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case 3:13-cv-00207-TLS-CAN document 19 filed 09/19/13 page 1 of 12

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

DAN FRANKLIN, VIVIAN FRANKLIN,
and DESHAWN FRANKLIN,

Plaintiffs,

v.

CIVIL CITY OF SOUTH BEND, PETE
BUTTIGIEG, Mayor, CHARLES HURLEY,
Interim Chief of Police of the South Bend Police
Department, ERIC MENTZ, Patrolman,
PFC MICHAEL STUK, and OFFICER AARON
KNEPPER,

Defendants.

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CAUSE NO.: 3:13-CV-207-TLS

OPINION AND ORDER

The Plaintiffs, Dan Franklin, Vivian Franklin, and Deshawn Franklin, have sued the

Defendants for an incident occurring on July 7, 2012. Dan and Vivian Franklin are the parents of

Deshawn Franklin. The Plaintiffs allege that between the hours of 2 and 3 AM Defendants

Patrolman Eric Mentz, PFC Michael Stuk, and Officer Aaron Knepper, entered their residence

without a warrant and without probable cause, assaulted and battered Plaintiff Deshawn

Franklin, and arrested him through use of a taser. Plaintiff Deshawn Franklin was later released,

and officers explained to the Plaintiffs that they had been looking for the Franklins’ older son,

who, according to the Plaintiffs, did not live at the residence entered by the police on July 7,

2012.

On February 26, 2013, the Plaintiffs filed a twelve -count Complaint at Law [ECF No. 1]

in the St. Joseph Circuit Court, raising claims for violation of the First, Fourth, Fifth, and

Fourteenth Amendments through 42 U.S.C. § 1983, along with state claims for trespass, battery,

false arrest, false imprisonment, negligence, negligent supervision, and assault. In addition to

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Defendants Mentz, Stuk, and Knepper, the Plaintiffs raised claims against Defendant Civil City

of South Bend (South Bend), Defendant Pete Buttigieg, Mayor of South Bend, and Defendant

Charles Hurley, Interim Chief of Police of the South Bend Police Department. The Plaintiffs did

not indicate whether they intended to sue Defendants Buttigieg and Hurley in their individual or

official capacities. The Defendants filed a Notice of Removal [ECF No. 2] on March 15, 2013,

removing the matter to this Court. The Defendants filed an Answer [ECF No. 8] on April 17.

On May 2, Defendants South Bend, Buttigieg, and Hurley filed a Motion to Dismiss the

Plaintiffs Federal Based Claim Pursuant to 12(b)(6) [ECF No. 11] along with a Memorandum in

Support [ECF No. 12]. The Plaintiffs filed a Response [ECF No. 13] on May 9, and Defendants

South Bend, Buttigieg, and Hurley filed a Reply [ECF No. 15] on May 20. The Motion to

Dismiss is fully briefed and ripe for this Court’s ruling.

STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510,

1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in

the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn

from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.

1995).

The Supreme Court has articulated the following standard regarding factual allegations

that are required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his

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“entitlement to relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and

footnote omitted). A complaint must contain sufficient factual matter to “state a claim to relief

that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at

556).

Although the court must accept as true all well-pleaded facts and draw all permissible

inferences in the Plaintiff’s favor, it need not accept as true “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678; see also

Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012) (stating that a court need not accept as true

“legal conclusions or conclusionary allegations that merely recite a claim’s elements”). Legal

conclusions can provide a complaint’s framework, but unless well-pleaded factual allegations

move the claims from conceivable to plausible, they are insufficient to state a claim. Iqbal, 556

U.S. at 680; see also Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011). A plaintiff can also

plead himself out of court if he pleads facts that preclude relief. See Atkins v. City of Chi., 631

F.3d 823, 832 (7th Cir. 2011); Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007); McCready

v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). Finally, determining whether a complaint states

a plausible claim for relief requires a reviewing court to “draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

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DISCUSSION

Defendants South Bend, Buttigieg, and Hurley request dismissal of only the federal

§ 1983 claims brought in the Plaintiffs’ fourth and fifth causes of action. The Court will address

these claims in turn.

A.

The Plaintiffs’ Fourth Cause of Action

The Plaintiffs state a fourth cause of action for invasion of privacy in violation of the

First Amendment against all Defendants. Specifically, the Plaintiffs allege as follows concerning

the July 7 incident:

29.

30.

31.
32.

After the incident, defendants to the local media, that Plaintiff home had been
entered because a violent crime had been committed and the suspect was in
the Plaintiffs’ home.
By supplying such information to the media, defendants knew and intended
that such information would be published to the community.
The media published the defendant’s untrue version of the incident.
The foregoing violated plaintiffs’ First Amendment right to privacy.

(Compl. 7–8, ECF No. 1.)

The Defendants insist that dismissal of the Plaintiffs’ fourth cause of action is appropriate

because the Plaintiffs have failed to plead facts plausibly suggesting the possibility of relief. The

Plaintiffs have sued the Defendants for violations of their federal constitutional rights pursuant to

42 U.S.C. § 1983. Section 1983 imposes liability on any “person” who, while acting under color

of state law, deprives an individual of federally protected rights. 42 U.S.C. § 1983; see Gomez v.

Toledo, 446 U.S. 635, 640 (1980). Section 1983 authorizes claimants to sue persons in their

individual capacities who are alleged to have violated such rights. Lewis v. Downey, 581 F.3d

467, 472–73 (7th Cir. 2009). Section 1983 also authorizes claimants to sue persons in their

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official capacities. See Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 514–15 (7th

Cir. 2007). However, “[s]ection 1983 does not establish a system of vicarious responsibility.”

Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009). Instead, “[l]iability depends on each

defendant’s knowledge and actions, not on the knowledge or actions of persons they supervise.”

Id. at 594; see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (holding that a

“local government may not be sued under § 1983 for an injury inflicted solely by its employees

or agents”). Personal involvement is an element of every claim under 42 U.S.C. § 1983. Chavez

v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001).

As noted above, the Plaintiffs did not indicate in their Complaint whether they intended

to sue Defendants Buttigieg and Hurley in their individual or official capacities. As to Defendant

South Bend, the Plaintiffs’ claims against the municipality are clearly not individual capacity

claims. But the claims against Defendants Buttigieg and Hurley are less clear. In the Plaintiffs’

fourth cause of action, for example, the Plaintiffs appear to be alleging that some or all of the

Defendants personally went to local media and stated that the police had entered the Plaintiffs’

home because a violent crime had been committed and the suspect was in the home. If the

Plaintiffs had alleged that Defendants Buttigieg or Hurley personally took this action, this would

be a plausible claim against these Defendants in their individual capacities, and would survive a

motion to dismiss under Twombly. Nowhere in the Complaint, however, do the Plaintiffs give

any indication which Defendants personally took the actions complained of in the fourth cause of

action. Accordingly, the Court will grant the Defendants’ Motion to Dismiss as to the Plaintiffs’

fourth cause of action concerning Defendants Buttigieg and Hurley in their individual capacities.

The Defendants in their Motion assume that the Plaintiffs’ fourth cause of action as

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against Defendants South Bend, Buttigieg, and Hurley, can only be an official capacity claim.

Because an official capacity claim requires personal involvement on the part of those being sued,

Chavez, 251 F.3d at 651, the Defendants argue that the Plaintiffs have failed to plausibly assert

municipal liability.

A government entity can be held liable under § 1983 for its own acts, as opposed to those

of its employees, as long as they are the moving force behind the constitutional violation. Estate

of Sims, 506 F.3d at 514–15. A government entity acts through its official policy or custom,

which can be demonstrated by the following:

(1) an express policy that causes a constitutional deprivation when enforced; (2) a
widespread practice that is so permanent and well-settled that it constitutes a custom
or practice; or (3) an allegation that the constitutional injury was caused by a person
with final policymaking authority.

Id. at 515.

The Court agrees with the Defendants that the Plaintiffs have failed to plausibly suggest

the possibility of relief against Defendant South Bend or against Defendants Buttigieg and

Hurley in their official capacities. In asserting claims against a municipality, under Twombly and

Iqbal, a plaintiff must “‘provid[e] some specific facts’ to support the legal claims asserted in the

complaint.” McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011) (quoting Brooks v. Ross,

578 F.3d 574, 581 (7th Cir. 2009)). This means that “‘the plaintiff must give enough details

about the subject-matter of the case to present a story that holds together.’” McCauley, 671 F.3d

at 616 (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)). Here, the

Plaintiffs were required to plead factual content that allows the court to draw the reasonable

inference that Defendants South Bend, Buttigieg, and Hurley maintained a policy, custom, or

practice of invasion of privacy that was the moving force behind the violation complained of in

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the fourth cause of action. See McCauley, 671 F.3d at 616. The Plaintiffs have failed to do so.

While the Plaintiffs assert generally that Defendants Buttigieg and Hurley had the ability to set

policies for the South Bend Police Department, nowhere do the Plaintiffs assert that Defendants

Buttigieg or Hurley set any policies relating to the First Amendment or invasion of privacy. Nor

do the Plaintiffs assert that either Defendant Buttigieg or Hurley was a final policymaker for the

purposes of a § 1983 municipal liability claim. See Valentino v. Vill. of S. Chi. Heights, 575 F.3d

664, 675–76 (7th Cir. 2009) (distinguishing between decisionmakers and policymakers). In their

Response, the Plaintiffs argue in general that Defendants Buttigieg and Hurley failed to properly

train and failed to set appropriate policies. But nowhere in their Response do the Plaintiffs

suggest how any policy, practice, or custom set by Defendants Buttigieg or Hurley impacted the

First Amendment invasion of privacy claim from the fourth cause of action. Absent some

specific facts, the Plaintiffs’ allegations in the fourth cause of action as against Defendants South

Bend, Buttigieg, and Hurley are merely conclusory formulations of the elements of a cause of

action, and dismissal under Rule 12(b)(6) is appropriate. See McCauley, 671 F.3d at 618

(upholding dismissal of municipal liability claim because the plaintiff failed to plausibly suggest

that the municipality had a policy or practice that violated the law); Adams v. Tortorello, No. 13

C 455, 2013 WL 4476626, at *3 (N.D. Ill. Aug. 20, 2013) (dismissing municipal liability claim

under Twombly and Iqbal); Danilkowicz v. City of Park Ridge, No. 13 C 3103, 2013 WL

4401428, at *3 (N.D. Ill. Aug. 15, 2013) (citing McCauley, and dismissing municipal liability

claim under Twombly and Iqbal); Starks v. City of Waukegan, — F. Supp. 2d —, 2013 WL

2243089, at *10–11 (N.D. Ill. May 21, 2013) (dismissing municipal liability claim under Iqbal);

McGreal v. AT & T Corp., 892 F. Supp. 2d 996, 1018–19 (N.D. Ill. 2012) (stating that the

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plaintiff’s municipal liability claim failed to meet the Twombly standard). Accordingly, the Court

will dismiss the claims in the Plaintiff’s fourth cause of action as against Defendants South

Bend, Buttigieg, and Hurley.

B.

The Plaintiffs’ Fifth Cause of Action

The Plaintiffs state a fifth cause of action for failure to protect against all Defendants.

Specifically, the Plaintiffs allege as follows:

34.

35.

Defendants or some of them placed plaintiffs in positions of danger, to wit,
having their home invaded without probable cause and without a warrant,
subjecting Deshawn Franklin to excessive force, falsely arresting him, and
invading the Franklin’s privacy.
Defendants and others of them had the then present ability to protect
plaintiffs from harm.

(Compl. 8.) The Plaintiffs also allege that the “senior officer among the Defendants present, who

will be identified after discovery has been conducted,” had the ability to prevent the two other

defendants from entering the home, assaulting, battering, and using excessive force upon

Plaintiff Deshawn Franklin, and unlawfully arresting Plaintiff Deshawn Franklin, but “recklessly

and with gross negligence, failed to do so.” (Id. 8–9.) Finally, the Plaintiffs allege that “[a]ll

defendants had the ability to prevent transmission of information and misinformation about

plaintiffs to the local media, but recklessly and with gross negligence, failed to do so.” (Id. 9.)

The Plaintiffs do not allege that Defendants Buttigieg or Hurley were present at their residence

during the July 7 incident.

The Defendants insist that dismissal of the Plaintiffs’ fifth cause of action is appropriate

because the Plaintiffs have failed to plead facts plausibly suggesting the possibility of relief. For

many of the reasons discussed above, the Court agrees. The Plaintiffs do not appear to be

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asserting individual capacity claims against Defendants Buttigieg and Hurley. Instead, the

Plaintiffs argue that Defendants South Bend, Buttigieg, and Hurley were responsible for setting

the policies, practices, and customs that governed the actions of the police Defendants. The

Plaintiffs, therefore, appear to be raising a municipal liability claim against Defendant South

Bend, and official capacity claims against Defendants Buttigieg and Hurley for failure to

institute policies, practices, and customs that would have protected the Plaintiffs from the First

and Fourth Amendment violations they allege in the fifth cause of action. But, as discussed

concerning the fourth cause of action, in order to assert a municipal liability claim, the Plaintiffs

must “‘plead factual content that allows the court to draw the reasonable inference’ that the City

maintained a policy, custom, or practice” that was the driving force behind the violation.

McCauley, 671 F.3d at 616 (quoting Iqbal, 129 S. Ct. at 1949; citing Monell, 436 U.S. at 694;

Srail v. Village of Lisle, Ill., 588 F.3d 940, 943 (7th Cir. 2009)) (brackets omitted). Further,

under Iqbal, “knowledge of subordinates’ misconduct is not enough for liability. The supervisor

must want the forbidden outcome to occur.” Vance v. Rumsfeld, 701 F.3d 193, 204 (7th Cir.

2012). As the Seventh Circuit has stated in the context of a failure to train claim under § 1983,

“an inadequacy in police training can serve as a basis for liability under Section 1983, but only

where the failure to train amounts to deliberate indifference to the citizens the officers

encounter.” Matthews v. City of E. St. Louis, 675 F.3d 703, 709 (7th Cir. 2012) (citing Hollins v.

City of Milwaukee, 574 F.3d 822, 827 (7th Cir. 2009); City of Canton, Ohio v. Harris, 489 U.S.

378, 388 (1989)).

Here, the Plaintiffs have failed to plausibly suggest that Defendants South Bend,

Buttigieg, or Hurley maintained a policy, practice, or custom that resulted in a lack of First or

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Fourth Amendment protections for the Plaintiffs. Apart from suggesting the absence of an

appropriate policy, the Plaintiffs have pled no facts to support their claims in the fifth cause of

action. Merely suggesting the absence of an appropriate policy is not enough to survive

dismissal. Where a plaintiff fails to set out the grounds upon which his claims rest, the omission

“is fatal.” Strauss v. City of Chi., 760 F.2d 765, 768 (7th Cir. 1985). “To allow otherwise would

be tantamount to allowing suit to be filed on a respondeat superior basis. Plaintiffs could file

claims whenever a police officer abused them, add Monell boilerplate allegations, and proceed to

discovery in the hope of turning up some evidence to support the ‘claims’ made.” Id. In their

Response, the Plaintiffs argue that the Complaint “alleges that the Interim Police Chief and the

Mayor personally knew of the alleged wrongdoing and acquiesced to said wrongdoing.” (Resp.

3, ECF No. 13.) But the Plaintiffs are mistaken. Nowhere does the Complaint allege that

Defendants Buttigieg or Hurley “turn[ed] a blind eye” towards conduct involving the Plaintiffs.

Chavez, 251 F.3d at 651. The Complaint alleges that Defendants Buttigieg and Hurley had the

responsibility for setting policies, and failed to set a policy or procedure that would have

protected the Plaintiffs from harm. The Plaintiffs have generally alleged that some unspecified

Defendants had an ability to protect them and failed to do so. They have alleged that all

Defendants had the ability to prevent violation of their First Amendment rights, and failed to do

so. But they have failed to identify any policy, practice, or custom that was the driving force

behind the failure to protect claims in the fifth cause of action. Without specific facts “to present

a story that holds together,” McCauley, 671 F.3d at 616, the Plaintiffs’ failure to protect claims

amount to nothing more than “Monell boilerplate allegations,” Strauss, 760 F.2d at 768, and

dismissal of such claims is appropriate.

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Moreover, even if the Plaintiffs had plausibly suggested that a policy, custom, or practice

of Defendants South Bend, Buttigieg, or Hurley was the driving force behind the failure to

protect, they have not alleged that the Defendants actually wanted the forbidden outcome to

occur, Vance, 701 F.3d at 204, nor that the Defendants in training their subordinates were

deliberately indifferent to a risk of harm to the Plaintiffs, Matthews, 675 F.3d at 709. For all

these reasons, because the Plaintiffs have failed to plead facts that allow the Court to draw the

reasonable inference that the Plaintiffs are entitled to relief against Defendants South Bend,

Buttigieg, and Hurley under their fifth cause of action, the Court will dismiss these claims

pursuant to Twombly and Iqbal.

C.

Opportunity to Amend

A court “should freely give leave [to amend pleadings] when justice so requires.” Fed. R.

Civ. P. 15(a)(2). See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“District courts

routinely do not terminate a case at the same time that they grant a defendant’s motion to

dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the

plaintiff at least one opportunity to amend her complaint.”); Barry Aviation Inc. v. Land O’Lakes

Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (stating that the general rule is that

“the district court should grant leave to amend after granting a motion to dismiss”). However, a

court should not grant leave to amend “where the amendment would be futile.” Stanard v.

Nygren, 658 F.3d 792, 797 (7th Cir. 2011) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th

Cir. 2008)).

The Plaintiffs have failed to plausibly suggest that a policy, custom, or practice instituted

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by Defendants South Bend, Buttigieg, or Hurley was the driving force behind the invasion of

privacy claims in the fourth cause of action, or the failure to protect claims in the fifth cause of

action. Moreover, the Plaintiffs have failed to plead that Defendants Buttigieg or Hurley were

personally involved in any of the actions complained of in the fourth and fifth causes of action.

However, it does not appear that amendment to the Plaintiffs’ claims would be futile.

Accordingly, the Court will dismiss the Plaintiffs’ claims asserted against Defendants South

Bend, Buttigieg, and Hurley in the fourth and fifth causes of action without prejudice, and with

leave to amend to assert claims comporting with Twombly, Iqbal, Monell, and McCauley. The

Plaintiffs should specifically state whether they intend to assert claims against Defendants

Buttigieg and Hurley in their individual or official capacities.

CONCLUSION

For the foregoing reasons, the Court GRANTS the Motion to Dismiss [ECF No. 11]. The

Court DISMISSES WITHOUT PREJUDICE the Plaintiffs’ claims against Defendants South

Bend, Buttigieg, and Hurley, asserted in the fourth and fifth causes of action. The Court

AFFORDS the Plaintiffs fourteen days from the date of this Opinion and Order to file an

amended complaint.

SO ORDERED on September 19, 2013.

s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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