at 678-79; Bonte v. U.S. Bank, N.A., 624 F.3d 461,
465 (7th Cir. 2010). Reasonable inferences from well-pled
facts must be construed in favor of the plaintiff. Murphy
v. Walker, 51 F.3d 714, 717 (7th Cir. 1995); Maxie
v. Wal-Mart Store, 2009 WL 1766686, at *2 (N.D. Ind.
June 19, 2009) (same); Banks v. Montgomery, 2009 WL
1657465, at *1 (N.D. Ind. June 11, 2009) (same).
complaint that lacks organization and coherence so that it is
too confusing to understand the factual basis of the wrongful
conduct also is subject to dismissal. Cincinnati Life
Ins., 722 F.3d at 946. The court assesses this by
considering whether it can make out the essence of the
claims. Cincinnati Life Ins., 722 F.3d at 946. A
complaint is not unintelligible simply because it contains
repetitive and irrelevant matter. Cincinnati Life
Ins., 722 F.3d at 946. “Rather, we have found
complaints wanting when they present a ‘vague,
confusing, and conclusory articulation of the factual and
legal basis for the claim and [take] a general “kitchen
sink” approach to pleading the case.' . . .
[D]ismissal is the appropriate remedy for district courts
presented with ‘a bucket of mud.'”
Cincinnati Life Ins., 722 F.3d at 946-47 (quoting
Stanard, 658 F.3d at 798).
42 U.S.C. § 1983 provides a “federal cause of
action for the deprivation, under color of state law, of a
citizen's rights, privileges, or immunities secured by
the Constitution and laws of the United States....”
Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct.
2068, 2082, 129 L.Ed.2d 93 (1994). Section 1983 does not
itself create substantive rights, but “it acts as an
instrument for vindicating federal rights conferred
elsewhere.” Spiegel v. Rabinovitz, 121 F.3d
251, 254 (7th Cir. 1997). In order to state a claim under
§ 1983, a plaintiff must sufficiently allege that (1) he
held a constitutionally protected right, (2) he was deprived
of this right in violation of the Constitution, (3) the
defendant intentionally caused this deprivation, and (4) the
defendant acted under color of state law. McNabola v.
Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.
establish a prima facie case for a First Amendment
retaliation claim, Schenke must establish that (1) he engaged
in activity protected by the First Amendment, (2) he suffered
a deprivation that would likely deter First Amendment
activity in the future, and (3) the First Amendment activity
was “at least a motivating factor” in
Dennis's decision to take the retaliatory action.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
does not contest that Schenke was engaged in activity
protected by the First Amendment. However, he has argued that
his alleged actions did not deter Schenke's First
Amendment activity. Dennis is correct that despite the
restrictions imposed on Schenke, he continued to speak
against the proposed annexation. However, the legal standard
is objective. All Schenke must show is that the retaliatory
activities would “deter a person of ordinary
firmness” from exercising First Amendment activity in
the future. Bridges v. Gilbert,557 F.3d 541, 546
(7th Cir. 2009). Schenke has indicated that he was
threatened, muzzled, interrogated, reprimanded, denied a