Santos v. County of Lake, Indiana

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ADRIAN SANTOS, III,

Plaintiff,

v. CAUSE NO.: 2:17-CV-273-TLS-APR

COUNTY OF LAKE, INDIANA; LAKE

COUNTY SHERIFF’S DEPARTMENT;

JOHN BUNCICH in his individual capacity;

and OSCAR MARTINEZ in his official

capacity as Sheriff of Lake County, Indiana,

Defendants.

OPINION AND ORDER

This matter is before the Court on Lake County’s Motion to Dismiss Second Amended

Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 36] as well as the Sheriff Defendants’

Motion to Dismiss Second Amended Complaint [ECF No. 40]. For the reasons set forth below,

Lake County’s motion is denied. The Court grants in part and denies in part the Sheriff

Defendants’ motion, granting only the dismissal of the claims brought against Oscar Martinez in

his official capacity as Sheriff of Lake County, Indiana.

BACKGROUND

Plaintiff Adrian Santos, III filed a Second Amended Complaint [ECF No. 27] on

November 3, 2017. Plaintiff was employed as a police officer by the County of Lake, Indiana

(Lake County) and/or the Lake County Sheriff’s Department (Sheriff’s Department) from

August 2012 until his discharge in 2015. Sec. Am. Compl. ¶ 1, ECF No. 27. Plaintiff challenges

his discharge under the Americans with Disabilities Act, 42 U.S.C. § 12112(b)(4); the

Rehabilitation Act, 29 U.S.C. § 794(a); and the First and Fourteenth Amendments to the United

States Constitution pursuant to 42 U.S.C. § 1983. Id. ¶¶ 1, 3.

The following factual allegations are taken from the Second Amended Complaint.

Plaintiff is a former employee (police officer) of Lake County and/or the Sheriff’s Department.

Id. ¶ 4. Lake County and/or the Sheriff’s Department is an “employer” as defined in Title I of the

ADA, 42 U.S.C. § 12111(5), and these entities receive federal financial assistance. Id. ¶ 5(a).

Lake County paid the salary of Plaintiff and Defendant John Buncich, as well as other county

police officers. Id. Sheriff Buncich had the statutory authority to dismiss county police officers

under Indiana Code § 36-8-10-11(a). Id. ¶ 5(b). Lake County is responsible for paying any

judgment awarding compensatory damages against Sheriff Buncich, and it may pay any punitive

damages awarded against him. Id. ¶ 5(a).

Defendant Buncich is a Democrat and was elected Sheriff of Lake County in November

2010 and again in November 2014. Id. ¶ 5(c). Prior to the Democratic primary election in May

2014, Plaintiff publicly supported Oscar Martinez, one of Buncich’s opponents. Id. ¶ 13.

Buncich was removed from office on August 24, 2017. Id. ¶ 5(c).

As Sheriff, Buncich had the authority to place officers on leave; to file disciplinary

charges against officers with the Sheriff’s Merit Board; to recommend discipline, including

discharge, to the Merit Board; and to dismiss or discharge Lake County police officers after a

hearing with the Merit Board. Id.

On May 29, 2014, Plaintiff was arrested and charged with misdemeanor domestic battery

and felony strangulation based on an incident involving him and his wife on May 28, 2014. Id.

¶ 6. Subsequently, Sheriff Buncich charged Plaintiff with four counts alleging violations of the

Sheriff’s Merit Board Rules: (1) violating state law, (2) conduct unbecoming a police officer, (3)

violating Sheriff’s Department rules and regulations, and (4) committing acts that bring the

Department into disrepute. Id. ¶ 7. Sheriff Buncich placed Plaintiff on administrative leave, with

pay. Id.

In November 2014, while on administrative leave, Plaintiff and his wife learned that their

oldest son, age 14, had stage-4 brain cancer, with less than five years to live. Id. ¶ 11. The

Sheriff’s Department was notified of this in December 2014. Id.

In March 2015, the Lake County Prosecutor dropped the criminal charges against

Plaintiff. Id. ¶ 6. Subsequently, Plaintiff informed Sheriff Buncich that the charges had been

dismissed, that his son’s condition was getting worse, and that he might need to take time off to

deal with his son’s situation. Id. ¶ 11. Sheriff Buncich told Plaintiff to await the outcome of the

Merit Board proceedings and go from there. Id.

On April 20, 2015, Plaintiff was stopped by an Indiana State Police trooper who issued

two traffic citations for speeding and failure to signal lane change and also issued a warning for

improper window tinting. Id. ¶ 8.

In May 2015, Plaintiff appeared before the Merit Board and was presented with four

additional counts brought by Sheriff Buncich related to the traffic citations and warning. Id. ¶ 9.

The counts alleged violations of four Merit Board Rules: (1) violating state law, (2) conduct

unbecoming an officer, (3) violation of Sheriff’s Department rules and regulations, and (4)

committing acts that bring the Department into disrepute. Id. At that time, Sheriff Buncich’s

attorney informed Plaintiff that Sheriff Buncich would recommend discharge if Plaintiff did not

resign. Id. On June 2, 2015, the Lake County Prosecutor dismissed the traffic charges. Id.

On July 16, 2015, the Merit Board found Plaintiff guilty of conduct unbecoming a police

officer and failing to treat another officer civilly and courteously. Id. ¶¶ 7, 9. The Merit Board

met on July 21, 2015, and heard additional evidence related to punishment. Id. ¶ 10. In a written

order entered on August 12, 2015, the Merit Board accepted Sheriff Buncich’s recommendation

and found just cause for dismissal of Plaintiff. Id. Plaintiff’s appeal of the Merit Board decision

was affirmed by the Lake Superior Court in a judgment entered on June 20, 2017. Id.

Prior to his son’s death on June 1, 2016, Plaintiff incurred medical expenses of

approximately $1,000,000.00, some of which was paid by Lake County through its self-funded

medical benefit for employees and some of which was paid by Medicaid. Id. ¶ 12.

Approximately $40,000.00 of the medical expenses remains unpaid. Id.

Plaintiff alleges that disciplinary decisions and recommendations made by Sheriff

Buncich are based on factors other than merit, including political support of Buncich and

associations with Buncich. Id. ¶ 13. For example, Plaintiff alleges that an agent of Sheriff

Buncich informed Plaintiff’s attorney in the disciplinary proceedings that Officer Orlich, whose

Class D felony charge of official misconduct was dismissed as part of a pre-trial diversion

agreement, received a favorable recommendation from Sheriff Buncich, specifically a sixty-day

suspension that was approved by the Merit Board, because of Sheriff Buncich’s long association

with Orlich’s father. Id.

As Sheriff, Buncich appointed three of the five members of the Merit Board, and Plaintiff

alleges that the appointees tend to vote on disciplinary matters in accordance with Sheriff

Buncich’s recommendation, thereby making Sheriff Buncich the de facto decision-maker in

Merit Board proceedings related to officer discipline and discharge. Id. ¶ 14. Pursuant to Indiana

Code § 36-8-10-11(a) and Art. 5, Chapter 1, § 5-1-1 of the Merit Board Rules, Buncich, as

sheriff, had the actual authority to discharge Plaintiff after the Merit Board proceedings. Id. The

discipline of discharge imposed on Plaintiff is harsher than the discipline imposed on other

Sheriff’s police officers who were charged with more serious offenses in recent years. Id.

Plaintiff alleges that this difference in treatment is explained by Plaintiff’s support of Oscar

Martinez in the May 2014 primary election and by the disability (brain cancer) of Plaintiff’s son,

which resulted in substantial medical expenses incurred by Lake County. Id.

On November 17, 2017, Lake County filed a Motion to Dismiss [ECF No. 36] pursuant

to Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed a response [ECF No. 38] on

November 30, 2017, and Lake County filed a reply [ECF No. 39] on December 8, 2017. On

January 3, 2018, Defendants John Buncich in his individual and official capacities and the

Sheriff’s Department filed a Motion to Dismiss [ECF No. 40], also under Rule 12(b)(6). Plaintiff

filed a response [ECF No. 42] on January 16, 2018, and Defendants Buncich and the Sheriff’s

Department filed a reply [ECF No. 43] on January 25, 2018.

On May 1, 2019, this matter was reassigned to the undersigned as presiding judge, and

the Court subsequently held a telephonic status conference with the parties. See ECF Nos. 69–70.

On September 30, 2019, and October 12, 2019, respectively, Plaintiff and Lake County each

filed a supplemental brief [ECF No. 73, 76] with leave of Court.

LEGAL STANDARD

A motion to dismiss brought under 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. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). 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 plaintiff pleads factual content

that 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

Lake County seeks dismissal of all of Plaintiff’s claims against it, arguing that Plaintiff

has not pleaded facts sufficient to establish an agency relationship between the Sheriff and Lake

County. In its motion, the Sheriff’s Department seeks dismissal of the claims under the ADA and

the Rehabilitation Act on the basis that Plaintiff has not stated a claim under either statute. As for

the § 1983 claims, both Lake County and the Sheriff’s Department argue that Plaintiff has not

pleaded sufficient facts for Monell liability based on a municipal policy, procedure, or custom.

Finally, Defendant Buncich seeks dismissal of the claims against him in his individual capacity

based on absolute immunity and dismissal of the claims against him in his official capacity as

redundant with the claims against the Sheriff’s Department. The Court considers the motions to

dismiss as to each of Plaintiff’s three legal claims and then turns to the arguments raised by

Defendant Buncich.

A. Americans With Disabilities Act

Plaintiff alleges in the Second Amended Complaint that his discharge from his job as a

Lake County police officer was based on his support for Oscar Martinez in the May 2014

primary election and on “the disability (brain cancer) of [his] son, which resulted in substantial

medical expenses incurred by the County, prior to his death on June 1, 2016.” Sec. Am. Compl.

¶ 14. Plaintiff challenges his discharge under Title I of the Americans with Disabilities Act, 42

U.S.C. § 12112(b)(4).

Title I of the ADA provides that “[n]o covered entity shall discriminate against a

qualified individual on the basis of disability in regard to . . . the . . . discharge of employees.” 42

U.S.C. § 12112(a). The term “discriminate against a qualified individual on the basis of

disability” includes “denying equal jobs or benefits to a qualified individual because of the

known disability of an individual with whom the qualified individual is known to have a

relationship or association.” Id. § 12112(b)(4). The definition of “covered entity” includes “an

employer.” Id. § 12111(2).

1. Lake County

In its motion to dismiss, Lake County argues that Plaintiff was not its “employee” for

purposes of the ADA because Lake County, and more specifically the Lake County Executive

(the Lake County Commissioners), does not have control over the acts of the Sheriff or the

Sheriff’s officers. Lake County contends that, because it has no control over the Sheriff, there is

no agency relationship by operation of state law, and, therefore, Plaintiff does not meet the

ADA’s definition of “employee.”

Title I of the Americans with Disabilities Act defines an “employee” as an “individual

employed by an employer.” 42 U.S.C. § 12111(4). The Indiana Code provides: “A county police

force is established in each county. The members are employees of the county, and the sheriff of

the county shall assign their duties according to the law.” Ind. Code § 36-8-10-4(a) (emphasis

added). The statute further provides that “[t]he expenses of the county police force are a part of

the sheriff’s department budget” and that “the county fiscal body shall determine the budget and

salaries.” Id. § 36-8-10-4(b).

In this case, Plaintiff served as a police officer for the Lake County Sheriff’s Department.

By statute, county police officers are employees of the county. See id. § 36-8-10-4(a). Thus,

Plaintiff argues that, because he was a county police officer, he is an employee of Lake County

for purposes of his ADA claim. In its reply brief, Lake County does not address the ADA claim

nor does it reassert that it is not an employer for purposes of the ADA. Lake County offers no

argument regarding the interplay between Indiana Code § 36-8-10-4(a) and the definition of

“employee” for purposes of the ADA.

In its opening brief, Lake County cites numerous cases holding that, under Indiana state

law, a county and its commissioners do not have control over the acts of the sheriff or the

sheriff’s officers such that a county cannot be held liable for the actions of the sheriff. See Lake

Cty. Br. 2–3, ECF No. 36 (citing Jendrzejczyk v. LaPorte County, Indiana, No. 2:15-CV-300,

2017 WL 3387405, *4 (N.D. Ind. Aug. 4, 2017); Radcliff v. County of Harrison, 627 N.E.2d

1305, 1306 (Ind. 1994); Donahue v. St. Joseph Cty. ex rel. Bd. of Comm’rs of St. Joseph Cty.,

720 N.E.2d 1236, 1241 (Ind. Ct. App. 1999); Carver v. Crawford, 564 N.E.2d 330, 334 (Ind. Ct.

App. 1990); Delk v. Bd. of Comm’rs of Delaware Cty., 503 N.E.2d 436, 440 (Ind. Ct. App.

1987)). However, these cases, discussed in more detail below in the context of the § 1983 claim,

address the allegedly tortious actions of county or city police officers acting in law enforcement

capacities and consider liability for state law claims based on respondeat superior liability or for

civil rights claims under 42 U.S.C. § 1983. None of the cases is an employment case, an ADA

employment discrimination case, or an employment discrimination case brought by a county

police officer. Lake County does not address how Indiana Code § 36-8-10-4(a) affects the

holdings of these cases in the context of the ADA claim.

Thus, on this motion to dismiss, Lake County has not presented authority demonstrating

that Plaintiff was not an employee of Lake County for purposes of the ADA, and the Court

denies Lake County’s motion to dismiss Plaintiff’s ADA claim.

2. The Sheriff’s Department

In its motion, the Sheriff’s Department argues that Plaintiff has failed to state a claim

under the ADA because the ADA does not allow for mixed motive claims and Plaintiff has failed

to plead that the alleged disability was the “but for” cause of his termination.1 The Court finds

that Plaintiff has stated a claim of discrimination under the ADA against the Sheriff’s

Department.

As noted above, the ADA provides that “[n]o covered entity shall discriminate against a

qualified individual on the basis of disability in regard to . . . the . . . discharge of employees.” 42

U.S.C. § 12112(a) (emphasis added). Prior to the 2008 amendments to the ADA, the statute

provided that “[n]o covered entity shall discriminate against a qualified individual with a

disability because of the disability of such individual . . . .” 42 U.S.C. § 12112(a) (emphasis

added) (eff. until Dec. 31, 2008). Considering the pre-amendment version of § 12112(a), the

Seventh Circuit held that “a plaintiff complaining of discriminatory discharge under the ADA

must show that his . . . employer would not have fired him but for his actual or perceived

disability.” Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010) (emphasis

added). In light of the 2008 amendment to the ADA, the Seventh Circuit has commented that

“[i]t is an open question whether the but-for standard . . . announced in Serwatka survived the

amendment to the ADA.” Silk v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d

1 The Sheriff’s Department describes Plaintiff’s claim as an “ADA retaliation claim.” Sheriff’s Dep’t Br. 11, ECF

No. 41. However, Plaintiff alleges a discrimination claim under 42 U.S.C. § 12112(b)(4).

698, 706 (7th Cir. 2015). The Court need not resolve the issue because, at this stage of the

litigation, Plaintiff has stated a claim for ADA discrimination under the “but-for” standard.

In arguing for dismissal, the Sheriff’s Department reasons that Plaintiff’s Second

Amended Complaint alleges that the “immediate cause” of his termination was the violation of

the Merit Board Rules. The Sheriff’s Department notes that Plaintiff alleges that the Merit Board

found Plaintiff guilty of violating Merit Board Rules and that Plaintiff admits that Sheriff

Buncich had the statutory authority to dismiss county police officers after preferring charges and

after a fair public hearing. Thus, the Sheriff’s Department reasons that, because Plaintiff has

alleged that he was terminated for a reason other than disability, Plaintiff cannot state a claim

under the ADA.

However, this reasoning ignores that Plaintiff’s lawsuit challenges whether the violations

of Merit Board Rules were the real reason for his discharge. That is a factual question that cannot

be resolved at this stage of the litigation. Plaintiff alleges that his discharge was based on “the

disability (brain cancer) of [his] son, which resulted in substantial medical expenses incurred by

the County, prior to his death on June 1, 2016,” as well as his support of Martinez in the May

2014 primary election. Sec. Am. Compl. ¶ 14. If Plaintiff can prove the allegations that his son’s

disability was the reason for the termination of his employment, he will have met the

requirements of § 12112(b)(4) and proven “but for” causation. See Serwatka, 591 F.3d at 962. At

this stage of the proceedings, Plaintiff has adequately pled a Title I ADA claim under

§ 12112(b)(4), and the Court denies the Sheriff’s Department’s motion to dismiss the claim.

B. Rehabilitation Act

Plaintiff’s Second Amended Complaint brings a claim challenging his discharge under

the Rehabilitation Act, 29 U.S.C. § 794(a). The Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United States, as defined in

section 705(20) of this title, shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance . . . .

29 U.S.C. § 974(a). The Rehabilitation Act incorporates the standards applicable to Title I of the

ADA. See Brumfield v. City of Chicago, 735 F.3d 619, 630–34 (7th Cir. 2013) (citing 29 U.S.C.

§ 794(d)). This includes the ADA’s prohibition against “denying equal jobs or benefits to a

qualified individual because of the known disability of an individual with whom the qualified

individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).

1. Lake County

In its Motion to Dismiss, Lake County addresses dismissal of the Rehabilitation Act

claim with a single sentence: “Further, the Court’s analysis of a Rehabilitation Act claim in this

context is analogous to the analysis of a Title VII claim, which would carry the same definition

of ‘employee’ as the Americans with Disabilities Act.” Lake Cty. Br. 4 (citing Katsiavelos v.

Fed. Reserve Bank of Chi., 859 F. Supp. 1183, 1183 (N.D. Ill. 1994); 29 U.S.C. § 794a(a)(1); 42

U.S.C. § 2000e(f)).2

However, as argued by Plaintiff, the proper defendant for a claim under the

Rehabilitation Act is a recipient of federal financial assistance. See U.S. Dep’t of Transp. v.

2 In Katsiavelos, a former employee of the Federal Reserve Bank of Chicago brought suit alleging a violation of the

Rehabilitation Act. Katsiavelos v. Fed. Reserve Bank of Chi., 859 F. Supp. 1183, 1183 (N.D. Ill. 1994). In that case,

the court addressed the question of whether the Federal Reserve Bank of Chicago is an entity to which the

Rehabilitation Act applies and concluded that, because the bank is not an “executive agency,” the bank is not

covered by the federal sector provisions of the Rehabilitation Act. Id. It is unclear how Katsiavelos is applicable in

the instant case.

Paralyzed Veterans of Am., 477 U.S. 597, 604–06 (1986). Plaintiff has alleged in his Second

Amended Complaint that Lake County is the recipient of federal financial assistance. Sec. Am.

Compl. ¶ 5a. Lake County’s reply brief does not address Plaintiff’s Rehabilitation Act claim and,

thus, does not respond to Plaintiff’s argument or provide any further support for dismissal of the

claim. Finding that Plaintiff has stated a claim against Lake County under the Rehabilitation Act,

the Court denies Lake County’s motion to dismiss this claim.

2. The Sheriff’s Department

Although the ADA and the Rehabilitation Act are very similar, “the Rehabilitation Act

prohibits discrimination only if it is ‘solely by reason of’ a person’s disability.” Reed v.

Columbia St. Mary’s Hosp., 915 F.3d 473, 484 (7th Cir. 2019) (citing Whitaker v. Wis. Dep’t of

Health Servs., 849 F.3d 681, 684 (7th Cir. 2017)); see 29 U.S.C. § 794(a). The Sheriff’s

Department argues that Plaintiff has failed to state a claim under the Rehabilitation Act because

Plaintiff has not pleaded that he was terminated “solely” by reason of the alleged disability. The

Sheriff’s Department contends that Plaintiff’s own allegations demonstrate that other factors

played a role in his termination, specifically the allegations that the Merit Board found that

Plaintiff had violated Merit Board Rules and that the sheriff has the statutory authority to

terminate county police officers after preferring charges and after a fair public hearing before the

Merit Board.

However, the Sheriff’s Department again fails to recognize that Plaintiff’s Complaint

challenges Defendants’ stated reasons for discharging Plaintiff as false. Plaintiff has alleged that

the Sheriff’s Department receives federal financial assistance, that his discharge was based on

“the disability (brain cancer) of [his] son, which resulted in substantial medical expenses

incurred by the County, prior to his death on June 1, 2016,” and that the disciplinary decisions

and recommendations made by Sheriff Buncich are based on factors other than the merits of the

charges. At this stage of the litigation, Plaintiff is not required to make out a prima facie case

under the Rehabilitation Act but rather must plead facts sufficient to raise the right to relief

above the speculative level. See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. and Nw.

Ind., 786 F.3d 510, 517–18 (7th Cir. 2015); see also Twombly, 550 U.S. at 555. The Court finds

that Plaintiff has sufficiently pled a claim under the Rehabilitation Act and denies the Sheriff’s

Department’s motion to dismiss the claim.

C. 42 U.S.C. § 1983

In the Second Amended Complaint, Plaintiff brings a claim under 42 U.S.C. § 1983 for a

violation of his rights under the First and Fourteenth Amendments to the United States

Constitution. To state a claim under § 1983, a plaintiff must allege “(1) that defendants deprived

him of a federal constitutional right; and (2) that the defendants acted under color of state law.”

Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). The First Amendment, applicable to state

and local governments and their officials through the Fourteenth Amendment, prohibits adverse

employment actions against government employees because of their political speech and

association. See, e.g., Elrod v. Burns, 427 U.S. 347, 349–50 (1976); Branti v. Finkel, 445 U.S.

507, 513–17 (1980); Rutan v. Republican Party of Ill., 497 U.S. 62, 68–76 (1990); Daza v.

Indiana, 941 F.3d 303, 308 (7th Cir. 2019). Plaintiff alleges that his constitutional rights were

violated when his employment was terminated because he supported one of Buncich’s

opponents—Oscar Martinez—in the May 2014 Democratic primary.

Lake County and the Sheriff’s Department each argue that, as a municipality, it cannot be

held liable under § 1983 because Plaintiff has not alleged a municipal policy, practice, or custom,

citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690 (1978).

Monell liability is not a form of respondeat superior; instead a municipality can only be held

liable as an entity under § 1983 “when execution of [its] policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury.” Id. at 694.

To state a claim that a municipality has violated an individual’s civil rights under § 1983,

a plaintiff must allege that (1) the municipality had an express policy that, when enforced, causes

a constitutional deprivation; (2) the municipality had a widespread practice that “is so permanent

and well settled it constitutes a custom or usage within the force of law”; or (3) the plaintiff’s

constitutional injury was caused by a person with final policymaking authority. McCormick v.

City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000) (citing McTigue v. City of Chicago, 60 F.3d

381, 382 (7th Cir. 1995)).

Lake County and the Sheriff’s Department focus solely on the first two bases for

municipal liability in their motions. They argue that Plaintiff has failed to state a claim for

municipal liability because Plaintiff’s only allegation of an unconstitutional policy is Sheriff

Buncich’s compliance with state law (Indiana Code §§ 36-8-10-3(b), 36-8-10-11) and general

compliance with state law cannot constitute an unconstitutional local government policy. See

Lake Cty. Mot. 5–6, ECF No. 36 (citing Snyder v. King, 745 F.3d 242, 247 (7th Cir. 2014);

Surplus Store and Exch., Inc. v. City of Delphi, 928 F.2d 788, 791–92 (7th Cir. 1991); Whitesel v.

Sengenberger, 222 F.3d 861, 872 (10th Cir. 2000); Familias Unidas v. Briscoe, 619 F.2d 391,

404 (5th Cir. 1980)); Sheriff’s Dep’t Br. 7–8, ECF No. 41 (same).

However, Plaintiff clarifies in his response brief that he is proceeding under the third

form of municipal liability, namely that his constitutional injury was caused by a person with

final policymaking authority—Sheriff Buncich. Pembaur v. City of Cincinnati recognized that “it

is plain that municipal liability may be imposed for a single decision by municipal policymakers

under appropriate circumstances.” 475 U.S. 469, 480 (1986). For a local government to be liable

under § 1983, the act that allegedly violated the constitution “must carry out an official policy

made by the local government’s lawmakers or officials ‘whose edicts or acts may fairly be said

to represent’ the local government’s policy.” Burger v. County of Macon, 942 F.3d 372, 374 (7th

Cir. 2019) (quoting Monell, 436 U.S. at 694). “In other words, an act is an official local-

government policy when the decision to adopt a particular course of action ‘is properly made by

that government’s authorized decisionmakers.’” Id. (quoting Pembaur, 475 U.S. at 481).

Whether an official has final policy-making authority depends on state law. Pembaur, 475 U.S.

at 483; Burger, 942 F.3d at 375 (citing McMillian v. Monroe County, 520 U.S. 781, 786–87

(1997)).

Several provisions of Indiana state law, as identified by the parties, are relevant to the

inquiry of whether the act of Sheriff Buncich constitutes a policy of Lake County and/or the

Sheriff’s Department. First, as noted above in the ADA discussion: “A county police force is

established in each county. The members are employees of the county, and the sheriff of the

county shall assign their duties according to the law.” Ind. Code § 36-8-10-4(a). In addition,

“[t]he expenses of the county police force are a part of the sheriff’s department budget,” and “the

county fiscal body shall determine the budget and salaries.” Id. § 36-8-10-4(b).

Second, “[t]he fiscal body of each county shall, by ordinance, establish a sheriff’s merit

board.” Id. § 36-8-10-3(a). The statute further provides that the merit board shall consist of five

members and that three “members shall be appointed by the sheriff.” Id. § 36-8-10-3(b).

Third, “[t]he sheriff may dismiss, demote, or temporarily suspend a county police officer

for cause after preferring charges in writing and after a fair public hearing before the board,

which is reviewable in the circuit court, superior court, or probate court.” Id. § 36-8-10-11(a).

Finally, a county sheriff in Indiana is an independently elected office established by the

Indiana Constitution. See Ind. Const. art. VI, § 2; Donahue, 720 N.E.2d at 1241; see also

Argandona v. Lake County Sheriff’s Dep’t, 2:06-CV-259, 2007 WL 518799, *3 (N.D. Ind. Feb.

13, 2007) (citing Ind. Const. art. VI, § 2; Markley v. Walters, 790 F. Supp. 190, 191 (N.D. Ind.

1992)). The powers and duties of the sheriff’s department are established by the Indiana State

legislature. See Donahue, 720 N.E.2d at 1241 (citing Carver, 564 N.E.2d at 334); see also

Argandona, 2007 WL 518799, at *3.

Plaintiff cites Indiana Code §§ 36-8-10-4(a), 36-8-10-4(b), and 36-8-10-11 to argue that

Sheriff Buncich was the head of a department of county government, that he had the authority to

assign duties to the members of the county police force, and that he was the final decisionmaker

in discharging a county police officer for cause. Plaintiff argues that, under Pembaur, Indiana

state law demonstrates that Lake County and/or the Sheriff’s Department should be held liable if

it is determined that Sheriff Buncich violated Plaintiff’s constitutional rights in terminating his

employment. See Valentino v. Village of South Chicago Heights, 575 F.3d 664, 675–78 (7th Cir.

2009) (finding on summary judgment that, under Illinois state law, the mayor was the final

policymaker on personnel decisions because the evidence indicated that the mayor, either

personally or by delegation, made the personnel decision for his office and that he was the de

facto policymaker for the village with regard to personnel decisions in his office).

In reply, the Sheriff’s Department argues that the Sheriff’s decision-making authority as

to discipline is limited by the Merit Board’s role under Indiana Code § 36-8-10-11. However,

Plaintiff has also alleged that Sheriff Buncich was the de facto decisionmaker based on his

control over the three members he appointed to the Merit Board. See Sec. Am. Compl. ¶ 5; see

also Valentino, 575 F.3d at 675–76.

For the reasons set forth above, the Court finds that Plaintiff has stated a claim for

municipal liability under Pembaur based on Sheriff Buncich’s actions. See Valentino, 575 F.3d

at 675–76; Ind. Code §§ 36-8-10-3, 36-8-10-11.3

In a separate section of its motion, Lake County argues generally that it cannot be held

liable for Sheriff’s Buncich’s actions as a policymaker because Buncich, as sheriff, lacked an

agency relationship with Lake County. Indeed, in Delk, the Indiana Court of Appeals held that

the county “does not have any control over the acts of the sheriff.” 503 N.E.2d at 440. The court

reasoned that, because the county commissioners do not have the power to control the acts

performed by the sheriff or any sheriff’s deputy, there is no agency relationship between the

county (and its commissioners) and the sheriff. Id. And, “the principle of respondeat superior

cannot provide a basis for the county or the commissioners’ liability on either the theory of false

imprisonment or the alleged violation of [plaintiff’s] civil rights.” Id.

However, as noted above in the ADA claim, the cases cited by Lake County do not

address a discrimination claim in the employment context. In Delk, the plaintiff alleged claims of

false imprisonment and violations of her civil rights under 42 U.S.C. § 1983 when she was

mistakenly arrested and taken to the county jail by a county deputy sheriff. 503 N.E.2d at 438. In

Carver, a motorist brought a personal injury claim based on injuries he suffered as a result of a

3 In its reply brief, Lake County cites Indiana Department of Transportation v. Sadler, 33 N.E.3d 1187 (Ind. Ct.

App. 2015), arguing that Sheriff Buncich’s decision to terminate Plaintiff’s employment in this case was made

pursuant to a policy that was already in place. However, Sadler is not a § 1983 case and, thus, does not address

Pembaur. Rather, Sadler considers the issue of governmental immunity under the Indiana Tort Claims Act,

analyzing whether the governmental entity had engaged in a discretionary function. Id. at 1191–92.

collision with an automobile driven by an on-duty sheriff’s deputy, and the court held that the

county was not liable for the officer’s actions. 564 N.E.2d at 331, 334 (citing Delk, 503 N.E.2d at

436). In Donahue, the plaintiff filed a state law claim in relation to injuries he sustained as an

arrestee, and the court held that the county was not liable for the tortious actions of the sheriff

department employees. 720 N.E.2d at 1238, 1241 (citing Delk, 503 N.E.2d at 440; Carver, 564

N.E.2d at 334). In Radcliff, the court held that the county was not liable for the claim of false

imprisonment made against the county sheriff by the plaintiff who had been transported to a

mental health center for evaluation for involuntarily commitment but who was released for lack

of probable cause. 627 N.E.2d at 1306 (citing Delk, 503 N.E.2d 436). In Jendrzejczyk, the

plaintiff alleged claims of unreasonable search and seizure, unreasonable use of force, assault,

defamation, and false imprisonment, among others, for the actions of various defendants,

including officers of the sheriff’s department. 2017 WL 3387405, at *1–2. The court held that

the county is a separate entity from the sheriff’s department and is not responsible for the

sheriff’s actions. Id. at *4 (citing Radcliff, 627 N.E.2d at 1306).

Lake County has not explained how the holdings of these cases apply to the instant

§ 1983 claim brought by an employee county police officer for a First Amendment violation.

Lake County has not discussed the cases in light of the state statutes setting forth that county

police officers are employees of the county and that the sheriff has the authority to make final

employment decisions as to those county police officers. In addition, none of these cases

involved a claim of municipal liability under Pembaur.

The only case Lake County specifically cites in its motion in relation to the § 1983 claim

is Argandona, 2007 WL 518799, at *5–6. In Argandona, the court concluded that “the Lake

County Sheriff's Department, when acting in its law enforcement capacity, is neither an arm of

the State nor a mere extension of Lake County. Rather, the Department is a separate municipal

entity and subject to suit under § 1983.” Argandona, 2007 WL 518799, at *5 (emphasis added).

However, in the instant case, Buncich, as sheriff, was not acting in a law enforcement capacity.

Rather, he was making an employment-related decision. Similarly, in its reply brief, Lake

County cites Hebert v. Porter County, Indiana, 2:07-CV-91, 2007 WL 2363835, *4 (N.D. Ind.

Aug. 14, 2007). But Hebert also addresses the actions of sheriff department deputies acting in a

law enforcement capacity and does not involve an employment discrimination claim by a county

police officer nor a claim for municipal liability under Pembaur. Based on the arguments

presented in its briefs, Lake County has not presented authority demonstrating that it is not liable

for the actions of the Sheriff under Pembaur.

As a final matter, Lake County also cites Argandona for its holding that that the

indemnification claim against the county in that case “does not create obligations that require

[the county] to remain a defendant in this matter.” 2007 WL 518799, at *5. Here, the parties’

supplemental briefing [ECF Nos. 73, 76] also goes to the issue of whether Lake County should

remain a defendant based on the indemnification claim. See Hebert, 2007 WL 2363835, at *3 n.2

(N.D. Ind. 2007). Because Lake County remains a defendant liable on the § 1983 claim under

Pembaur, the Court need not reach the issue of whether Lake County should remain in the

litigation based on the indemnification claim.

On the arguments before the Court, the Court denies the motions to dismiss Plaintiff’s

§ 1983 claims as to Lake County and the Sheriff’s Department.

D. Sheriff Buncich—Individual Capacity Claims

Sheriff Buncich argues that the Court should dismiss the individual capacity claims

because he is entitled to absolute immunity from suit for the prosecutorial function of bringing

the charges against Plaintiff before the Merit Board. Plaintiff responds that, because Sheriff

Buncich was not acting in a prosecutorial role but rather was making an employment decision, he

is not entitled to absolute immunity.

“Prosecutors may be entitled to either absolute or qualified immunity from civil liability

under 42 U.S.C. § 1983 for actions undertaken pursuant to their official duties. Absolute

immunity covers prosecutorial functions such as the initiation and the pursuit of a criminal

prosecution, the presentation of the state’s case at trial, and other conduct that is ‘intimately

associated’ with the judicial process.” Mendenhall v. Goldsmith, 59 F.3d 685, 689 (7th Cir.

1995) (quoting Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Imbler v. Pachtman, 424 U.S. 409,

430, 431 n. 33 (1976)). Sheriff Buncich notes that absolute prosecutorial immunity can extend to

government officials performing functions analogous to a prosecutor’s duties. See, e.g., Butz v.

Economou, 438 U.S. 478, 515 (1978) (“We also believe that agency officials performing certain

functions analogous to those of a prosecutor should be able to claim absolute immunity with

respect to such acts.”).

However, in Swetlik v. Crawford, the Seventh Circuit Court of Appeals held that a vote

by a mayor and the Common Council to bring employment related charges was not protected by

absolute prosecutorial immunity. 738 F.3d 818, 824–25 (7th Cir. 2013). In Swetlik, the mayor of

the City of Manitowoc authorized an outside investigation into an incident involving Manitowoc

police detective Swetlik and the chief of police. Id. at 820, 822–23. The investigators’ report

ultimately recommended to the mayor and the Common Council that Swetlik be terminated from

his employment. Id. at 823. The Common Council voted to adopt the recommendation and to

bring termination charges. Id. After the vote, the investigators were told to prepare formal

charges, and, at a subsequent meeting, a majority of the council, including the mayor, voted to

file the charges. Id. In the federal lawsuit brought under § 1983, Swetlik alleged that the mayor

and the members of the Common Council retaliated against him in violation of the First

Amendment by bringing charges against him for his complaints about the chief of police. Id. at

824. The defendants raised the defense of absolute prosecutorial immunity. Id.

The Seventh Circuit rejected the defense, reasoning that “the defendants’ action was an

employment decision, not a decision to bring criminal charges.” Id. The court explained that

“[p]rosecutorial immunity applies to prosecutorial actions that are ‘intimately associated with the

judicial phase of the criminal process.’” Id. (quoting Van de Kamp v. Goldstein, 555 U.S. 335,

341 (2009)). “The immunity’s application depends not on an official’s title but on whether the

official is, at the time, ‘acting as an officer of the court’ and on the action’s ‘relatedness to the

judicial phase of the criminal process.’” Id. (quoting Fields v. Wharrie, 672 F.3d 505, 510 (7th

Cir. 2012); Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th Cir. 1996) (“Absolute immunity is not

limited to government officials with the title of prosecutor or judge; officials performing

‘functionally comparable’ acts in other contexts, such as administrative agencies, are also

accorded absolute immunity.”)). Finally, the court noted that “prosecutors themselves are not

entitled to absolute immunity when they make employment decisions.” Id. (citing Lacey v.

Maricopa County, 693 F.3d 896, 930–31 (9th Cir. 2012)). The court also cited Forrester v.

White, 484 U.S. 219, 229 (1988), which held that a state judge who “was acting in an

administrative capacity when he demoted and discharged” a probation officer was not entitled to

absolute immunity. Swetlik, 738 F.3d at 825.

Indiana Code § 36-8-10-11 provides that “[t]he Sheriff may dismiss, demote, or

temporarily suspend a county police officer for cause after preferring charges in writing and

after a fair public hearing before the board.” Ind. Code § 36-8-10-11(a) (emphasis added). The

act of an Indiana sheriff preferring charges is analogous to the vote by the mayor and the

Common Council in Swetlik “to file the charges.” Swetlik, 738 F.3d at 823. Under Swetlik,

Sheriff Buncich is not entitled to absolute prosecutorial immunity for bringing to the merit board

the charges against Plaintiff as an employee because Sheriff Buncich was engaging in an

employment decision and not a decision to bring criminal charges.

In his brief, Sheriff Buncich cites Balcerzak v. City of Milwaukee, in which the district

court held that a local government official recommending termination of a police officer for

misconduct was entitled to absolute prosecutorial immunity for his role in bringing the charges.

980 F. Supp. 983, 987 (E.D. Wis. 1997) (citing Butz v. Economou, 438 U.S. 478 (1978)).

However, Balcerzak predates the Seventh Circuit decision in Swetlik and also does not discuss

the earlier Supreme Court decision in Forrester that state judges are not entitled to absolute

immunity when acting in an administrative capacity in relation to employment decisions. Sheriff

Buncich also cites cases in which the Seventh Circuit has held that quasi-judicial immunity

applies to those prosecuting attorney disciplinary proceedings; but, again, those cases do not

address an employment decision and, importantly, are in the context of attorney disciplinary

proceedings described as “quasi-criminal” proceedings. See Kissell v. Breskow, 579 F.2d 425,

430 (7th Cir. 1978); Bartoli v. The Attorney Registration & Disciplinary Comm’n of Ill., No. 97

C 3412, 1998 WL 100246, at *3 (N.D. Ill. Feb. 24, 1998), aff’d by unpublished order, 202 F.3d

272 (7th Cir. 1999).

The Court denies Buncich’s motion to dismiss Plaintiff’s claims brought against him in

his individual capacity.

E. Sheriff Buncich—Official Capacity Claims

Buncich seeks dismissal of the claims brought against him in his official capacity on the

basis that they are redundant and duplicative of the claims brought against the Sheriff’s

Department. Indeed, official capacity suits “generally represent only another way of pleading an

action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159,

165–66 (1985) (quoting Monell, 436 U.S. at 690 n. 55). The Supreme Court explained that

“while an award of damages against an official in his personal capacity can be executed only

against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an

official-capacity suit must look to the government entity itself.” Id. at 166.

In response, Plaintiff argues that he has sued Buncich in his official capacity as sheriff in

order to pursue the injunctive relief of reinstatement. However, because the Sheriff’s Department

and/or Lake County “can be sued directly for both damages and injunctive or declaratory relief,

there is no need to sue [the local official] in [his] official capacity in addition to [the] local

government units.” Comer v. Hous. Auth. of City of Gary, Ind., 615 F. Supp. 2d 785, 789 (N.D.

Ind. 2009) (citing Graham, 473 U.S. at 167, n. 14; Schmidling v. City of Chicago, 1 F.3d 494,

495 n. 1 (7th Cir. 1993)). Because Plaintiff has named both Lake County and the Sheriff’s

Department as defendants to his § 1983 claims in this lawsuit, the claims against the sheriff in his

official capacity are duplicative and should be dismissed. The Court notes that Buncich was

removed from office on August 24, 2017, and that Sheriff Oscar Martinez was automatically

substituted in this litigation for the official capacity claims. See Fed. R. Civ. P. 25(d).

Accordingly, the Court grants the Motion to Dismiss as to the claims brought against Oscar

Martinez in his official capacity as Sheriff of Lake County, Indiana.

CONCLUSION

Based upon the foregoing, the Court DENIES Lake County’s Motion to Dismiss Second

Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 36] and GRANTS in part

and DENIES in part the Sheriff Defendants’ Motion to Dismiss Second Amended Complaint

[ECF No. 40]. The Court DISMISSES the claims against Oscar Martinez in his official capacity

as Sheriff of Lake County, Indiana.

SO ORDERED on June 1, 2020.

s/ Theresa L. Springmann

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT