# Palta v. Marshall County Indiana Sheriff's Department

> District Court, N.D. Indiana · September 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10158361

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** September 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10158361

## How later opinions describe it (automated extraction)

- holding that dismissal is appropriate when the “claim of immunity under the Indiana Tort Claims Act has gone unanswered”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

HARINDER PALTA and ASHA )
PALTA, on their own behalf and as )
guardians of their adult son, Rahul Palta, )
and RAHUL PALTA, )
)
Plaintiffs, )
)
v. ) Case No. 3:18-CV-815-JD-MGG
)
MARSHALL COUNTY INDIANA )
SHERIFF’S DEPARTMENT, INDIANA )
STATE POLICE, JONATHAN )
BRYANT, NICK LAFFOON, JOE )
GIORDANO, ANTHONY BRAGG, and )
JIM STRONG, )
)
Defendants. )
OPINION AND ORDER
Plaintiffs bring suit against the Indiana State Police and Jim Strong (State Defendants)
and the Marshall County Indiana Sheriff’s Department, Jonathan Bryant, Nick Laffoon, Joe
Giordano, and Anthony Bragg (Marshall County Defendants) based on the motor vehicle stop
and arrest of Rahul Palta on September 14, 2017. Plaintiffs’ amended complaint alleges federal
constitutional claims of race discrimination and excessive force, state law claims of assault and
battery, state law respondeat superior, and Monell liability. The State Defendants filed a motion
to dismiss all claims. The Marshall County Defendants filed a partial motion to dismiss, seeking
dismissal of all claims except for the § 1983 Fourth Amendment excessive force claim against
the individual county officers in Count III. Both motions are brought under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim.
The Court grants in part and denies in part both motions, denying dismissal of the Fourth
Amendment excessive force claim brought under 42 U.S.C. § 1983 in Count III against State
Trooper Jim Strong and denying dismissal of the respondeat superior claim against the Marshall
County Sheriff’s Department in Count V.
I. FACTUAL BACKGROUND

The following facts are taken from the allegations of the amended complaint. Defendant
Jim Strong is an employee and officer of the Indiana State Police. Id. ¶ 13. Defendants Jonathan
Bryant, Nick Laffoon, Joe Giordano, and Anthony Bragg are employees and merit officers of the
Marshall County Sheriff’s Department. Id. ¶ 9–12. Collectively, the officers are referred to
throughout the amended complaint as “Defendants,” “above captioned officers,” “above
referenced police officers,” “Defendant officers,” or “officers.”
Harinder Palta and Asha Palta are the parents and legal guardians of their adult son,
Rahul Palta. Am. Compl. ¶¶ 4–5, ECF No. 35. Rahul Palta has a documented history of mental
illness. Id. ¶ 16. His diagnoses and symptoms have included depression, paranoid thoughts,
hallucinations, paranoid delusions, auditory hallucinations, disorganized thoughts, inappropriate

thought processes, and bizarre agitation. Id. Rahul Palta was “incapacitated due to mental illness
on September 14, 2017, [and] has been so situated until present day.” Id. ¶ 17. On September 14,
2017, Rahul Palta was living at his parents’ home. Id. ¶ 18. Rahul Palta is of South Asian
descent. Id. ¶ 15.
On September 14, 2017, Rahul Palta became agitated due to the televised reporting of
hurricanes Irma and Harvey. Id. ¶ 19. In an agitated state, he left his parents’ home in Carmel,
Indiana, driving north in his vehicle on U.S. Highway 31 to U.S. Highway 30 in Marshall
County, Indiana. Id. ¶¶ 20–21. He was purportedly driving in excess of 70 mph exclusively in
the left lane. Id. ¶ 22. Police stopped his vehicle using a “rolling roadblock” technique. Id. ¶ 23.
Once the vehicle was stopped, “Defendants pulled Rahul from the car and, without cause, threw
him on the ground, beat and ‘tazered’ him, causing bodily injury.” Id. ¶ 24. Plaintiffs allege that
all the Defendants acted intentionally, maliciously, and with callous disregard for the rights
guaranteed Rahul Palta by state and federal law. Id. ¶ 25. Rahul Palta alleges that these actions
exacerbated his mental health and that his parents have incurred additional expenses due to his

deteriorated mental health. Id. ¶ 26.
On October 4, 2018, Plaintiffs filed this suit pursuant to 42 U.S.C. § 1983 against the
Marshall County Defendants and the State Defendants. Plaintiffs subsequently filed an amended
complaint, asserting claims of (1) race discrimination pursuant to 42 U.S.C. § 1981 and pursuant
to 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth Amendments (Count I); (2) a
substantive due process violation based on race discrimination and excessive force pursuant to
42 U.S.C. § 1983 for violations of the Fifth and Fourteenth Amendments (Count II);
(3) excessive force pursuant to 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth
Amendments (Count III); (4) assault and battery under Indiana state law (Count IV);

(5) respondeat superior/vicarious liability under Indiana state law (Count V); and (6) and Monell
liability against the Marshall County Sheriff’s Department and the Indiana State Police for the
federal constitutional violations (Count VI).
The State Defendants and the Marshall County Defendants each filed a motion to
dismiss. Plaintiffs filed a consolidated response to both motions, and each set of Defendants filed
a separate reply brief. The motions are ripe for ruling.
II. STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted under Federal Rule of Civil Procedure 12(b)(6), the Court construes the complaint in the
light most favorable to the plaintiffs, accepts the factual allegations as true, and draws all
reasonable inferences in the plaintiffs’ favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143,
1146 (7th Cir. 2010). A complaint must contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement must
contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its
face, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and raise a right to relief above the speculative

level, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, a plaintiff’s claim need
only be plausible, not probable. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir. 2012). Evaluating whether a plaintiff’s claim is sufficiently plausible to survive a
motion to dismiss is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
III. DISCUSSION
Plaintiffs allege that Rahul Palta’s rights were violated during the September 14, 2017
traffic stop when the officers “pulled [him] from the car” and then, without cause, “threw him on
the ground, beat and ‘tazered’ him, causing bodily injury.” Am. Compl. ¶ 24. In their motions

brought under Rule 12(b)(6), Defendants assert various bases for dismissal of the amended
complaint, except that the Marshall County Defendants do not seek dismissal of the claim in
Count III for excessive force by the individual county officers in violation of the Fourth
Amendment. Plaintiffs’ response brief does not address most of the arguments raised by
Defendants, as noted throughout this opinion where applicable. The longstanding “rule that a
person waives an argument by failing to make it before the district court” applies “where a party
fails to develop arguments related to a discrete issue” and “where a litigant effectively abandons
the litigation by not responding to alleged deficiencies in a motion to dismiss.” Alioto v. Town of
Lisbon, 651 F.3d 715, 721 (7th Cir. 2011). The Court considers the arguments raised in the
motions to dismiss in turn.
A. Indiana State Police and Trooper Jim Strong in his Official Capacity
1. Federal Claims—42 U.S.C. § 1981 and 42 U.S.C. § 1983 (Counts I, II, III, VI)
As an initial matter, Plaintiffs bring their claim of race discrimination in Count I under

both 42 U.S.C. § 1981 and 42 U.S.C. § 1983. However, Section 1981 does not provide a cause of
action against state actors, and “§ 1983 remains the exclusive remedy for violations of § 1981
committed by state actors.” Campbell v. Forest Preserve Dist. of Cook Cty., Ill., 752 F.3d 665,
671 (7th Cir. 2014). Thus, Plaintiffs’ § 1981 claim must be analyzed through § 1983.
The Indiana State Police seeks dismissal of Plaintiffs’ constitutional claims brought under
§ 1983 in Counts I, II, III, and VI on the basis that the Indiana State Police is not a “person”
within the meaning of § 1983. Section 1983 provides a cause of action against a “person” who
violates a plaintiff’s rights, but the Supreme Court has held that states and their agencies do not
qualify as “persons” in this context. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

see also Sebesta v. Davis, 878 F.3d 226, 231 (7th Cir. 2017). The Indiana State Police is an
agency of the State of Indiana. See Endres v. Ind. State Police, 349 F.3d 922, 927 (7th Cir. 2003)
(“The Indiana State Police, as a unit of state government, is not a ‘person’ as § 1983 uses that
term and therefore is not amenable to a suit for damages under that statute.”). Therefore, the
Indiana State Police cannot be sued for money damages under § 1983, and the § 1983 claims are
dismissed with prejudice. In addition, any official capacity claims against Trooper Strong under
§ 1983 are likewise dismissed with prejudice because state officials acting in their official
capacities are not “persons” who can be sued for money damages under § 1983. See Will, 491
U.S. at 71; Endres, 349 F.3d at 927.
In their response brief, Plaintiffs argue that, under the doctrine of Ex parte Young, 209
U.S. 123 (1908), claims for prospective injunctive relief for violations of federal law against
state actors in their official capacities are not barred and that Plaintiffs have asserted a valid
claim for injunctive relief in the amended complaint. The prayer for relief asks for a judgment
against Defendants “[f]inding that Defendants, and each of them, committed acts that constituted

violations of the Fourth, Fifth, and Fourteen Amendments to the United States Constitution,
actionable under 42 U.S.C. § 1983” and “[f]or an order mandating procedural changes and
additional training for the Department regarding the proper method to apprehend suspects.” Am.
Compl. 14.
The Ex parte Young doctrine ‘allows private parties to sue individual state officials for
prospective relief to enjoin ongoing violations of federal law.’” Council 31 of the Am. Fed’n of
State, Cty., & Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012) (quoting MCI
Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 337 (7th Cir. 2000)). “In determining
whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need

only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation
of federal law and seeks relief properly characterized as prospective.’” Verizon Md. Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); see also McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1051
(7th Cir. 2013). And, when the relief sought “is tantamount to an award of damages for a past
violation of federal law, even though styled as something else,” such a claim is impermissible.
Papasan v. Allain, 478 U.S. 265, 278 (1986).
First, the doctrine of Ex parte Young has “no application in suits against the States and
their agencies, which are barred regardless of the relief sought[.]” Puerto Rico Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citing Cory v. White, 457 U.S.
85, 89 (1982)). Thus, dismissal of the § 1983 claims against the Indiana State Police is proper.
Second, as argued by the State Defendants, notwithstanding their request for injunctive
relief, Plaintiffs have not alleged an “ongoing violation of federal law.” Plaintiffs themselves
recognize that, to avoid the Eleventh Amendment bar to suit against Trooper Strong in his

official capacity, they must allege an ongoing violation of federal law. A straightforward inquiry
into the allegations of the amended complaint demonstrates that Plaintiffs are only challenging
the force used by the officers during Rahul Palta’s September 14, 2017 arrest. See, e.g.,
McDonough Assocs., 722 F.3d at 1051. In their response brief, Plaintiffs argue that, to their
“knowledge, [the State Actors] continue to make detentions and use force pursuant to the same
guidelines that were in existence at the time of Rahul Palta’s arrest, and that the same violations
of due process will occur.” Mem. in Supp. of Pls.’ Opp’n to the Defs.’ Mots. to Dismiss, 8–9,
ECF No. 56. But Plaintiffs cannot amend their complaint in their brief in response to the motions
to dismiss. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d

436, 448 (7th Cir. 2011). Plaintiffs’ amended complaint does not allege that they are suffering
from an ongoing deprivation of federal law or that they are in danger of sustaining a direct
injury.
Thus, the Ex parte Young doctrine is inapplicable. The Court grants the motion to dismiss
the claims for money damages in Counts I, II, III, and VI against the Indiana State Police and
against Trooper Jim Strong in his official capacity and dismisses the claims with prejudice. To
the extent that Plaintiffs allege a claim for injunctive relief, the Court dismisses the claim without
prejudice.
2. State Law Claims—Counts IV and V
The Indiana State Police argue that the Eleventh Amendment bars Plaintiffs’ pendant
state law claims against it and Trooper Strong in his official capacity brought in federal court.
Plaintiffs do not respond to this argument. Indeed, the Supreme Court has held that the Eleventh
Amendment bars federal courts from awarding relief, under state law, against a state or its

agencies. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103–07 (1984) (reasoning
that “it is difficult to think of a greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state law”); see also Tucker v.
Williams, 682 F.3d 654, 658 (7th Cir. 2017) (“State agencies are treated the same as states for
purposes of the Eleventh Amendment.”); Jones v. Indiana, 533 F. App’x 672, 673 (7th Cir.
2013). Accordingly, the Court grants the motion and dismisses without prejudice the pendant
state law claims brought in Counts IV and V against the Indiana State Police and Trooper Jim
Strong in his official capacity.
B. Trooper Jim Strong

Trooper Jim Strong argues that Plaintiffs have failed to state a claim against him in his
individual capacity on both the § 1983 claims and the Indiana state law tort claims.
1. Federal Claims—42 U.S.C. § 1981 and 42 U.S.C. § 1983 (Counts I and III)
As to the § 1983 claims, including any claim under § 1981, Trooper Strong argues that
the amended complaint does not allege that he was personally involved in the alleged
constitutional violations brought in Counts I and III for race discrimination and excessive force.1
“Individual liability under § 1983 requires ‘personal involvement in the alleged constitutional
deprivation.’” Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir. 2010) (quoting Palmer v. Marion

1 The substantive due process claim in Count II is dismissed against all defendants, as explained in Part C.2 below.
Cty., 327 F.3d 588, 594 (7th Cir. 2003)). “[A] plaintiff must plead that each Government-official
defendant through the official’s own individual actions, has violated the Constitution.” Iqbal,
566 U.S at 676.
Trooper Strong notes that he is identified by name only three times in the amended
complaint, with the first time in the introduction. Am. Compl. p. 2. The second time is in the

“Parties” section when he is identified as an employee and officer of the Indiana State Police. Id.
¶ 13. And, the third time is the allegation in the “Parties” section that “Defendants Jonathan
Bryan, Nick Laffoon, Joe Giordano, Anthony Bragg and Jim Strong are collectively referred to
as ‘above captioned officers.’” Id. ¶ 14. Trooper Strong then argues that there are no allegations
naming him as participating in the alleged constitutional violations.
Nevertheless, the amended complaint groups all of the named officer defendants together
in the use of force allegations: “Upon stopping Rahul Palta’s car, the Defendants pulled Rahul
from the car and without cause, threw him on the ground, beat and ‘tazered’ him, causing him
bodily injury.”; “The Defendant officers who did not physically participate in the attack on

Rahul Palta nonetheless acted in violation of the Plaintiffs[’] Fourth Amendment rights through
their deliberate indifference to the excessive force.” Id. ¶¶ 24, 52.
Although group pleading is not ideal, it is not prohibited at the dismissal stage. See Sibley
v. Dart, No. 17-CV-6298, 2019 WL 670270, at *4 (N.D. Ill. Feb. 19, 2019) (permitting “group
pleading” against 21 individual defendants based on their conduct following an evacuation in a
prison, finding that the general allegations that the defendants forced the plaintiff and others into
a smoke-filled tier were not robust but were sufficient because the plaintiff alleged that each
defendant participated in the conduct); Karney v. City of Naperville, No. 15 C 4608, 2016 WL
6082354, at *6 (N.D. Ill. Oct. 18, 2016) (denying a motion to dismiss based on group pleading
when only two police officer defendants were alleged to have participated in the alleged
constitutional violation (citing Gonzalez v. Babasa, No. 02 C 6857, 2003 WL 21196245, at *2
(N.D. Ill. May 19, 2003))); Vandenburgh v. Bannockburn Police Officer Robert Ogden, No. 15 C
6191, 2016 WL 403663, at *5 (N.D. Ill. Feb. 3, 2016) (“While VanDenburgh will ultimately
have to demonstrate that each individual Defendant Officer was personally responsible for her

injuries, she is not required to do so at the pleading stage without discovery.” (citing Kuri v. City
of Chicago, No. 13 C 1653, 2014 WL 114283, at *7 (N.D. Ill. Jan. 10, 2014); Hyung Seok Koh v.
Graf, No. 11-CV-2605, 2013 WL 5348326, at *5 (N.D. Ill. Sept. 24, 2013))); Sanders v. City of
Chicago Heights, No. 13 C 0221, 2014 WL 5801181, at *3 (N.D. Ill. Nov. 7, 2014).
This is not a situation in which a plaintiff has alleged that a group of officers engaged in a
constitutional violation without naming the specific officers involved. See, e.g., Hallows v.
Madison Cty. Jail, No. 18-CV-881, 2018 WL 2118082, *3 (S.D. Ill. May 8, 2018) (finding that
“Medical Staff” labeled as “Unknown Party” was not a “person” subject to suit under § 1983);
Liera v. City of Chicago, No. 13 C 9032, 2014 WL 3921359, at *3 (N.D. Ill. Aug. 5, 2014).

Plaintiffs have not yet had the benefit of discovery “to connect every single alleged instance of
misconduct in the complaint to every single specific officer.” Sibley, 2019 WL 670270, at *4
(quoting Hyung Seok Koh, 2013 WL 5348326, at *4); see also Karney, 2016 WL 6082354, at *7
(quoting Gonzalez, 2003 WL 21196245, at *2).
Although Plaintiffs do not respond to this argument that they have not alleged Trooper
Strong’s personal involvement, pleading group conduct in combination with specifically naming
the involved officers is permissible at this stage of the litigation. Notably, Trooper Strong does
not argue that pleading group conduct is impermissible or that he has not been given fair notice
of the wrongful conduct in which he allegedly engaged.
However, just because group pleading is permissible does not mean that Plaintiffs have
stated a claim against Trooper Strong for violations of their constitutional rights. Thus, the Court
considers the allegations of each constitutional violation brought against Trooper Strong. As to
the Fourth Amendment excessive force claim, Trooper Strong does not argue that Plaintiffs have
failed to state a claim of excessive force under the Fourth Amendment in relation to the traffic

stop. Therefore, the Court denies the motion to dismiss Count III brought against Trooper Strong
for a Fourth Amendment excessive force violation. In contrast, Trooper Strong argues in the
motion to dismiss that Plaintiffs have failed to state a claim of race discrimination. The Court
addresses Trooper Strong’s argument along with the same argument raised by the Marshall
County Defendants in Parts C1–2 below. Based on that analysis, the Court finds that Plaintiffs
have failed to state a claim of race discrimination, and the Court grants the motion, dismissing
without prejudice the race discrimination claim in Count I against Trooper Jim Strong.
2. State Law Assault and Battery (Count IV)
As to the Indiana state law tort claims of assault and battery in Count IV, Trooper Strong

argues that he is entitled to immunity under the Indiana Tort Claims Act (ITCA) because
Plaintiffs allege that he was acting within the scope of his employment. The Court notes that
Marshall County Sheriff deputies Jonathan Bryant, Nick Laffoon, Joe Giordano, and Anthony
Bragg assert the same argument in their motion to dismiss, addressed in Part C.3.a below.
Plaintiffs do not respond to this argument.2
Indiana Code § 34-13-3-5(b) provides that “a lawsuit alleging that an employee acted
within the scope of the employee’s employment bars an action by the claimant against the

2 Although Plaintiffs’ response brief contains a section titled “Plaintiff’s[sic] claims are not barred by the Indiana
Tort Claims Act,” that section addresses only the Marshall County Defendants’ argument that the Plaintiffs did not
timely file a tort claims notice. Plaintiffs do not address Trooper Strong’s immunity argument under § 34-13-3-5(b).
employee personally.” Ind. Code § 34-13-3-5(b); see Ball v. City of Indianapolis, 760 F.3d 636,
645 (7th Cir. 2014) (citing Julian v. Hanna, 732 F.3d 842, 848–49 (7th Cir. 2013)). The Indiana
Supreme Court has construed this provision as meaning that “a plaintiff may not now sue a
governmental employee personally if the complaint, on its face, alleges that the employee’s acts
leading to the claim occurred within the scope of employment.” Bushong v. Williamson, 790

N.E.2d 467, 472 (Ind. 2003). “[S]cope of employment” is defined as “conduct of the same
general nature as that authorized, or incidental to the conduct authorized.” Celebration
Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000). “Even tortious acts may fall within
the scope of employment.” Id.
As to Trooper Strong, the amended complaint alleges: “Defendant, Jim Strong, is an
employee and officer of the Indiana State Police, and was so situated at the time of the acts
complained of herein,” and Trooper Strong’s “actions were performed within the course and
scope of [his] employment with the . . . Indiana State Police Department.” Am. Compl. ¶¶ 13, 61.
These allegations bring Trooper Strong within the immunity provided by the ITCA.

As acknowledged by Trooper Strong, a suit may be brought against an individual
employee if the complaint alleges torts that are “(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). However, the amended complaint in this case
alleges nothing more than the bare assertion that the officers acted “intentionally, maliciously,
and with callous disregard” for Rahul Palta’s rights; no facts are offered to support any such
claim. Am. Compl, ¶ 25. In this instance, the controlling allegations are that the officers were
acting within the scope of their employment.
The Seventh Circuit Court of Appeals has held that, when the complaint alleges that the
officers were acting within the scope of employment and the motion to dismiss based on
immunity goes unanswered, as in this case, dismissal of the state law claims is proper. See Ball,
760 F.3d at 645 (holding that dismissal is appropriate when the “claim of immunity under the
Indiana Tort Claims Act has gone unanswered”). The Court grants the motion to dismiss the state

law assault and battery claims in Count IV against Trooper Jim Strong and dismisses the claim
without prejudice.
C. Marshall County Defendants
1. Race Discrimination under 42 U.S.C. § 1981 and 42 U.S.C. § 1983 (Count I)
In Count I, Plaintiffs allege race discrimination under 42 U.S.C. § 1981 and under 42
U.S.C. § 1983 for violations of the Fifth and Fourteenth Amendments. Because “§ 1983 remains
the exclusive remedy for violations of § 1981 committed by state actors,” the Court addresses
Plaintiffs’ race discrimination claims against the Marshall County Defendants under § 1983. See
Campbell, 752 F.3d at 671. As Defendants note, the Fifth Amendment is inapplicable in this

litigation against local and state officers. See Dusenberry v. United States, 534 U.S. 161, 167
(2002).
The Marshall County Defendants (and, as noted above, State Trooper Jim Strong) argue
that Plaintiffs have failed to state a claim of race discrimination. Plaintiffs offer no response in
support of this claim. “The Equal Protection Clause grants all Americans ‘the right to be free
from invidious discrimination in statutory classifications and other governmental activity.’” D.S.
v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 799 (7th Cir. 2015) (quoting Harris v. McRae, 448
U.S. 297, 322 (1980)). A plaintiff may seek relief under § 1983 for a violation of the Equal
Protection Clause by a state actor. Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996). To
state a claim of discrimination under the Equal Protection Clause, a plaintiff must show that he is
a member of a protected class and that he was purposefully treated differently from members of
the unprotected class. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000) (citing Washington v.
Davis, 426 U.S. 229, 239–42 (1976)). The plaintiff must also allege that the defendant was
“motivated by a discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635–36 (7th

Cir. 2001).
Thus, to state a claim for race-based discrimination under § 1983, Plaintiffs must allege
that the officers discriminated against Rahul Palta on September 14, 2017, because of his race.
The Marshall County Defendants and Trooper Strong argue that the only relevant allegations are
that Rahul Palta is of South Asian descent and that his “race and skin color were motivating
factors in the decisions to use excessive force.” Am. Compl. ¶¶ 35, 37. Although Rahul Palta is a
member of a protected class based on his race, Plaintiffs have not alleged any facts to suggest
that the officers were motivated by racial animus. The conclusory allegation regarding
motivation is speculation and insufficient to plausibly suggest that the officers were motivated by

Rahul Palta’s race. Compare Casimir v. City of Chicago, No. 15 C 3771, 2018 WL 1695362, at
*7–8 (N.D. Ill. Apr. 6, 2018) (finding that the alleged details of the complaint were sufficient to
state a clam, including that the plaintiffs were walking in a predominantly white neighborhood,
that one of the plaintiffs testified at the administrative hearing that African Americans were not
welcome in the neighborhood, that police stopped the plaintiffs several times and harassed them
on other occasions, that the mayor’s Police Accountability Task Force indicates that 72% of the
250,000 people stopped during the summer of 2014 were African American, and that a USDOJ
report described a code of silence in the Chicago Police Department), with Johnson v. Vill. of
Bellwood, No. 09C5511, 2010 WL 2653335, at *2 (N.D. Ill. July 1, 2010) (finding that an
allegation that the plaintiff’s arrest “was motivated by race” was insufficient to meet the
plausibility standard of Iqbal, noting that a plaintiff “cannot raise a claim based on pure
speculation, hoping later to find some basis for the claim in discovery”). Accordingly, the Court
grants the motion and dismisses without prejudice Plaintiffs’ race discrimination claim in Count
I as to the Marshall County Defendants.

2. Substantive Due Process under § 1983 for Race Discrimination and Excessive
Force (Count II)

The Marshall County Defendants move to dismiss the substantive due process claims in
Count II on the basis that the Fourth and Fourteenth Amendments provide an explicit textual
source of constitutional protection for the claims of excessive force and race discrimination.
“[W]here a particular Amendment provides an explicit textual source of constitutional protection
against a particular source of government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for analyzing [those] claims.” Cty. of
Sacramento v. Lewis, 523 U.S. 833, 841 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273
(1994) (plurality opinion of Rehnquist, CJ)). The State Defendants join in this analysis. ECF No.
47, p. 3. Plaintiffs offer no response in support of their substantive due process claims.
As to the excessive force claim, Count II alleges that the officers “violated Rahul Palta’s
right to bodily integrity and freedom from unreasonable bodily intrusion in a manner so
egregious, that it may fairly be said to shock the conscience.” Am. Compl. ¶ 45. However, Count
III alleges a claim of excessive force under the Fourth Amendment. In Graham v. Connor, the
Supreme Court held that “all claims that law enforcement officers have used excessive force—
deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than
under a ‘substantive due process’ approach.” 490 U.S. 386, 395 (1989); see also Lester v. City of
Chicago, 830 F.2d 706, 710 (7th Cir. 1987).
As to the race discrimination claim, Count II alleges that Rahul Palta “had the clearly
established constitutional right to be free from racial discrimination in law enforcement by police
officers and to enjoy the equal protection of the laws.” Am. Compl. ¶ 46. However, this

statement does not allege a substantive due process violation but rather race discrimination,
which Plaintiffs already allege as an equal protection violation in Count I. See Swanson v. City of
Chetek, 719 F.3d 780, 783 (7th Cir. 2013) (“The Equal Protection Clause of the Fourteenth
Amendment protects individuals from governmental discrimination.”); see also Albritton v. Vill.
of Dolton, No. 10 C 7581, 2011 WL 4501418, at *5–6 (N.D. Ill. Sept. 28, 2011) (dismissing a
substantive due process claim that the plaintiffs had not shown to be distinct from their
Fourteenth Amendment equal protection claim).
Accordingly, the Court grants both motions on this issue and dismisses with prejudice the
substantive due process claims brought in Count II against all Defendants.

3. State Law Assault and Battery (Counts IV and V)
In Count IV, Plaintiffs allege state law claims of assault and battery against the individual
officers, and, in Count V, Plaintiffs allege a claim of respondeat superior/vicarious liability
against the Marshall County Sheriff’s Department for the alleged assault and battery. The
Marshall County Defendants seek dismissal of the claims, arguing that the officers are immune
because they were acting within the scope of their employment and that Plaintiffs failed to timely
file a tort claims notice under the ITCA.
a. Officer Defendants (Count IV)
Like Trooper Strong, the Marshall County Sheriff deputies argue that they cannot be sued
in their personal capacities for the state law claims of assault and battery in Count IV in light of

Indiana Code § 34-13-3-5(b). See Bushong, 790 N.E.2d at 471. Plaintiffs again offer no response
to this argument. As explained in Part B.2 above, when the complaint alleges that the officers
were acting within the scope of employment, as the amended complaint does here for each
officer, Am. Compl. ¶¶ 9–12, 32, 55, 61, and the motion to dismiss based on immunity goes
unanswered by Plaintiffs, dismissal of the state law claims is proper. See Ball, 760 F.3d at 645
(holding that dismissal is appropriate when the “claim of immunity under the Indiana Tort
Claims Act has gone unanswered”). Accordingly, the Court grants the motion and dismisses
without prejudice the state law claims of assault and battery in Count IV against Marshall
County Sheriff deputies Jonathan Bryant, Nick Laffoon, Joe Giordano, and Anthony Bragg.

b. Marshall County Sheriff’s Department (Count V)
The Marshall County Defendants argue that Plaintiffs failed to comply with the 180-day
notice requirement of the ITCA, barring the state law claims against both the officers and the
Marshall County Sherriff’s Department. Under the ITCA, “a claim against a political subdivision
is barred unless notice is filed with . . . (1) the governing body of the political subdivision; and
(2) the Indiana political subdivision risk management commission . . . within one hundred eighty
(180) days after the loss occurs.” Ind. Code § 34-13-3-8(a). Plaintiffs respond that the alleged
failure to timely serve notice under the ITCA is an affirmative defense that is improperly before
the Court on this 12(b)(6) motion to dismiss.
The failure to serve notice under the ITCA is an affirmative defense. Brown v. Alexander,
876 N.E.2d 376, 283–84 (Ind. Ct. App. 2007). And, a complaint need not anticipate an
affirmative defense to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842

(7th Cir. 2005) (citing Gomez v. Toledo, 446 u.S. 635, 640 (1980)). Plaintiffs argue that the
allegations of the amended complaint, which the Court must take as true at this stage of the
litigation, are that Rahul Palta is under an incapacity and that the ITCA filing requirements are
tolled by Rahul Palta’s ongoing mental illness. See Am. Compl. ¶¶ 16, 17, 28. Despite the
allegation in paragraph 28 of the amended complaint that Rahul Palta’s mental illness is the basis
for tolling the ITCA filing requirements, the Marshall County Defendants fail to address the
tolling issue is in their motion to dismiss. Moreover, the amended complaint does not allege the
date that Plaintiffs submitted their ITCA notice.
Accordingly, the Court denies the motion to dismiss Count V for respondeat

superior/vicarious liability against the Marshall County Sheriff’s Department. This ruling does
not preclude the Marshall County Defendants from later raising this affirmative defense.3
4. Monell Liability—Marshall County Sheriff’s Department (Count VI)

In Count VI, Plaintiffs bring a claim of municipal liability against the Marshall County
Sheriff’s Department. This claim fails because the amended complaint does not allege any
plausible basis upon which the Marshall County Sheriff’s Department could be held liable for the

3 “[W]hen a plaintiff fails to give the required notice, the defendant has an affirmative defense which must be raised
in a responsive pleading to the plaintiff’s complaint.” Davidson v. Perron, 716 N.E.2d 23, 34 (Ind. Ct. App. 1999)
(citing Thompson v. City of Aurora, 325 N.E.2d 839, 843 (Ind. 1975)). “Once the defendant raises the failure to
comply with the ITCA’s notice requirements as an affirmative defense, the burden shifts to the plaintiff to prove
compliance.” Id. (citing Thompson, 325 N.E.2d at 843). Thus, Plaintiffs will have the burden of proving compliance
on summary judgment.
alleged excessive force claim against its officers. Section 1983 does not impose vicarious
liability against municipalities. Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). “Plaintiffs
who seek to impose liability on local governments under § 1983 must [allege] that ‘action
pursuant to official municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51,
60 (2011) (quoting Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). For a

municipality to be liable under § 1983 for a failure to train, the “failure to train its employees in a
relevant respect must amount to ‘deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact.’” Id. (quoting City of Canton, Ohio v. Harris, 489 U.S.
378, 388 (1989)) (internal alteration omitted).
Here, Plaintiffs make only conclusory, boilerplate allegations that “policymakers . . .
established policies, procedures, customs, and/or practices,” that the Marshall County Sheriff’s
Department developed and maintained policies and procedures that were “moving forces” behind
the violations of Rahul Palta’s constitutional rights, that the Marshall County Sheriff’s
Department created an atmosphere of lawlessness, and that the Marshall County Sheriff’s

Department failed to train its officers. Am. Compl. ¶¶ 72–76. The amended complaint supplies
no factual allegations to make these claims plausible. And, Plaintiffs offer no response in support
of this Monell claim. Therefore, the Court grants the motion and dismisses without prejudice the
Monell claim in Count VI against the Marshall County Sheriff’s Department.
IV. CONCLUSION
The Court GRANTS in part and DENIES in part the Marshall County Defendants’ partial
motion to dismiss Counts I, II, IV, V, and VI [DE 38] and GRANTS in part and DENIES in part
the State Defendants’ motion to dismiss [DE 46].
The Court ORDERS:
(1) the substantive due process claim in Count II is dismissed with prejudice as to all
Defendants;
(2) the federal constitutional claims in Counts I, II, III, and VI against the Indiana State
Police and Jim Strong in his official capacity are dismissed with prejudice, except that any §
1983 claim for injunctive relief is dismissed without prejudice, and Defendant Indiana State

Police is dismissed from the litigation;
(2) the state law assault and battery claims in Counts IV and V against the Indiana State
Police and Jim Strong in his official capacity are dismissed without prejudice;
(3) the federal constitutional race discrimination claim in Count I and the state law assault
and battery claims in Count IV against Jim Strong individually are dismissed without prejudice;
(4) the federal constitutional race discrimination claim in Count I and the state law assault
and battery claims in Count IV against Jonathan Bryant, Nick Laffoon, Joe Giordano, and
Anthony Bragg in their individual capacities are dismissed without prejudice; and
(5) the federal constitutional race discrimination claim in Count I and the Monell liability

claim in Count VI against the Marshall County Sheriff’s Department are dismissed without
prejudice.
The claims remaining for trial are (1) the excessive force claim in Count III brought
under the Fourth Amendment pursuant to § 1983 against Jonathan Bryant, Nick Laffoon, Joe
Giordano, Anthony Bragg, and Jim Strong in their individual capacities, and (2) the claim in
Count V for respondeat superior/vicarious liability against the Marshall County Sheriff’s
Department for the Indiana state law assault and battery claims.
SO ORDERED.
ENTERED: September 18, 2019

/s/ JON E. DEGUILIO
Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10158361. Public record. Not legal advice.