Terry v. Calhoun

RICKY D. TERRY, Plaintiff, v. JENNIFER CALHOUN, DWIGHT MILLER, SAMANTHA HAMMOND,LANCE WATERS, ROB WILEY, and AUSTIN HOLLABAUGH Defendants.

CAUSE NO.: 1:17-CV-440-TLS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

December 3, 2018

OPINION AND ORDER

This matter is before the Court on the Defendants', Jennifer Calhoun and Austin Hollabaugh [ECF No. 56], Dwight Miller, Lance Waters, and Rob Wiley [ECF No. 63], and Samantha Hammond [ECF No. 65], Motions to Dismiss. Defendants Calhoun, Hollabaugh, Miller, Waters, and Wiley move to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant Hammond moves to dismiss for failure to state a claim pursuant to Rule 12(b)(6). For the reasons stated below, the Court GRANTS the Defendants' Motions to Dismiss and DISMISSES the Plaintiff's claims WITH PREJUDICE.

BACKGROUND

Plaintiff Ricky D. Terry, proceeding pro se, has filed multiple complaints regarding an August 2015 interrogation and arrest. The Plaintiff first filed a pro se complaint on October 20, 2017 [ECF No. 1], then filed his First Amended Complaint on February 23, 2018 [ECF No. 12], a Second Amended Complaint on June 15, 2018 [ECF No. 35], and a Third Amended Complaint on July 24, 2018 [ECF No. 45]. Across the Plaintiff's complaints, the central allegations remain the same. The Plaintiff states that Defendant Detective Lance Waters arrested him in late August 2015, accused him of molesting his daughter, and initiated "a Child in Need of Services" or "C.H.I.N.S" proceeding. (Pl.'s Third Am. Compl., at ¶¶ 1, 3, 4). The Plaintiff claims that Defendant Detective Dwight Miller attempted to have his daughter state that he molested her. (Id., ¶ 2.) The Plaintiff alleges that Defendant Department of Children's Services employee, Jennifer Calhoun, was present while his daughter was coerced and intimidated into making an allegation. (Id., ¶ 4.) The Plaintiff claims that Defendant Calhoun withheld documents indicating that his daughter recanted her allegations. (Id.) The Plaintiff states that Defendant Probation Officer Samantha Hammond was also in the room while his daughter was coerced and intimidated into making an allegation against the Plaintiff. (Id., ¶ 5.) The Plaintiff alleges that Defendants Chief of Kendallville Police Department Rob Wiley and Director of the Department of Child Services of Noble County Austin Hollabaugh, negligently supervised Defendants Miller and Calhoun, respectively. (Id., ¶¶ 6-7.) The Plaintiff requests damages in the amount of 1.5 million dollars. (Id., at 6.)

The Defendants in this action have all filed Motions to Dismiss. Defendants Calhoun and Hollabaugh and Defendants Miller, Waters, and Wiley filed Motions to Dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6) on August 24 and August 29, 2018, respectively. Defendant Hammond filed a Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) on August 30, 2018. Among other arguments, the Defendants all argue that the Plaintiff's claims are time-barred. (See Defs. Calhoun and Hollabaugh's Mem. in Supp. of Mot. to Dismiss at 5-7, ECF No. 57; Defs. Miller,Waters, and Wiley's Mem. in Supp. of Mot. to Dismiss at 6, ECF No. 64; and Def. Hammond's Mem. in Supp. of Mot. to Dismiss at 3-6, ECF No. 66.)

The Plaintiff filed his oppositions to the Defendants' Motions to Dismiss on September 28, 2018 [ECF No. 75-77]. In each of his responses, the Plaintiff argues that there is no statute of limitations applicable to § 1983 actions. (See, e.g., Pl.'s Opp. to Def. Hammond's Mot to Dismiss at 7.) The Plaintiff also argues that, regardless, the statute of limitations should be tolled because he filed a notice of a tort claim with the Indiana State Attorney General in August 2017 and the Defendants engaged in fraudulent concealment of evidence. (Pl.'s Opp. to Def. Hammond's Mot. to Dismiss at 5; Pl.'s Opp. to Defs. Calhoun and Hollabaugh's Mot. to Dismiss at 10-11; Pl.'s Opp. to Defs. Miller, Waters, and Wiley's Mot. to Dismiss at 8(A-B).)

The Defendants have all filed responses to the Plaintiff's opposition to their motions to dismiss [ECF Nos. 78-79, 81]. Defendant Hammond filed her response on October 4, 2018, Defendants Calhoun and Hollabaugh filed their response on October 9, 2018, and Defendants Miller, Waters, and Wiley filed their response on October 17, 2018. The Defendants all contend that the Plaintiff's claims are time-barred and that his claims of fraudulent concealment of evidence do not toll the applicable statute of limitations. (Def. Hammond's Resp. to Pl.'s Opp. to Mot. to Dismiss at 3-4; Defs. Calhoun and Hollabaugh's Resp. to Pl.'s Opp. to Mot. to Dismiss at 5-6; Defs. Miller, Waters, and Wiley's Resp. to Pl.'s Opp to Mot. to Dismiss at 3-4.)

LEGAL STANDARD

Rule 12(b)(1) provides that a party may assert the defense of lack of subject-matter jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). "Subject-matter jurisdiction is the first question in every case, and if the court concludes that it lacks jurisdiction it must proceed no further." Illinois v. City of Chi., 137 F.3d 474, 478 (7th Cir. 1998). When considering a motion to dismissfor lack of subject matter jurisdiction, a court must accept as true all well-pleaded allegations and draw all reasonable inferences in favor of the plaintiff. Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003).

Rule 12(b)(6) "challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). The Court presumes that all well-pleaded allegations are true, views these well-pleaded allegations in the light most favorable to the Plaintiff, and accepts as true all reasonable inferences that may be drawn from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608. The Complaint need not contain detailed facts, but surviving a Rule 12(b)(6) motion "requires more than labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "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, 678 (2009) (citing Twombly, 550 U.S. at 556).

ANALYSIS

"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). The Court understands that the Plaintiff's Complaint alleges a claim pursuant to 42 U.S.C. § 1983 resulting from his interrogation and arrest in August 2015. To state a claim under § 1983, the Plaintiff must allege (1) a deprivation of a right secured by the Constitution or laws of the United States; (2) by a person acting under color of state law. Windle v. City of Marion, Ind., 321 F.3d 658, 661 (7th Cir. 2003). The Plaintiff appears to allege that the Defendants, state actors,violated his constitutional rights when he was arrested and interrogated in August 2015. (Pl.'s Opp. to Defs. Miller, Waters, and Wiley's Mot to Dismiss at 7.)

The Plaintiff asserts that an action under 42 U.S.C. § 1983 has no statute of limitations and his complaint is timely (Id., at 1.) While it is true that there is no federal statute of limitations for § 1983 actions, courts must apply the most appropriate statute of limitations. Lovett v. Seniff, 277 F. Supp. 2d 896, 897 (N.D. Ind. 2003). Section 1983 claims are considered as personal injury claims in determining the applicable state statute of limitations. Campbell v. Forest Preserve Dist. of Cook Cnty., Ill., 752 F.3d 665, 667-68; see also, Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) ("When reviewing a Rule 12(b)(6) [motion to dismiss] state law claims based on a statute of limitations, we apply state law regarding the statute of limitations and 'any rules that are an integral part of the statute of limitations, such as tolling and equitable estoppel." (quoting Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir.2010)).¹ The Indiana statute of limitations applicable to § 1983 actions is the two-year period found in Indiana Code 34-11-2-4. See Campbell v. Chappelow, 95 F.3d 576, 580 (7th Cir. 1996). Section 34-11-2-4 requires an action to "be commenced within two (2) years after the cause of the action accrues." Ind. Code § 34-11-2-4.

Tort claims accrue and the statute of limitations begins to run when the plaintiff discovers, or in the exercise of ordinary diligence, could discover, that he has sustained an injurycaused by another person's tortious act. Kissinger v. Fort Wayne Cmty. Sch., 293 F. Supp. 3d 796, 811 (N.D. Ind. 2018) (citing Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind. 1992)). The Plaintiff's own pleadings indicate that he became aware of his injury in August 2015, when he was first arrested and interrogated. (Pl.'s Third Am. Compl. at ¶¶ 1-5.) The Defendants argue that the Plaintiff's claim is therefore time-barred, as the Plaintiff first filed his original complaint on October 20, 2017.

The Seventh Circuit holds that "limitations statutes setting deadlines for bringing suit in federal court are not jurisdictional." Miller v. Fed. Deposit Ins. Corp., 738 F.3d 836, 843 (7th Cir. 2013). The appropriate mechanism to dispose of a case on statute of limitations grounds is Rule 12(b)(6). See Vonderohe v. B & S of Fort Wayne, Inc., 36 F. Supp. 2d 1079, 1081 (N.D. Ind. 1999). Accordingly, the Court will not consider the Defendants...