United States District Court, N.D. Indiana, Hammond Division
KATHY L. LYNCH, and KAREN S. DUNNING, Plaintiffs,
SCOTT NOWLAND, KATHY FRANKO, and UNITED STATES acting by and through its Drug Enforcement Administration, Defendants.
OPINION AND ORDER
S. VAN BOKKELEN, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on a Motion to Dismiss [DE 28],
filed by Defendants United States of America and Scott
Nowland on August 23, 2017, and on State Defendant's
Motion for Judgment on the Pleadings [DE 39], filed by
Defendant Kathy Franko on November 21, 2017. Plaintiffs Kathy
L. Lynch and Karen S. Dunning filed a response to the Motion
to Dismiss on October 3, 2017, and the Government and Nowland
filed a reply on October 17, 2017. Lynch and Dunning filed a
response to the Motion for Judgment on the Pleadings on
November 21, 2017, and Franko filed a reply on December 5,
their Amended Complaint, Lynch and Dunning state that they
are bringing claims of false arrest and malicious prosecution
in violation of the Fourth Amendment to the United States
Constitution, negligent supervision by the Drug Enforcement
Agency (DEA) of Nowland and Franko, respondeat
superior liability of the DEA for Nowland and
Franko's acts and omissions, and conspiracy by Nowland,
Franko, the DEA, and state and local authorities to deprive
Lynch and Dunning of their civil rights in violation of 42
U.S.C. § 1985.
and Dunning allege the following in their Amended Complaint.
Lynch and Dunning are Advanced Practice Nurses with authority
under Indiana law to prescribe medications under the
supervision of collaborating physicians. The DEA investigated
Lynch and Dunning for prescribing medicine outside of their
statutory authority without seeking an advisory opinion or
other ruling from the Indiana Nursing Board regarding whether
Lynch and Dunning were exceeding their authority. Nowland and
Franko were the lead investigators. Lynch and Dunning were
arrested on or about February 2, 2015, and charged with,
among other offenses, conspiracy to deal in controlled
substances. Lynch was acquitted at trial, and all charges
against Dunning were dismissed.
Motion to Dismiss
purpose of a motion to dismiss pursuant to Rule 12(b)(6) for
failure to state a claim is to test the sufficiency of the
pleading, not to decide the merits of the case. See
Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.
1990). Federal Rule of Civil Procedure Rule 8(a)(2) provides
that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” However, “recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S.
661, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). As the Supreme Court has stated,
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Id. Rather, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). A complaint is facially plausible if a court
can reasonably infer from factual content in the pleading
that the defendant is liable for the alleged wrongdoing.
Id. (citing Twombly, 550 U.S. at 570).
Seventh Circuit has synthesized the standard into three
requirements. See Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009). “First, a plaintiff must provide
notice to defendants of her claims. Second, courts must
accept a plaintiff's factual allegations as true, but
some factual allegations will be so sketchy or implausible
that they fail to provide sufficient notice to defendants of
the plaintiff's claim. Third, in considering the
plaintiff's factual allegations, courts should not accept
as adequate abstract recitations of the elements of a cause
of action or conclusory legal statements.” Id.
Motion for Judgment on the Pleadings
can move for judgment on the pleadings after the filing of
both the complaint and answer. Fed.R.Civ.P. 12(c). “A
court will grant a Rule 12(c) motion only when it appears
beyond a doubt that the plaintiff cannot prove any facts to
support a claim for relief and the moving party demonstrates
that there are no material issues of fact to be
resolved.” Brunt v. Serv. Employees
Int'l Union, 284 F.3d 715, 718-19 (7th Cir.
2002) (citation omitted). A court will take all the alleged
facts in the complaint as true, drawing all reasonable
inferences in favor of the non-moving party. See
Pisciotta v. Old Nat'l Bancorp, 499 F.3d
629, 633 (7th Cir. 2007) (citing Thomas v.
Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir.
2004)). In a Rule 12(c) motion, courts use the same standard
of review as employed in a Rule 12(b)(6) motion to dismiss.
Id. (citing Guise v. BMW Mortgage,
LLC, 377 F.3d 795, 798 (7th Cir. 2004)).
general rule, evidence cannot be submitted to the Court for
consideration in ruling on a motion brought under Rule
12(b)(6). The Government and Nowland have submitted six
exhibits with their Rule 12(b)(6) motion to dismiss, and they
contend that these exhibits may be considered under two
exceptions to the general rule: judicial notice and
incorporation by reference.
exhibits in question are:
1. Nowland's January 29, 2015 Affidavit of Probable Cause
for Arrest Warrant in support of an arrest warrant for Lynch;
2. Nowland's January 29, 2015 Affidavit of Probable Cause
for Arrest Warrant in support of an arrest warrant for
3. The February 4, 2015 Order for the issuance of a warrant
for Lynch's arrest;
4. The February 4, 2015 Order for the issuance of a warrant
for Dunning's arrest;
5. Lynch's September 22, 2016 Claim for Damage, Injury,
or Death submitted to the DEA; and
6. Dunning's December 7, 2016 Claim for Damage, Injury,
or Death ...