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Cooper v. City of Indianapolis

United States District Court, S.D. Indiana, Indianapolis Division

November 29, 2017

Charles W. Cooper, Plaintiff,
v.
City of Indianapolis and Officer Gregory Davis, Defendants.

          ORDER

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE

         In July 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.]

         I.

         Standard of Review

         Under 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.

         II.

         Background

         The following are the factual allegations in the Amended Complaint, which the Court must accept as true at this time:

         Mr. 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.]

         Mr. 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.]

         The City has moved to dismiss Mr. Cooper's § 1983 claim, and that motion is now ripe for the Court's decision. [Filing No. 13.]

         III.

         Discussion

         The 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 ...


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