United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY, UNITED STATES DISTRICT COURT JUDGE
matter is before the court on a motion to dismiss (DE # 6)
and a motion for entry of dismissal (DE # 9) originally filed
by John Buncich (“Buncich”), the former Sheriff
of Lake County, Indiana, and a former defendant in this
matter. Also before the court are plaintiff's objections
(DE # 29) to Magistrate Judge John E. Martin's opinion
and order dated December 1, 2017 (DE # 28). For the following
reasons, the court grants the motion to dismiss (DE # 6),
denies the motion for entry of dismissal as moot (DE # 9),
and overrules plaintiff's objections (DE # 29).
October 2014, plaintiff Muhammed Khan was arrested and
transported to Lake County Jail in Crown Point, Indiana. (DE
# 4 at 2.) Plaintiff alleges he was locked in a cell with
another man, Andrew Decrescenzo, who attacked and attempted
to rape him. (Id. at 3.) After this incident,
plaintiff filed a state court complaint against Buncich in
his official capacity as Sheriff and against correctional
officers Sam Orlich, D. Hill, Paul Rosa, J. Norcutt, W.
Eaton, Charles Hubbell, and Almita Johnson. (Id. at
1-2.) Plaintiff's second amended complaint was filed in
state court on August 15, 2017 (DE # 4), and the case was
removed to this court on August 31, 2017 (DE # 1).
September 13, 2017, Buncich filed a motion to dismiss for
failure to state a claim against him, pursuant to Federal
Rule of Civil Procedure 12(b)(6). (DE # 6.) When plaintiff
did not respond within 14 days, Buncich filed a further
motion for entry of dismissal. (DE # 9.) Although Buncich
originally filed these motions, per the order dated October
26, 2017, Oscar Martinez (“Martinez”), the
current Sheriff, has been substituted into the case in place
of Buncich. (DE # 21.)
than respond to the motion to dismiss, plaintiff filed a
third amended complaint which contained a new
“Monell” claim against Buncich. (DE #
10.) However, because this was not plaintiff's first
amended complaint, he could not file the new complaint
without the court's leave or defendants' consent.
(See DE # 25.) Since he had neither, the court
struck the third amended complaint. (Id.)
November 5, 2017, plaintiff moved for leave to file his third
amended complaint. (DE # 26.) This time, Martinez opposed the
motion. (DE # 27.) On December 1, 2017, Magistrate Judge John
E. Martin issued an opinion and order denying plaintiff's
motion for leave to amend on the grounds that amendment would
be futile. (DE # 28.) Plaintiff has since objected to
Magistrate Judge Martin's order, under Federal Rule of
Civil Procedure 72(a). (DE # 29.) Martinez responded to the
motion and it is now ripe for review.
the court is a motion to dismiss plaintiff's claims under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief may be granted. A judge reviewing a
complaint under a Rule 12(b)(6) standard must construe it in
the light most favorable to the non-moving party, accept
well-pleaded facts as true, and draw all inferences in the
non-movant's favor. Erickson v. Pardus, 551 U.S.
89, 93 (2007); Reger Dev., LLC v. Nat'l City
Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the
liberal notice-pleading requirements of the Federal Rules of
Civil Procedure, the complaint need only contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
To satisfy Rule 8(a), “the statement need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'”
Erickson, 551 U.S. at 93 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
the federal pleading standard is quite forgiving, . . . the
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ray v. City of Chicago, 629 F.3d 660,
662-63 (7th Cir. 2011); Twombly, 550 U.S. at 555,
570. A plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To
meet this standard, a complaint does not need detailed
factual allegations, but it must go beyond providing
“labels and conclusions” and “be enough to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citing Sanjuan v. Am.
Bd. of Psychiatry & Neurology, 40 F.3d 247, 251 (7th
Cir. 1994) among other authorities).
plaintiff has filed objections pursuant to Federal Rule of
Civil Procedure 72(a). Rule 72(a) provides that a Magistrate
Judge to whom a non-dispositive, pre-trial matter has been
referred shall “conduct the required proceedings and,
when appropriate, issue a written order stating the
decision.” In accordance with 28 U.S.C. §
636(b)(1)(A) and Rule 72(a) of the Federal Rules of Civil
Procedure, parties are given fourteen (14) days after service
of the Magistrate's opinion and order to file any written
objections. “The district judge in the case must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or contrary to
law.” Fed.R.Civ.P. 72(a).
court will first address the pending motion to dismiss
originally filed by Buncich. (DE # 6.) In the motion, Buncich
moved to dismiss all claims against him that appear in
plaintiff's second amended complaint. The second amended
complaint contains only one claim (Count I) which alleges a
Fourteenth Amendment violation under 42 U.S.C. § 1983.
However, there are no allegations in the complaint that
Buncich was personally involved in the alleged Fourteenth
Amendment violation. (See DE # 6.) In fact, the
second amended complaint specifically lists Buncich as a
defendant only in his official capacity.
claims asserted against Sheriff Buncich in his official
capacity are equivalent to claims against the Lake County
Sheriff's Department itself. See Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). A local government
or municipality, such as the Lake County Sheriff's
Department, can be subject to suit under § 1983.
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690 (1978). However, in order to state this type of
“Monell” claim against a municipality,
the complaint must allege that “an official policy or
custom” of the municipality “not only caused the
violation, but was the moving force behind it.”
Estate of Sims ex rel. Sims v. County of Bureau, 506
F.3d 509, 514 (7th Cir. 2007). “The caseslaw has
identified three instances in which a municipality can be
said to have violated the civil rights of a person because of
its policy: (1) an express policy, when enforced, causes a
constitutional deprivation; (2) a widespread practice that,
although not authorized by written law or express municipal
policy, is so permanent and well settled as to ...