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Bostic v. Vasquez

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

April 13, 2018

LORENA E. BOSTIC, Plaintiff,
v.
SALVADOR VASQUEZ; CLARENCE D. MURRAY; DIANE ROSS BOSWELL; THOMAS P. STEFANIAK, JR.; SAMUEL L. CAPPAS; JAN PARSONS; and MIROSLAV RADICESKI, Defendants. LAKE COUNTY, INDIANA; LAKE COUNTY BOARD OF COMMISSIONERS; ROOSEVELT ALLEN, JR.; GERALD J. SCHEUB; and MICHAEL C. REPAY, Crossclaimants,
v.
STATE OF INDIANA, Crossclaim Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE

         This matter is before the Court on the State of Indiana's Motion for Judgment on the Pleadings on Lake County Defendants' Cross-Claim [DE 93], filed by Crossclaim Defendant State of Indiana on January 22, 2018. Crossclaimants Lake County, Indiana, Lake County Board of Commissioners, Roosevelt Allen, Jr., Gerald J. Scheub, and Michael C. Repay (collectively, the “Lake County Defendants”) filed a response on February 23, 2018, and the State of Indiana filed a reply on March 9, 2018.

         On November 25, 2015, Plaintiff Lorena E. Bostic filed a Complaint against the State of Indiana; Lake County, Indiana; Lake County, Indiana, Board of Commissioners; Roosevelt Allen; Gerald J. Scheub; Michael C. Repay; Salvador Vasquez; Clarence D. Murray; Diane Ross Boswell; Thomas P. Stefaniak, Jr.; Samuel L. Cappas; Jan Parsons; and Miroslav Radiceski. On December 1, 2015, Plaintiff filed an Amended Complaint against the same Defendants.

         This case relates to incidents that allegedly occurred while Plaintiff was a probationer in Lake County, Indiana. On March 26, 2013, Defendant Miroslav Radiceski became Plaintiff's Probation Officer. Plaintiff alleges that during the course of his time as her Lake County Probation Officer, Radiceski engaged in an inappropriate, harmful, and illegal course of conduct. Specifically, Plaintiff alleges that Radiceski subjected her to “repeated acts of non-consensual, forcible, sexual and non-sexual behavior and deprivations of her liberty, ” which culminated in an incident on November 26, 2013. (ECF 81, ¶¶ 19, 22). Plaintiff alleges that, in retaliation for her resisting his misconduct, on November 26, 2013, Radiceski filed a malicious and meritless Petition to Revoke her probation. At the times relevant to Plaintiff's allegations, Jan Parsons was Director and Chief Probation Officer of the felony Probation Department of the Superior Court of Lake County, Criminal Division.

         On February 8, 2016, Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas P. Stefaniak, Jr., and Samuel L. Cappas (collectively the “Superior Court Judge Defendants”) along with the State of Indiana filed a Motion to Dismiss. The same date, Defendant Miroslav Radiceski filed a Motion to Dismiss and an Answer, and Defendant Jan Parsons separately filed a Motion to Dismiss.

         Also on February 8, 2016, Defendants Lake County, Indiana; Lake County, Indiana, Board of Commissioners; Roosevelt Allen; Gerald J. Scheub; and Michael C. Repay (collectively the “Lake County Defendants”) filed an Answer as well as the Crossclaim at issue on the instant motion against Defendant State of Indiana.

         Count I of the Crossclaim alleges that the State of Indiana is liable to the Lake County Defendants for all or part of the claims and damages asserted against the Lake County Defendants by Plaintiff in her negligence claim in the Amended Complaint. Count II of the Crossclaim alleges that the State of Indiana has a duty to defend state employees in civil suits and, thus, must pay the defense of Defendants Parsons and Radiceski. The Lake County Defendants allege that they have been and are incurring attorney fees, expenses, and other costs related to the defense of Defendants Parsons and Radiceski. In Count II, the Lake County Defendants seek both a declaratory judgment as well as a judgment for damages.

         On February 16, 2016, the State of Indiana filed an Answer to the Crossclaim.

         On September 27, 2016, then-presiding Judge James T. Moody issued an Opinion and Order granting in part and denying in part the Motions to Dismiss, effectively dismissing Defendant State of Indiana. On November 10, 2016, Jan Parsons filed an Answer to the Amended Complaint. On July12, 2017, the Superior Court Judge Defendants filed a Motion for Judgment on the Pleadings, which was fully briefed on September 19, 2017.

         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 Judge has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

         On October 2, 2017, the Court granted the Superior Court Judge Defendants' Motion for Judgment on the Pleadings, dismissing without prejudice the remaining claims against the Superior Court Judge Defendants.

         On November 8, 2017, Plaintiff filed a Motion for Leave to File Second Amended Complaint. On December 8, 2017, the Court granted in part and denied in part the motion, ordering Plaintiff to file the Second Amended Complaint with specific modifications to reflect the remaining parties and claims based on the prior rulings on dispositive motions.

         On December 15, 2017, Plaintiff filed the Second Amended Complaint against the Superior Court Judge Defendants, Jan Parsons, and Miroslav Radiceski only. The Second Amended Complaint contains only two counts-for constitutional violations under 42 U.S.C. § 1983 and for willful and wanton misconduct under Indiana state law. Plaintiff dropped the state law negligence claim. ...


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