United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO DISMISS
J. DINSMORE UNITED STATES JUDGE
matter is before the Court on Defendants' Motion to
Dismiss Indiana State Tort Claims in Plaintiffs' Second
Amended Complaint. [Dkt. 32.] For the reasons
set forth below, the Court DENIES
following facts are not necessarily objectively true. But as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the Second Amended
Complaint and draws all reasonable inferences in favor of the
Plaintiffs as the non-moving parties. See
Bielanski v. Cty. of Kane, 550 F.3d 632, 633 (7th
divide their factual allegations into two sections:
“Initial Search ~ Allegations Within the Scope of
Employment” and “Subsequent Actions ~ Allegations
Outside the Scope of Employment.” [Dkt. 25 at
2, 4.] Plaintiffs allege in the “Initial
Search” section that Defendant Officers Smith,
McWhorter, and Bellows conducted an illegal search of a white
Cadillac owned by Plaintiffs Hardiman and Houston during an
investigation on August 27, 2017. [Dkt. 25 at 2-
4.] Plaintiffs allege that during the search the
Defendant officers “broke open the glove box”
and, as a result, the “glove box no longer shuts
properly.” [Dkt. 25 at 3.] According to
Plaintiffs, Defendant officers did not have a warrant to
search the vehicle, and no warrant exception applied to the
state in the “Subsequent Actions” section that
Plaintiff Hardiman had a verbal disagreement with the three
Defendant officers about the alleged illegal search of his
car. [Dkt. 25 at 4.] In response, the officers had
the vehicle towed. Id. Plaintiffs allege that
Defendant officers did not have a warrant to tow the vehicle,
no warrant exception applied to the tow, and there was no
lawful reason to tow the vehicle. [Dkt. 25 at 5.]
When Plaintiffs recovered their vehicle from the towing
company, they discovered that the vehicle's parking brake
had been engaged in a way that required repair. Id.
Plaintiffs suffered financial harm as a result of the parking
brake repair, for which they seek to hold Defendants liable
under the doctrine of res ipsa loquitor. [Dkt.
25 at 5-6.] Plaintiffs suffered additional financial
harm due to the towing and storage fees resulting from the
tow. [Dkt. 25 at 5.]
suit originated in Marion County Superior Court, and
Defendant Chief of Indianapolis Metropolitan Police
Department (“IMPD Chief”) Bryan Roach removed the
case to federal court. [Dkt. 1 at 1.] On March 12,
2018, Defendant IMPD Chief responded to Plaintiffs'
Complaint for Damages [Dkt. 1-2 at 13] by filing an
Answer [Dkt. 11] and a Motion to Dismiss [Dkt.
12]. On March 18, 2018, Plaintiffs filed a Motion to
Amend Complaint in order to “cure alleged potential
defects in the pleadings” as well as to identify
Officer Nickolas Smith as one of the “John Does”
named in the initial complaint. [Dkt. 15.] Pursuant
to Fed.R.Civ.P. 15(a)(1)(B), Plaintiffs may amend the
complaint once as a matter of course within 21 days after
service of a responsive pleading or 21 days after service of
a motion under Rule 12(b). In light of the filing of the
Amended Complaint, Defendant's Motion to Dismiss [Dkt.
12] was denied as moot.
again moved to amend their complaint in order to identify the
two remaining “John Does.” [Dkt. 22.]
The Court granted Plaintiffs' Second Motion to Amend
Complaint. [Dkt. 24.] Plaintiffs named four
defendants in their Second Amended Complaint: IMPD Chief
Bryan Roach, Officer Nickolas Smith, Officer Michael
McWhorter, and Officer Paul Bellows. [Dkt. 25 at 1.]
The complaint alleged constitutional claims pursuant to 42
U.S.C. § 1983, state statutory claims pursuant to Ind.
Code § 34-24-3-1, and state common law claims.
Id. After filing an answer to Plaintiffs' Second
Amended Complaint [Dkt. 31], Defendants filed a
Motion to Dismiss for Failure to State a Claim under Rule
12(b)(6), seeking dismissal of all of Plaintiffs' state
tort claims based on Defendants' affirmative defense of
law enforcement immunity. [Dkt. 32.]
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the factual matter alleged in the complaint.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). A plaintiff must do more than simply recite the
elements of a claim and provide conclusory statements in
support. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint must provide enough factual information
to state a claim for relief that is plausible on its face and
“raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint is facially plausible
“when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. On a motion to dismiss, the court accepts all facts
in the complaint as true, views them in the light most
favorable to the plaintiff, and draws all reasonable
inferences in the plaintiff's favor. Bonte v. U.S.
Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010).
law enforcement immunity is an affirmative defense, it is not
properly raised in a Rule 12(b)(6) motion to dismiss, because
there is no requirement for a plaintiff to plead defenses to
anticipated affirmative defenses in the complaint.
See Hyson USA, Inc. v. Hyson 2U, Ltd., 821
F.3d 935, 939 (7th Cir. 2016) (“[A] plaintiff
ordinarily need not anticipate and attempt to plead around
affirmative defenses.”). Rather, “the proper
procedure is to raise the defense and then move for judgment
on the pleadings under Rule 12(c) of the Federal Rules of
Civil Procedure.” Walczak v. Chi. Bd. of
Educ., 739 F.3d 1013, 1016 n.2 (7th Cir. 2014).
converted Rule 12(c) motion is evaluated under the same
standard as a Rule 12(b)(6) motion, and therefore
“courts grant a Rule 12(c) motion only if ‘it
appears beyond doubt that the plaintiff cannot prove any
facts that would support his claim for relief.'”
N. Ind. Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 452 (7th Cir. 1998) (citation
omitted). This means that a Rule 12(c) motion will be granted
“only if the moving party clearly establishes that no
material issue of fact remains to be resolved and that he or
she is entitled to judgment as a matter of law.”
Nat'l Fid. Life Ins. Co. v. Karaganis, 811 F.2d
357, 358 (7th Cir. 1987). In the present case, if the
affirmative defense of law enforcement immunity
“clearly is established in the pleadings . . . and no
question of fact exists, then a judgment on the pleadings may
be appropriate.” 5 Wright & Miller, Fed. Prac.
& Proc. Civ. § 1368 (2018). To the contrary,
however, “when material issues of fact are raised by
the answer and the defendant seeks judgment on the pleadings
on the basis of this matter, his motion cannot be
granted.” Id.; see also Burlington Ins.
Co. v. Phillips-Garrett, Inc., 37 F.Supp.3d 1005, 1010
(S.D. Ill. 2014) (citing Travel All Over the World, Inc.
v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir.1996))
(“Material issues of fact . . . preclude judgment on
present case, since Defendants filed a motion to dismiss
based on an affirmative defense post-answer, the Court will
treat Defendants' motion as a Rule 12(c) motion and
review the ...