Burton v. City of Franklin

THOMAS W. BURTON, Plaintiff,

v.THE CITY OF FRANKLIN, MAYOR FRED L. PARIS, Individually , FRANKLIN POLICE CHIEF STAN LYNN, Individually, BYRAN BURTON, Individually, and RYAN MEARS, Individually, Defendants.

1:11-cv-00267-JMS-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

Dated:July 18, 2011

ORDER

Plaintiff Thomas Burton brings this complaint against the City of Franklin, Mayor Fred L. Paris, Franklin Police Chief Stan Lynn, Bryan Burton, and Ryan Mears (collectively, "Defendants") pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants violated his rights under the Fourth, Fifth and Fourteenth Amendments during his arrest and incarceration pending trial. Presently before the Court are two motions to dismiss, independently filed by Defendant Bryan Burton and Defendant Ryan Mears. [Dkt. 20; dkt. 23.]

I.STANDARD OF REVIEW

The Federal Rules of Civil Procedure impose only a notice-pleading requirement for complaints. Fed. R. Civ. Pro. 8. Thus, "[s]pecific facts are not necessary; the [plaintiff] need only 'give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544 (2007) (alteration omitted)) (per curium). Nonetheless, "a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled."Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) (synthesizing Erickson and Twombly). In that circumstance, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is proper. A motion filed under that rule asks whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. 544). For the purposes of that rule, the Court will ignore legally conclusory allegations. Id. at 1949-50 ("Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation." (quotation omitted)). The Court will, however, give the complaint the benefit of reasonable inferences from all non-conclusory allegations. See id.

Although the Federal Rules do not require plaintiffs to plead legal theories in their complaints, Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011), they do provide that "[i]f doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count." Fed. R. Civ. P. 10(b). In the instant case, Plaintiff's Complaint lacks the clarity implied by Rule 10. It is nothing more than a recitation of facts with several constitutional claims vaguely referenced at the end. [Dkt. 1 at \ 34 ("The actions of Mayor Paris, Chief Lynn, [D]etective Burton, and [D]etective Mears toward[] Mr. Burton constitute violations of his rights to due process of law, among other constitutional protections, in contravention of the Fourth, Fifth and Fourteenth Amendments . . . .").] The Complaint gives neither the Court nor the Defendants any indication as to which alleged actions correspond with which claims—particularly problematic in a case with multiple Defendants, each allegedly responsible for different transactions or occurrences.

Furthermore, in addition to failing to amend his Complaint under Rule 15, Plaintiff wholly failed to respond to Defendants' respective motions to dismiss. It should go without saying that the Seventh Circuit adheres to the longstanding rule that a litigant waives an argument by failing to make it. See, e.g., Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480 (7th Cir. 2010). Courts apply that rule where a party fails to develop arguments related to a discrete issue, as well as "where a litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss." Alito v. Town of Lisbon, F.3d —, 2011 WL 2942360 (7th Cir. 2011); see also Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.2005) (noting that a complaint may be compliant with the notice pleading requirements of Rule 8(a)(2), yet be subject to dismissal where a plaintiff does not file a brief supporting the legal adequacy of the complaint). In short, "[w]hen presented with a motion to dismiss, the non-moving party must proffer some legal basis to support his cause of action." County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 818 (7th Cir. 2006). For that reason, if a plaintiff does not respond, and the Court is "given plausible reasons for dismissing a complaint, [it is] not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants' reasoning." Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1042 (7th Cir. 1999).

Consistent with this longstanding authority, the Court interprets Plaintiff's failure to respond as waiver of his arguments with respect to Defendants' charges concerning the deficiency of his Complaint. Alito, 2011 WL 2942360 at *5. Where Defendants' arguments are plausible, then, the Court will accept them as true for the purposes of these motions.

II.FACTS PLED IN THE COMPLAINT

Defendants Burton and Mears are detectives with the Franklin Police Department; on February 21, 2009, at their request, a confidential informant wearing concealed audio/videoequipment entered the residence of Plaintiff Thomas Burton to make a controlled drug buy. [Dkt. 1 at ¶ 11.] When she entered the residence, the informant was in possession of unopened packages of Sudafed. [Id. at ¶ 12.] When she left Plaintiff’s residence at 6:00am the next day, she did not have the Sudafed, and instead delivered two packages of methamphetamine to the detectives. [Id. at ¶ 13.] Detectives Burton and Mears took possession of the methamphetamine, but did not test the substance, weigh it, or deliver it to the property room of the police department. [Id. at ¶ 14.]

The next day, Detectives Burton and Mears (along with members of the Johnson County Prosecutor's Office) again gave the informant Sudafed and dropped her off at Plaintiff’s residence. [Id. at ¶ 16.] The informant entered the residence with Sudafed and left shortly thereafter without it. [Id. at ¶ 17.]

"Based upon false information provided by detectives Burton and Mears, a search warrant was issued on February 22, 2009 for [Plaintiff]'s residence." [Id. at ¶ 17.]

At approximately 10:30 pm, Detectives Burton and Mears, Police Chief Lynn, and members of the Johnson County Prosecutor's Office executed a search warrant at Plaintiff’s residence. [Id. at ¶ 18.] During the search, Plaintiff was arrested. [Id.]

Despite the fact that the substance with which Plaintiff was arrested had not been tested, weighed, or placed in evidence, but was instead "taken to, and kept in, an apartment which was controlled by Detectives Burton and Mears," Plaintiff was charged with one count of manufacturing and one count of delivery of more than three grams of methamphetamine, both Class A Felonies. [Id. at ¶ 19.] Plaintiff was held in the Johnson County Jail on a bond of $100,000. [Id. at ¶ 20.] Plaintiff was unable to bond out and, consequently, remained incarcerated. [Id. at ¶ 22] On March 3, 2009, the drugs were delivered to the police department property room, but were not tested or weighed. [Id. at ¶ 21.] On November 12, 2009, the drugs were sent to the Indiana State Police laboratory for testing and weighing for the first time. [Id. at ¶ 23.] The State Police reported that the drugs had a total weight of 2.23 grams, .77 grams less than the minimum threshold for an A Felony. [Id. at ¶ 24.]

On April 19, 2010, the prosecuting attorney reduced both charges against plaintiff to Class B Felonies, due to the weight of the drugs. [Id. at ¶ 25.] Two months after the charges were reduced to Class B Felonies, Plaintiff requested, and was granted, a bond reduction to $20,000. [Id. at ¶ 25.] Plaintiff immediately posted bond and was released. [Id. at ¶26.]

In early 2010, Detective Burton became the subject of a police investigation related to alleged illegal and inappropriate conduct, including official misconduct, drinking on duty, ghost employment, providing alcohol to minors and fondling police informants, for which he has been criminally informed and/or indicted. [Id. at ¶ 27.]

On May 13, 2010, the informant filed a civil lawsuit against Detectives Burton and Mears alleging exhibitionism, fondling, battery with a sex toy, uninvited sexual touching and gender based harassment, some of which occurred during the investigation of Plaintiff. [Id. at ¶ 29.] In early 2011, on the state's motion, charges against Plaintiff and approximately fifty (50) unrelated defendants were dismissed. [Id. ¶ 30.]

III.DISCUSSION

Plaintiff brings his claims under 28 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). The first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S.386, 394 (1989). In the instant case, Plaintiff alleges that Defendants' conduct violated his rights under the Fourth, Fifth and Fourteenth Amendments.

Section 1983 requires not only that a plaintiff (1) had a constitutionally protected right and (2) that he was deprived of that right in violation of the Constitution, but also (3) that the defendant intentionally caused that deprivation, and (4) the defendant acted under color of state law. McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993). Accordingly, liability under § 1983 can be based only on a finding that conduct causing a constitutional deprivation occurred at the defendant's direction or with his...