Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walton v. Merrillville Police Department

United States District Court, N.D. Indiana, Hammond Division

November 28, 2017

ALMA JEAN WALTON, Plaintiff,
v.
MERRILLVILLE POLICE DEPARTMENT and JOSEPH PETRUCH in his official capacity as Chief of Police, Defendants.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE UNITED STATES DISTRICT COURT

         This 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.

         BACKGROUND

         This 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 V).

         Defendants 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.

         DISCUSSION

         Federal 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).

         In 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 555).

         Facts

         Plaintiff 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.)

         That 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.)

         On 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.)

         Not 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.)

         In 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.)

         She 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.