Opinion
3:21-CV-855 JD
03-30-2023
ADAM BRAY, Plaintiff, v. KYLE SHIPARSKI, et al., Defendants.
OPINION AND ORDER
JON E. DEGUILIO CHIEF JUDGE
Now before the Court is a motion for partial judgment on the pleadings by Defendants Kyle Shiparski, Willie Henderson, and Adam Brinkman (collectively, the “Officer Defendants”), as well as the Michigan City Police Department and Michigan City. (DE 23.) In this motion, Defendants argue that the intentional infliction of emotional distress claims must be dismissed as to the Officer Defendants and Michigan City because those defendants are immune under the Indiana Tort Claims Act. Defendants also argue that the battery claim brought against the Officer Defendants is barred by the ITCA. Lastly, the Defendants argue that the Michigan City Police Department should be dismissed as a party because it is not a suable entity under Indiana law.
Plaintiff did not file a response opposing this motion, so it is unopposed. Because Plaintiff has effectively abandoned these claims by not responding, the Court will grant the motion for judgment on the pleadings. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 n. 1, 721 (7th Cir. 2011) (forfeiture occurs where the “litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument [in a motion to dismiss]-as the [plaintiffs] have done here-results in waiver.”); N.D. Ind. L.R. 7-1(d)(5) (“The court may rule on a motion summarily if an opposing party does not file a response before the deadline.”).
Accordingly, the motion for judgment on the pleadings is GRANTED. (DE 23.) The battery claim and IIED claim against the Officer Defendants is DISMISSED. To the extent Plaintiff brings an IIED claim against Michigan City, it is DISMISSED.Finally, the Court DISMISSES the claims against the Michigan City Police Department, which is no longer a party to this action. All other claims continue.
The Complaint only appears to bring an IIED claim against the Officer Defendants. (DE 4 at 4.) The Complaint brings a claim for respondeat superior against Michigan City and the Michigan City Police Department. Defendants do not appear to have moved to dismiss this claim in its entirety, but only to the extent it is based on an IIED claim. Therefore, to the extent respondeat superior is based on another theory (such as battery), the claim proceeds against Michigan City.
SO ORDERED.