United States District Court, S.D. Indiana, Indianapolis Division
Charles W. Cooper, Plaintiff,
City of Indianapolis and Officer Gregory Davis, Defendants.
JANE MAGNUS-STINSON, CHIEF JUDGE
2017, Plaintiff Charles Cooper initiated this lawsuit against
the City of Indianapolis (the “City”)
and Indianapolis Metropolitan Police Department
(“IMPD”) Officer Gregory Davis.
[Filing No. 1.] Mr. Cooper alleges that he was
asleep on his grandmother's porch the evening of July 28,
2015 when Officer Davis approached him and
“unleashed” a K9, which then attacked and bit Mr.
Cooper. Mr. Cooper asserts various state law claims against
Defendants, and claims under 42 U.S.C. § 1983 for Fourth
Amendment and Fourteenth Amendment violations by using
excessive force. Presently pending before the Court, and ripe
for the Court's decision, is the City's Motion to
Dismiss. [Filing No. 13.]
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim that does not state a right to relief. The
Federal Rules of Civil Procedure require that a complaint
provide the defendant with “fair notice of what
the…claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007)). In reviewing the sufficiency of a
complaint, the Court must accept all well-pled facts as true
and draw all permissible inferences in favor of the
plaintiff. See Active Disposal Inc. v. City of
Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule
12(b)(6) motion to dismiss asks whether the complaint
“contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
The Court will not accept legal conclusions or conclusory
allegations as sufficient to state a claim for relief.
See McCauley v. City of Chicago, 671 F.3d
611, 617 (7th Cir. 2011). Factual allegations must plausibly
state an entitlement to relief “to a degree that rises
above the speculative level.” Munson v. Gaetz,
673 F.3d 630, 633 (7th Cir. 2012). This plausibility
determination is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.
following are the factual allegations in the Amended
Complaint, which the Court must accept as true at this time:
Cooper alleges that on the evening of July 28, 2015, Officer
Davis and other IMPD officers were investigating a reported
robbery. [Filing No. 1 at 2.] Officer Davis had a K9
unit with him. [Filing No. 1 at 2.] At the same
time, Mr. Cooper was sleeping on the porch of his
grandmother's house. [Filing No. 1 at 2.] Mr.
Cooper alleges that Officer Davis approached him and
“unleashed his K9 upon” Mr. Cooper. [Filing
No. 1 at 2.] Mr. Cooper alleges that the K9 attacked and
bit him, and that he was “doing nothing which
necessitated or justified the use of police force against
him.” [Filing No. 1 at 2.]
Cooper alleges that he sustained serious injuries as a result
of the attack. [Filing No. 1 at 3.] He asserts
claims against Defendants under 42 U.S.C. § 1983 for use
of excessive force in violation of his Fourth and Fourteenth
Amendment rights. [Filing No. 1 at 1-3.] As to the
City, Mr. Cooper alleges that “[a]t all times, the
employees, agents, and representatives of Defendant, City of
Indianapolis, and Officer Gregory Davis, acted pursuant to
official policy, ” and that the City “had an
official policy, procedure, or protocol authorizing its
officers to use excessive force in situations such as
described in this Complaint.” [Filing No. 1 at
3.] Mr. Cooper also asserts state law claims against
Officer Davis for negligence, assault, battery, and negligent
and intentional infliction of emotional distress, and against
the City for negligence and under the doctrine of respondeat
superior. [Filing No. 1 at 4.]
City has moved to dismiss Mr. Cooper's § 1983 claim,
and that motion is now ripe for the Court's decision.
[Filing No. 13.]
Court notes at the outset that Mr. Cooper did not respond to
the City's Motion to Dismiss. In the absence of a
response by Mr. Cooper, the Court is authorized to summarily
rule on the City's Motion to Dismiss pursuant to Local
Rule 7-1(c)(4) (“The court may summarily rule on a
motion if an opposing party does not file a response within
the deadline”). However, because the law prefers
dispositions on the merits, seeCracc ...