Opinion
Cause No. 3:04-CV-472 JTM.
August 16, 2005
REPORT AND RECOMMENDATION
Plaintiffs filed this action on July 19, 2004, alleging violations of 42 U.S.C. § 1983, battery, and false arrest. On August 20, 2004, Defendants filed a motion for partial judgment on the pleadings. For the following reasons, this Court RECOMMENDS that Defendants' motion [Doc. No. 11] be GRANTED.
I. RELEVANT BACKGROUND
The facts most favorable to Plaintiffs, the non-moving party, are that on July 12, 2004, Plaintiff Christina Goble was visiting Betty Barnett in the Town of Hamlet. Defendant Frank Grove, town marshal for the Hamlet Police Department, stopped at Barnett's residence and became verbally abusive with Goble. Goble then engaged in a physical altercation with Grove, which ultimately ended in Goble's arrest. Grove allegedly forced Goble into the police car and drove her around town until he came to a stop. He then took Goble out of the patrol car, pushed her against the car, removed the handcuffs, verbally abused her, and pushed her away from the car.
On July 8, 2004, Plaintiffs filed an action in the Starke County Circuit Court alleging that Grove violated 42 U.S.C. § 1983 by using excessive force and conducting an unreasonable search and seizure. In addition to the § 1983 claim against Grove, in Count II of Plaintiffs' complaint, they assert Indiana state law claims of battery and false arrest. Furthermore, Plaintiffs allege the Town of Hamlet violated 42 U.S.C. § 1983 for inadequate supervision and training. On July 19, 2004, Defendants removed the case to this Court and on August 20, 2004, they filed a motion for partial judgment on the pleadings. Defendants contend that Plaintiffs' state law claims for battery and false arrest cannot be maintained against Grove under the Indiana Tort Claims Act because he was a governmental employee acting within the scope of his employment. Plaintiff has not responded to Defendants' motion. On August 11, 2005, pursuant to 28 U.S.C. § 636(b)(1)(B), this matter was referred to the undersigned to issue a report and recommendation on Defendants' motion.
II. APPLICABLE LAW
A. Northern District Local Rule 7.1(a)
Under N.D.L.R. 7.1(a), an adverse party shall have fifteen days after service of a motion in which to serve and file a response. Failure to file a response within the time prescribed may subject the motion to summary ruling. Id.
B. Federal Rules Civil Procedure 12(c)
Fed.R.Civ.P. 12(c) provides that "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Motions for judgment on the pleadings brought under Fed.R.Civ.P. 12(c) are governed by the same standard as motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Gustafason v. Jones, 117 F. 3d 1015, 1017 (7th Cir. 1997). Thus, the court will only grant a Rule 12(c) motion if "it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Northern Indiana Gun Outdoor Shows, Inc. v. City of South Bend, 163 F. 3d 449, 452 (7th Cir. 1998). The Court shall view the facts in the light most favorable to the nonmoving party. GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F. 3d 1112, 1114 (7th Cir. 1995). However the Court is "not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or to assign any weight to unsupported conclusions of law."R.J.R. Serv. Inc. v. Aetna Cas. Sur. Co., 895 F. 2d 279, 281 (7th Cir. 1989).
III. DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
Defendants' motion for partial judgment on the pleadings seeks judgment on Count II of Plaintiffs' complaint. Count II asserts state claims for battery and false arrest against Grove in his individual capacity. Defendants assert that under the Indiana Tort Claims Act, an employee of a governmental entity cannot be sued individually for a tort committed in the course of that employee's employment. Plaintiffs have not responded to Defendants' motion. Under this Court's local rules, this Court could assume that Defendants' motion is unopposed and recommend that the court grant Defendants' motion for judgment on the pleadings. Despite Plaintiff's failure to respond, this Court will nonetheless, address the merits of Defendants' motion.
Generally, a plaintiff may not maintain an individual action against a governmental employee if the employee was acting within the scope of his employment. Ind. Code § 34-13-3-5; Miner v. Southwest Sch. Corp., 755 N.E.2d 1110, 1115 (Ind.Ct.App. 2001). Rather, in order to bring a suit against the employee personally, the plaintiff must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
Ind. Code § 34-13-3-5(c). A plaintiff's complaint must contain a reasonable factual basis supporting the allegations that the defendant was acting outside of his scope of employment. Id.;Schreiber v. Lawrence, 2003 U.S. Dist. LEXIS 4514 (S.D. Ind. 2003).
Pursuant to Ind. Code § 34-6-2-9 and Ind. Code § 34-6-2-110(4), the Town of Hamlet is a governmental entity, making Grove a governmental employee. Nowhere in Plaintiffs' complaint do Plaintiffs allege that Grove was acting outside of his employment. Rather, Plaintiffs' complaint specifically alleges that Grove was "acting as a police officer and town marshal of the Hamlet Police Department." (Pl. Comp. para. 4). In addition, Plaintiffs assert that Grove was acting pursuant to specific and direct orders from the Town of Hamlet. (Pl. Comp. para. 7). Thus, based upon Plaintiffs' complaint, there is no doubt that Plaintiffs have not alleged any fact that would support a state law claim against Grove because there is no evidence that Grove acted outside of his employment. Consequently, as the pleadings illustrate that Grove was a governmental employee acting within the scope of his employment, Defendant's motion for partial judgment on the pleadings as to Count II should be granted.
IV. CONCLUSION
For the aforementioned reasons, this Court RECOMMENDS that Defendants' motion for partial judgment on the pleadings as to Count II of Plaintiff's complaint [Doc. No. 11] be GRANTED.
NOTICE IS HEREBY GIVEN that within ten (10) days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. Fed.R.Civ.P. 72(b). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER.
SO ORDERED.