Opinion
Cause No. 1:02-CV-1319-DFH
March 3, 2003
ENTRY ON MOTION TO DISMISS
Plaintiff Matthew J. Schreiber was fired from his position as a police officer with the Indiana State Capitol Police Department on December 4, 2000. He filed this suit against defendants Glenn Lawrence, Ron Cutter, Ken Peters, and Brian Renner in their individual capacities pursuant to 42 U.S.C. § 1983. Schreiber alleges that defendants violated his rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. Count 1 alleges retaliatory discharge in violation of Schreiber's First Amendment right to freedom of speech; count 2 alleges a violation of his substantive due process rights; and count 3 alleges deprivation of a liberty interest without due process. Counts 1 through 3 also rely on parallel provisions in the Indiana Constitution. Schreiber has also alleged in counts 4 and 5 claims under the Indiana Constitution and common law for damage to reputation and intentional infliction of emotional distress. The court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343, and 1367.
Defendants have moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons stated below, the defendants' motion to dismiss is granted in part and denied in part.
The Applicable Legal Standard
As discussed below, the challenge to the court's subject matter jurisdiction fails because the Eleventh Amendment defense does not affect the court's subject matter jurisdiction. The governing standard here is that for motions to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The court takes as true the plaintiff's factual allegations and draws all reasonable inferences in his favor. Veazey v. Communications Cable of Chicago, Inc., 194 F.3d 850, 853 (7th Cir. 1999). "Dismissal under Rule 12(b)(6) is proper only if the plaintiff could prove no set of facts in support of his claims that would entitle him to relief." Chavez v. Illinois State Police, 251 F.3d 612, 648 (7th Cir. 2001).
Background
Taking the well-pleaded factual allegations as true, plaintiff Schreiber was employed as an unarmed security guard by the Indiana State Capitol Police in December 1991. Cplt. ¶ 12. In 1993, he completed his academy training and became a certified police officer. Id. During the summer of 2000, Schreiber served as Chief Steward for UAW Local 9212, which represents the officers in the Indiana State Capitol Police Department. Id., ¶ 14. In this capacity, Schreiber was required to represent fellow employees in the grievance process and to appear in their defense at pre-disciplinary hearings. Id. As a result, Schreiber often inquired into the work-related activities of other officers. Id.
On or about August 14, 2000, Officer Brian Neal informed Schreiber of the possibility that certain police officers were involved in "ghost employment." Id., ¶ 15. Schreiber investigated these allegations and learned that the officers were performing services with state patrol cars to help raise money for the Muscular Dystrophy Association and that those services were not authorized by the state. Id., ¶¶ 15-17. Approximately two days later, Schreiber confronted defendant Peters, the Operations Captain for the Capitol Police Department, about these allegations of illegal conduct. Id., ¶¶ 5, 18. Schreiber alleges that as a result of that conversation with Peters, the employees accused of the conduct were forced to sign an off-duty agreement that authorized the off-duty services. Id., ¶ 19.
Schreiber further alleges that as a result of these actions, his employment was terminated by defendant Ron Cutter, who was the Chief of the Capitol Police Department. Id., ¶¶ 20-24. Plaintiff Schreiber alleges that defendant Brian Renner was the hearing officer at his pre-disciplinary hearing and that defendant Glenn Lawrence, who served as Commissioner of the Indiana Department of Administration, "oversaw the aforementioned events and failed to affirmatively act to protect Schreiber's constitutionally protected rights." Id., ¶ 24.
Discussion
I. Federal Claims
Defendants argue that Schreiber's Section 1983 claims must be dismissed because defendants, as state officials, are not "persons" under 42 U.S.C. § 1983, which authorizes a cause of action against "any person" who, while acting under color of state law, violates another person's federal rights. While this is an accurate statement of the law for official capacity claims for damages, see Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), plaintiff has not brought any claims for damages against the defendants in their official capacities. However, Schreiber does admit that there was at least one reference in his complaint to the defendants in their official capacities. He agrees with defendants that, to the extent that has occurred, the claim should be dismissed. See Pl. Br. at 2 n. 1 (referring to references to defendants in official capacities as "administrative oversights"). Thus, to the extent that there were any "administrative oversights," naming the defendants in their official capacities, the motion is granted. However, plaintiff's claims under Section 1983 against the defendants in their individual capacities all survive the motion to dismiss. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
II. State Law Claims
A. The Indiana Tort Claims Act and Personal Liability
Defendants argue that in the actions alleged in the complaint, they were acting within the scope of their employment and as a result are not personally liable under the Indiana Tort Claims Act ("ITCA"). Generally, a claim under the ITCA runs against the governmental entity. However, when a government employee was acting outside of the scope of his employment, suit may be brought against the employee personally. See Ind. Code § 34-13-3-5(a).
Under the ITCA a "lawsuit filed against an employee personally 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(b). In addition, the "complaint must contain a reasonable factual basis for supporting the allegations." Id.
The Indiana Court of Appeals has addressed this scope of employment question under the ITCA in two recent cases. See Bushong v. Williamson, 760 N.E.2d 1090, 1098 (Ind.App. 2001), trans. granted, 774 N.E.2d 514 (Ind. 2002); Miner v. Southwest School Corp., 755 N.E.2d 1110, 1114-15 (Ind.App. 2001).
In Miner v. Southwest School Corp., the plaintiff was involved in a automobile accident with Miller, the superintendent of schools, who was driving a school corporation car. 755 N.E.2d 1110, 1112. Miller was returning home from a high school girl's basketball game when he went through an intersection on a yellow light, striking the plaintiff's car. The passenger in plaintiff's car was killed, and the plaintiff was seriously injured.
The plaintiff filed a three-count complaint. In the first count, against the school corporation, the plaintiff alleged that Miller had acted willfully and wantonly. In the second count, against Miller individually, the plaintiff requested punitive damages, alleging that Miller was aware of a risk to others and disregarded that risk. In the third count, against Miller as superintendent, the plaintiff alleged that Miller might have been acting in his official capacity at the time of the accident. The trial court granted partial summary judgment in favor of the school corporation and Miller on the plaintiff's claims that Miller acted willfully and wantonly, and that he acted outside of the scope of his employment. Id. at 1113. The trial court also granted summary judgment in favor of the school corporation and Miller on the issue of punitive damages. Id.
The Indiana Court of Appeals affirmed on both issues. The court first stated that the plaintiff had not produced any evidence that demonstrated Miller was acting willfully and wantonly. Id. at 1114. The court then addressed the issue of the scope of Miller's employment. It stated that the plaintiff was specifically required to allege in the complaint that Miller was acting outside of the scope of his employment "and then supply facts supporting that allegation in her complaint." Id. at 1115. The plaintiff did not do either. Rather, she did not specifically make that allegation and provide factual support until after the defendants had filed their motion for summary judgment. The court determined that the proper course of action would have been for the plaintiff to amend her complaint, with the required factual allegations. Id. Since she did not do so, her tort claim against Miller as an individual was barred. Id. at 1116.
In Bushong v. Williamson, the Bushongs filed suit against their son's teacher, defendant Williamson. 760 N.E.2d 1090, 1092. During physical education class, the Bushongs' son had kicked Williamson in the buttocks. Id. at 1093. In response, Williamson picked up the boy by his feet, held him upside down, and struck him in the buttocks at least twice. The boy claimed that Williamson hit him several times on the buttocks, legs and lower back, hard enough to leave bruises. The Bushongs filed suit against Williamson individually, alleging that Williamson "caused damage to them by a loss of consortium, love, and companionship." Id. They also stated claims for battery and "interference with their property right in their son." Id. The trial court granted summary judgment in favor of Williamson.
A divided panel of the Indiana Court of Appeals reversed the trial court. The majority stated that under the ITCA, "a lawsuit may not be brought against a government employee personally if the complaint, on its face, alleges that the action leading to the claim occurred within the scope of employment." Id. at 1095. The majority found that Indiana Code § 34-13-3-5(a) "restricts the court's ability to look at documents outside of the complaint for purposes of determining whether or not the plaintiffs allege that the act occurred within the scope of employment." Id. The majority went on to explain that a "reading of [Indiana Code] § 34-13-3-5(a) in isolation would seem to strongly imply that if the acts of the employee are within the scope of employment, the employee may neither be sued personally nor be subject to a judgment for the damage or injury. Such is not the case, however." Id. at 1098. Rather, the "legislature has declared that there are times when it is appropriate to sue the employee personally. This is true whether or not the facts as they ultimately unfold reflect that the employee's actions were within the scope of his employment, so long as the complaint itself does not allege that the employee acted within the scope of his employment." Id.
In dissent, Judge Friedlander argued that the majority's reading of the ITCA would turn Indiana Code § 34-13-3-5(a) "into a `magic words' provision," such that as long as "a plaintiff does not make the tactical mistake of describing the complained-of acts by using the phrase `in the scope of employment,' then the matter will proceed to trial." Id. at 1100. Rather, in his view, Indiana Code § 34-13-3-5 "merely clarifies . . . actions that might take an employee's action outside the scope of employment, and also adds the right to amend the complaint if the governmental entity alleges that the employee was not acting within the scope of employment." Id. Thus, he concluded that, rather than focusing on the complaint exclusively, the focus should be placed on what evidence the plaintiff has produced that would demonstrate that the defendant's actions were outside of the scope of his employment. Based on that approach, Judge Friedlander would have concluded that Williamson's actions as a teacher were within the scope of his employment, constituting "nothing more or less than the disciplining of a recalcitrant student." Id. at 1101.
This court's obligation here is to resolve the question of state law as it believes the state supreme court would decided it. The court finds the opinion in Miner and Judge Friedlander's dissent in Bushong convincing on this issue. The Indiana Supreme Court is likely to find that more than mere allegations are needed to transform a public official's decision to fire a public employee into an act outside the scope of the firing official's employment. Also, the Indiana Supreme Court's decision to grant transfer in Bushong has the effect of vacating the opinion of the Court of Appeals. Ind. Rule App. P. 58(A). In other words, the plaintiff must do more than merely invoke the "magic words," and must allege facts demonstrating that the defendants were acting outside of the scope of their employment. See Bushong, 760 N.E.2d at 1100-01 (Friedlander, J., dissenting).
While plaintiff Schreiber has alleged that the defendants were acting in their "individual capacities" for purposes of Section 1983, he has not alleged that any of them acted outside the scope of their employment. He also has not alleged any facts that would support such a theory. Rather, the nature of the claim — an employer's internal investigation of an employee resulting in termination — is plainly within the scope of the defendants' employment. See Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.App. 1996) (holding that county employee's ITCA claim of wrongful discharge was based on acts within defendant county official's scope of employment). No "magic words" in the complaint could transform such actions to something outside the scope of these defendants' employment.
B. The Indiana Tort Claims Act and Notice
Schreiber concedes that he did not file a notice of tort claim with the Office of the Attorney General. See Pl. Resp. at 3; Def. Ex. A. As a result of his failure to file such notice, defendants argue that Schreiber's state common law claims are barred by the ITCA. Ind. Code § 34-13-3-6. Plaintiff argues in response that the ITCA's notice provision does not apply to his particular claims. Whether the plaintiff complied with the ITCA's procedural requirements is a question of law for the court to decide. See Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 437 (Ind.App. 1996). The burden of proof for demonstrating compliance is on the plaintiff. See id.
Plaintiff argues that filing suit against an employee in his individual capacity is sufficient to avoid the notice requirements of the ITCA, while defendants contend that claims against all state employees are subject to the notice requirements. Neither position is an entirely accurate reflection of the law in Indiana.
The ITCA provides in relevant part that a claim against the state or employees of the state "is barred unless notice is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs." Ind. Code. § 34-13-3-6; Swanson, 671 N.E.2d at 437, citing Poole v. Clase, 476 N.E.2d 828, 830-32 (Ind. 1985). However, when "the plaintiff elects to sue only the governmental employee, notice is required only if the act or omission causing the plaintiff's loss is within the scope of defendant's employment." VanValkenburg v. Warner, 602 N.E.2d 1046, 1049 (Ind.App. 1992) (ITCA notice provisions did not apply to student suing professor for injuries occurring while at professor's home because "employment by the University is only incidentally related to his obligation, as the owner of a private residence, to maintain his premises in a reasonably safe condition"), citing Poole, 476 N.E.2d at 831; see also Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.App. 1996) (former employee's claims of wrongful discharge were subject to ITCA notice provisions because there was a "causal connection between the injuries sustained by [plaintiff] and [defendant's] employment by a political subdivision"). Thus, the question here is whether there was a "causal connection" between Schreiber's loss and the defendants' employment by the Indiana State Capitol Police Department. Bienz, 674 N.E.2d at 1004.
In Bienz v. Bloom, the Indiana Court of Appeals affirmed the trial court's dismissal of a fired employee's claim because she failed to comply with the notice provisions of the ITCA. 674 N.E.2d 998. In that case, plaintiff Bienz had worked in the Allen County Assessor's Office for approximately sixteen years. She alleged that the defendant Bloom, who was the Allen County Auditor, fired her when she refused to assist Bloom in discriminatory practices. Id. at 1000-01. She filed suit, "alleging federal and state constitutional violations, retaliatory discharge, breach of contract, defamation, conspiracy and two counts of intentional infliction of emotional distress." Id. at 1001. She did not file a notice of tort claim under the ITCA. Bienz argued that her claims did not fall within the purview of the ITCA because her claims were against Bloom in her individual capacity. Id. at 1004.
In rejecting that argument, the court noted that "governmental employment, standing alone, does not trigger the notice provisions of the [ITCA]." Id. Rather, "notice is required only if the act or omission causing the plaintiff's loss is within the scope of the defendant's employment." Id. The court had no difficulty, however, in finding that when Bloom fired Bienz, she "did so within the scope of her employment as Auditor of Allen County," regardless of the fact that Bloom acted for allegedly unlawful reasons. Id. (affirming trial court's dismissal for failure to state a claim upon which relief can be granted); see also Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993) ("In Indiana, an employee's tortious act may fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business.").
The same reasoning applies to this case. Schreiber has essentially alleged that he was discharged for whistleblowing, and that this termination amounted to intentional infliction of emotional distress. However, as a matter of law, any actions that defendants took in terminating him were done within the scope of defendants' employment. There was a causal connection between defendants' various positions with the State government and Schreiber's termination. Compare Bienz, 674 N.E.2d at 1004 (termination of employee within scope of employment; affirming dismissal for failure to state a claim upon which relief can be grated), with VanValkenburg, 602 N.E.2d at 1049 (professor's duty to maintain home in reasonably safe condition not within scope of employment). As a result, the ITCA's notice requirement provisions apply to Schreiber's claims. Therefore, his claim for intentional infliction of emotional distress is dismissed because he failed to file a notice of tort claim within the statutory time period.
Plaintiff's federal constitutional claims are not subject to the ITCA. Felder v. Casey, 487 U.S. 131, 138 (1988) (principles of federalism preempt application of state notice of claim statute to actions brought under § 1983). It is not entirely clear whether plaintiff's state constitutional claims are subject to the ITCA, but those claims fail for other grounds set forth below. See Baker v. Washington Bd. of Works, 2000 WL 33252101, *7 (S.D.Ind. June 8, 2000) (stating law is unclear whether Indiana courts would apply ITCA to state constitutional claims).
C. Private Causes of Action under the Indiana Constitution
Defendants next argue that plaintiff's claims for damages under the Indiana Constitution must be dismissed because Indiana courts have not recognized an implied right of action for damages under the Indiana Constitution. Plaintiff responded by arguing that his claims under the Indiana Constitution are for injunctive relief only.
The Supreme Court of Indiana has never taken the step under the Indiana Constitution that the Supreme Court of the United States took under the federal Constitution in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). That decision recognized an implied cause of action under the United States Constitution to sue individual federal agents for damages for violations of the federal constitutional rights. The Indiana Supreme Court has not yet given any indication that it is inclined to imply such a cause of action under the Indiana Constitution.
One case in the Northern District of Indiana has held that a plaintiff may bring a damages action under the equal protection clause of the Indiana Constitution. See Discovery House, Inc. v. Consolidated City of Indianapolis, 43 F. Supp.2d 997, 1004 (N.D.Ind. 1999) (allowing private cause of action for damages under Indiana Constitution), rev'd on other grounds, ___ F.3d ___, ___, 2003 WL 194741, *1 (7th Cir. Jan. 30, 2003) (remanding case for entry of judgment as a matter of law for defendants on federal claims; no mention of state constitutional claims going to trial). The Discovery House district court decision is not persuasive on this point. It is not persuasive because the two Indiana cases offered in support are readily distinguishable. The first, Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), involved a state constitutional provision that expressly provides for "just compensation," for the taking of private property or "particular services" for public purposes. Bayh offers no support for an implied right of action for damages under other constitutional provisions. The second case, Hilburt v. Town of Markleville, 649 N.E.2d 1036, 1041 (Ind.App. 1995), merely assumed without discussion that a constitutional claim for damages might be available, and rejected the claim for damages on other grounds.
The Discovery House district court opinion is also contrary to the weight of federal authority, which appears to be unanimous in this district. See Willits v. Wal-Mart Stores, Inc., 2001 WL 1028778, *15 (S.D.Ind. July 30, 2001) (McKinney, C.J.) (Indiana Supreme Court has not yet recognized private cause of action for damages under Indiana Constitution); Baker v. Washington Board of Works, 2000 WL 33252101, *8 (S.D.Ind. June 8, 2000) (Tinder, J.) (same); Boczar v. Kingen, 2000 WL 1137713, *24-25 (S.D.Ind. March 9, 2000) (Tinder, J.) (same); Craig v. Christ, No. IP 96-1570-C H/G, Entry on Defs.' Motions for Summary Judgment and to Dismiss and City's Motion to Strike (S.D.Ind. Dec. 15, 1998) (Hamilton, J.) (same). As this judge wrote in Craig v. Christ, recognizing such an implied right to sue for damages under the Indiana Constitution would work a dramatic change in Indiana law, in the relationships between citizens and their state and local governments, and between those governments and their employees. If such a step is to be taken, it will need to be taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law. To the extent that Schreiber seeks damages under the Indiana Constitution, defendants' motion is granted.
Schreiber cannot save his state constitutional claims, in this court at least, by limiting his prayer for relief to injunctive relief. When seeking injunctive relief under the Indiana Constitution, Schreiber is necessarily suing the defendants in their official capacities as state officials. The Eleventh Amendment forbids federal courts from exercising jurisdiction over claims for injunctive relief against state officials based on state law. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 102, 106 (1984) ("a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief"); see also Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000) ("a federal court can raise an Eleventh Amendment defense on its own initiative"). Thus, to the extent that Schreiber is seeking injunctive relief under the Indiana Constitution, the defendants' motion to dismiss is granted.
III. Absolute Quasi-Judicial Immunity
Finally, defendant Renner argues that he is entitled to quasi-judicial immunity because he performed quasi-judicial functions in his role as hearing officer at Schreiber's pre-disciplinary hearing.
Under federal law and Indiana law, officials who perform quasi-judicial functions are entitled to absolute judicial immunity. See, e.g., Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 1999) (federal law); H.B. v. State of Indiana-Elkhart Div. of Family Children, 713 N.E.2d 300, 302 (Ind.App. 1999) (state law: "Absolute judicial immunity therefore extends to persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune."); see also Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 435 (Ind.App. 1996) ("If the acts do not involve the judicial process so that a fear exists that freedom of judicial decision-making may be stifled, the official should not be free from suit."). In deciding whether an official is entitled to judicial immunity, Indiana courts employ the same functional approach used by federal courts. See, e.g., H.B., 713 N.E.2d at 302 ("court looks to the nature of the function performed, not the identity of the actor who performed it"), citing Forrester v. White, 484 U.S. 219, 224 (1988).
The test is whether the officer, "although not a member of a court, perform[s] duties functionally comparable to those of a judicial officer." Crenshaw v. Baynerd, 180 F.3d at 868; see also Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 522 (7th Cir. 2001) (likening hearing officer of the Illinois State Board of Elections to magistrate judge; granting absolute immunity to board members); Wilson v. Kelkhoff, 86 F.3d 1438, 1443-45 (7th Cir. 1996) (granting absolute immunity to members of a prison review board who revoked a plaintiff's supervised release after they held a hearing to evaluate whether revocation was proper); see also Thompson v. Duke, 882 F.2d 1180, 1184-85 (7th Cir. 1989) ("duty to schedule and conduct a parole violation hearing . . . is obviously an integral judicial (or quasi-judicial) function subject to absolute immunity"); Mother Goose Nursery Schools, Inc. v. Sendak, 770 F.2d 668, 670-75 (7th Cir. 1985) (Indiana attorney general entitled to absolute immunity when acting in an adjudicatory function by determining whether to approve a contract under a statutory provision that required him to ensure the contract's legality); Reed v. Village of Shorewood, 704 F.2d 943, 951-52 (7th Cir. 1983) (local liquor control commissioner acted in a judicial capacity when he revoked a liquor license, entitling him to absolute immunity). "[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. 478, 486 (1991).
In H.B., the Indiana Court of Appeals affirmed a district court's grant of common law judicial immunity to a probation officer. The court noted that the "case workers were acting as an arm of the juvenile court judge by implementing the court's order, and ultimately recommending that the Children be returned to Mother." H.B., 713 N.E.2d at 303. Thus, it was the intimate association between the acts that allegedly gave rise to liability and the judicial proceeding that entitled the defendant to immunity from suit. Id.
Under Burns, defendant Renner has the burden of demonstrating that absolute immunity is justified for this particular function. Burns, 500 U.S. at 486. Renner has not directed the court to any specific facts or additional case law suggesting that, as a hearing officer, he is entitled to quasi-judicial immunity for his actions in approving the firing of plaintiff Schreiber. Acting in a decision-making capacity in an employment dispute does not automatically entitle Renner to absolute immunity. Pre-deprivation hearings for public employees that are held to satisfy federal due process standards do not necessarily require the sorts of procedural formalities that are typically associated with judicial and quasi-judicial decisions, and with absolute immunity. Cf. Crenshaw v. Baynerd, 180 F.3d at 868 (relying on statutory procedures to find that members of Indiana Civil Rights Commission were entitled to absolute quasi-judicial immunity in rejecting plaintiff's complaint). Therefore, defendant Renner's motion to dismiss based on a grant of absolute quasi-judicial immunity is denied, but without prejudice to further consideration on a more complete record.
Conclusion
For the reasons discussed above, all of Schreiber's state law claims are dismissed for failure to state a claim upon which relief can be granted. To the extent that defendants have been sued in their official capacities under Section 1983, those claims are dismissed, as well. Defendants' motion to dismiss is denied in all other respects.
So ordered.