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Bostic v. State

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

December 8, 2017

LORENA E. BOSTIC, Plaintiff,
v.
STATE OF INDIANA; LAKE COUNTY, INDIANA; LAKE COUNTY, INDIANA, BOARD OF COMMISSIONERS; ROOSEVELT ALLEN, JR.; GERALD J. SCHEUB; MICHAEL C. REPAY; JAN PARSONS; and MIROSLAV RADICESKI, Defendants. LAKE COUNTY, INDIANA; LAKE COUNTY, INDIANA, BOARD OF COMMISSIONERS; ROOSEVELT ALLEN, JR.; GERALD J. SCHEUB; and MICHAEL C. REPAY, Cross Claimants,
v.
STATE OF INDIANA, Cross Claim Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on a Motion for Leave to File Second Amended Complaint [DE 76], filed by Plaintiff Lorena E. Bostic on November 8, 2017. Defendant Jan Parsons filed a response in opposition on November 14, 2017, and Plaintiff filed a reply on November 21, 2017.

         BACKGROUND

         On November 25, 2015, Plaintiff filed a Complaint in this case, and on December 1, 2015, she filed an Amended Complaint. On February 8, 2016, Defendants State of Indiana and the five Superior Court Judge Defendants (Defendants Diane Ross Boswell, Samuel L. Cappas, Clarence D. Murray, Thomas P. Stefaniak, Jr., and Salvadore Vasquez); Defendant Jan Parsons; and Defendant Miroslav Radiceski each filed a Motion to Dismiss for failure to state a claim. The Motions to Dismiss were fully briefed.

         On February 8, 2016, Defendant Radiceski filed an Answer. On February 8, 2016, Defendants Lake County, Indiana; Lake County, Indiana, Board of Commissioners; Michael C. Repay; Roosevelt Allen, Jr., and Gerald J. Scheub (collectively, the “Lake County Defendants”) filed an Answer and a Cross Claim against the State of Indiana. On February 16, 2016, Defendant State of Indiana filed an Answer to the Lake County Defendants' Cross Claim.

         On September 27, 2016, Judge James T. Moody, the presiding judge, issued an Opinion and Order, granting in part and denying in part the Motions to Dismiss, making the following rulings.

         Count I of the Amended Complaint was brought under § 1983 for violations of Plaintiff's federal Constitutional rights against only the Superior Court Judge Defendants (Judges Vasquez, Murray, Boswell, Stefaniak, and Cappas) in their individual capacities, Defendant Jan Parsons individually, and Defendant Miroslav Radiceski individually. The State of Indiana and the Superior Court Judges moved to dismiss Count I. In her briefing on the Motion to Dismiss, Plaintiff stated that she was not pursuing Count I against the judges in their official capacities or against the State of Indiana. The Court denied the Motion to Dismiss Count I against the judges in their individual capacities and recognized that Count I was not brought against the State of Indiana.

         Defendant Parsons also moved to dismiss Count I, arguing that she is entitled to quasi-judicial immunity on the claims in her individual capacity because she was acting within the scope of her employment to carry out the terms of the Superior Court's order placing Plaintiff on probation. In the briefing, Plaintiff narrowed her claim against Parsons in Count I to only liability in her individual capacity, namely her retention of Radiceski and her failure to train and supervise Radiceski adequately. (ECF 41, p. 5). The Court granted in part and denied in part Defendant Parsons' Motion to Dismiss as to Count I, ruling that Count I remained pending against Parsons in her individual capacity for her retention of Radiceski and her failure to train and supervise Radiceski adequately.

         Radiceski did not move for dismissal of Count I. As Count I was not brought against Defendants State of Indiana or the Lake County Defendants, Count I remained pending against the five Superior Court Judge Defendants in their individual capacities, Defendant Parsons in her individual capacity for her retention of Radiceski and her failure to train and supervise Radiceski adequately, and Defendant Radiceski in his individual capacity.

         Count II of the Amended Complaint, titled “Negligence, ” was brought under Indiana state law against all Defendants. The Court dismissed Count II against Defendant State of Indiana, the five Superior Court Judge Defendants, Defendant Parsons, and against Defendant Radiceski in his official capacity, leaving Count II pending against Radiceski in his individual capacity. Count II also remains pending against the Lake County Defendants, who did not file a motion to dismiss.

         Count III of the Amended Complaint, titled “Willful and Wanton Misconduct, ” was brought under Indiana state law against only Defendant Radiceski and Defendant Parsons in both their individual and official capacities. Defendant Parsons moved for dismissal on the basis that she is entitled to immunity from suit under the Indiana Tort Claims Act (ITCA), Indiana Code § 34-13-3-5, because she was acting within the scope of her employment. (ECF 32, p. 12). Defendant Parsons also argued that Plaintiff was on probation and, therefore, is barred from suing an employee who was acting within the scope of the employee's employment resulting in personal injuries, citing Indiana Code § 34-13-3-3(17). (ECF 32, pp. 12-13). Plaintiff responded to both arguments, asserting that Parsons does not have immunity. (ECF 41, pp. 6-7). The Court dismissed Count III against Defendant Parsons based on immunity under the Indiana Tort Claims Act, citing Indiana Code § 34-13-3-3(17). (ECF 49, p. 4). The Court also dismissed Count III as to Defendant Radiceski in his official capacity. Thus, Count III remains pending only against Defendant Radiceski in his individual capacity.

         On November 10, 2016, Defendant Parsons filed an Answer to the Amended Complaint.

         On July 12, 2017, the five Superior Court Judge Defendants (Vasquez, Murray, Boswell, Stefaniak, and Cappas) filed a Motion for Judgment on the Pleadings.

         On August 31, 2017, the parties orally agreed on the record to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, the undersigned Magistrate ...


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