United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
matter is before the Court on Defendants' Partial Motion
to Dismiss, filed by Defendants, Town of Griffith
(incorrectly named City of Griffith), Officers Keith
Hojnicki, Chris Herrmann, Michael Gauler, Jeffrey Beck,
Robert Guiterrez, Richard Merschantz, Jacob Schoon, Jeff
Gang, Curt Burrow, and Jim Sibley, on December 12, 2017 (DE
#22). For the reasons set forth below, the Partial Motion to
Dismiss (DE #22) is GRANTED IN PART and DENIED IN PART. The
Partial Motion to Dismiss is GRANTED as to: Counts I-III as
to Defendant Officers Chris Hermann and Jim Sibley and those
claims against Defendants Hermann and Sibley are DISMISSED
WITH PREJUDICE; Count IV is DISMISSED WITH PREJUDICE as
to Defendant Officers Keith Hojnicki, Chris Herrmann, Michael
Gauler, Jeffrey Beck, Robert Guiterrez, Richard Merschantz,
Jacob Schoon, Jeff Gang, Curt Burrow, and Jim Sibley IN THEIR
INDIVIDUAL CAPACITY; and Count V is DISMISSED WITH PREJUDICE
in its entirety. The Partial Motion to Dismiss is DENIED as
to Counts I-III against Defendant Officer Robert Guiterrez
and those claims remain pending against Officer Guiterrez.
Additionally, the Partial Motion to Dismiss is DENIED AS MOOT
as to a Monell claim against the Town of Griffith,
since that claim was not pled in the complaint.
Damontel Hendricks, claims that officers of the Griffith
Police Department used excessive force in arresting him and
committed a false arrest on October 16, 2015. Hendricks has
sued the City of Griffith, and Officers Keith Hojnicki, Chris
Herrmann, Michael Gauler, Jeffrey Beck, Robert Guiterrez,
Richard Merschantz, Jacob Schoon, Jeff Gang, Curt Burrow, and
Jim Sibley “individually and as  agents.” (DE
#1 at 1.)
complaint alleges federal violations of 42 U.S.C. § 1983
for excessive force (Count I); false arrest (Count II), and
failure to intervene (Count III). The complaint also alleges
Indiana state law claims for false arrest (Count IV); and
assault and battery (Counts V and VI).
December 12, 2017, the Defendants filed the instant partial
motion to dismiss (DE #22) pursuant to Federal Rule of Civil
Procedure 12(b)(6). Defendants request: dismissal of the
federal individual capacity claims against Officer Hermann,
Officer Guiterrez and Officer Sibley in Counts I-III due to
lack of personal involvement; dismissal of Counts IV and V as
to all named officers in their individual capacities based
upon the Indiana Tort Claims Act, I.C. §34-13-3-5; and
to the extent Hendricks is seeking any Section 1983 claims
against the Town of Griffith, dismissal under the
filed a response on January 22, 2018 (DE #31). Hendricks
argues that it has adequately pled that the officers were
involved in the false arrest and use of excessive force, that
Defendants are not afforded immunity under the Indiana Tort
Claims Act for the claims of false arrest and assault and
battery, and that Plaintiff did not plead a Monell
count or a section 1983 claim against the Town of Griffith.
filed a reply on January 30, 2018 (DE #32). Consequently, the
motion is fully briefed and ready 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
alleges that on October 16, 2015, at approximately 4:00 p.m.,
he left a friend's house located on North Wood Street,
Griffith, Indiana. (Compl. at ¶ 14.) Upon arriving at
his car, Hendricks learned the battery was dead.
(Id. at ¶ 15.) While Hendricks waited for help,
Mr. Dillon entered the car and sat in the back seat, and Mr.
Richards entered the car and sat in the front passenger seat.
(Id. at ¶¶ 16-17.) Richards brought a
large clear bag of marijuana and, upon information and
belief, a bottle of Alprazolam (commonly known as Xanex) into
the car, and put the marijuana on the floor. (Id. at
¶¶ 19, 21.) Hendricks had no prior knowledge that
Richards or Dillon used marijuana or that they were planning
to enter his car while in the possession of marijuana.
(Id. at ¶ 56.)
about 4:11 p.m., two patrol cars pulled up in front and
behind of Hendricks' vehicle, with overhead lights
flashing. (Id. at ¶ 22.) Shortly thereafter,
five to six additional patrol vehicles arrived at the scene.
(Id. at ¶ 30.) ...