United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on the Motion to Dismiss, filed by
Defendant, Merrillville Police Department and Chief Joseph
Petruch, on August 24, 2017 (DE #17). For the reasons set
forth below, the motion (DE #17) is GRANTED.
Plaintiff's federal claims (in Count I) are
DISMISSED WITH PREJUDICE, and her state
claims (Counts II-V) are REMANDED back to
the Lake Circuit Court for further proceedings.
case was removed to this Court on June 23, 2017. Plaintiff,
Alma Jean Walton, alleges that she was raped the night of
November 10, 2014, and that the Merrillville Police
Department and Joseph Petruch, in his official capacity as
Chief of Police, failed to properly investigate her case. In
her amended complaint, she states a claim pursuant to 42
U.S.C. § 1983 for violation of her constitutional rights
to due process and equal protection (Count I), as well as
state constitutional violations (Count II), negligence (Count
III), “privacy” (Count IV), and defamation (Count
move to dismiss all claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiff filed a response on September
15, 2017 (DE #24), and Defendants filed a reply on September
22, 2017 (DE #25). Consequently, this motion is fully briefed
and ripe for adjudication.
Rule of Civil Procedure 12(b)(6) allows a complaint to be
dismissed if it fails to “state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Allegations other than fraud and mistake are governed by the
pleading standard outlined in Federal Rule of Civil Procedure
8(a), which requires a “short and plain
statement” that the pleader is entitled to relief.
Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011).
order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face'.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded
facts must be accepted as true, and all reasonable inferences
from those facts must be resolved in the plaintiff's
favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th
Cir. 2008). However, pleadings consisting of no more than
mere conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 678-79. This includes legal
conclusions couched as factual allegations, as well as
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
is a 59-year old African American female, who alleges she was
forcibly raped in her home in Merrillville, Indiana, the
night of November 10, 2014. (Am. Compl. ¶¶ 5-6.)
She alleges the attack occurred while she was sleeping, and
she was “unable to move and felt powerless in stopping
her attacker.” (Id. ¶ 7.) According to
Plaintiff, when she woke the next morning, she was physically
injured, was experiencing pain and seepage, bruising, and in
extreme pain in her breasts. (Id. ¶ 8.) She
went to South Suburban Hospital in Country Club Hills,
Illinois, and had an exam and rape kit performed.
(Id. ¶ 9.)
same morning, Plaintiff called the Merrillville Police
Department and reported that she had been raped and attacked,
and although she was told officers would be there within 2-3
days, she alleges the police officers did not come to her
home to make a report. (Id. ¶ 11.)
approximately November 24, 2014, Plaintiff again called the
Merrillville Police Department to follow up, but she alleges
they still had not investigated the allegations.
(Id. ¶ 12.) Plaintiff claims she continued to
live in fear that the attacker would return. (Id.
¶ 15.) On December 5, 2014, Plaintiff called the Police
Department “to report that she believed one of the
other tenants on the property was her attacker and asked that
they investigate her allegations and that they test the rape
kit.” (Id. ¶ 16.)
until after Plaintiff went to the Merrillville Police
Department's station to ask about the status of the
investigation on December 9, 2014, did an officer get
dispatched to her residence to investigate the incident that
same day. (Id. ¶ 17.) That police report is
attached to the amended complaint, and indicates that
Plaintiff believes the same person “had been entering
her apartment while the security system is armed and
disturbing things in her apartment. . . [she] also reported
that she believes that same individual followed her to the
Best Western Hotel in Oak Forest IL and broke off the sun
visor inside her vehicle.” The Officer found
“[t]here was no forced entry to Walton's home of
[sic] vehicle.” (DE #7 Ex. A.)
January 2015, Plaintiff was advised by the South Suburban
Hospital that the Police Department was in possession of the
rape kit gathered in October 2014, but it would take six
months to process. (Am. Compl. ¶¶ 18-19.)
sent a letter to the Police Department on September 7, 2015,
inquiring about the rape kit. (Id. ¶ 20.) On
September 24, 2015, Joseph Petruch, Chief of Police, sent a
letter in return (attached to the amended complaint as
Exhibit C), stating:
Upon receiving the incident report it was processed by the
Department through standard daily operating procedure. The
Commander of Detective's reviewed the written report and
assigned it to Detective Fields.
Detective Fields followed his investigating training
concerning this incident. During this investigation, with
review of original claims and the Sane's report from
Advocate South Suburban Hospital, it was confirmed there
showed no signed or evidence to substantiate the claim.
The investigation by Detective Fields continued with him
contacting your daughter, and advising her of the
hospital's concerns for your mental health. With the
investigation complete and your daughter advised, he closed
his report investigation.
This would conclude any further investigation with Detective
Field's recommendation of no evidentiary ...