Beamon v. Hamed

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ASIA BEAMON, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-506

)

ALA’A HAMED )

)

Defendant. )

OPINION AND ORDER

This matter is before the court on the Motion to Dismiss [DE 24] filed by the defendant,

Ala’a Hamed, on August 17, 2020. For the following reasons, the motion is GRANTED in part

and DENIED in part.

Background

The plaintiff, Asia Beamon, filed this action against the defendant, Ala’a Hamed,

individually, alleging violations of the Civil Rights Act, 42 U.S.C. § 1983, the Fourth and

Fourteenth Amendments to the United States Constitution, and Indiana state law.

On July 27, 2019, the plaintiff was involved in a traffic accident. The defendant, an

Indiana State Police Officer, was called to the scene of the accident. When he arrived, the

defendant asked the plaintiff to submit a breath alcohol test, but she refused. The plaintiff

eventually was taken to a nearby hospital to check for possible injuries caused by the accident.

Once the plaintiff arrived at the hospital, the parties’ versions of events that followed are

vastly different. The plaintiff alleges that she was arrested without a warrant and without

probable cause. She states that the defendant attempted to coerce her into having her blood

drawn but that she refused to allow the blood draw without first seeing a warrant. The defendant

then returned and stated he had a warrant though he never showed it to the plaintiff. The

plaintiff alleges that the defendant and a nurse used unreasonable force in order to obtain the

warrantless blood draw. The plaintiff alleges that defendant used racial slurs and then proceeded

to punch her in the right eye. The punch allegedly fractured her right orbital lobe, causing her

nose to bleed, facial swelling, and “oozing” from her right eye. The plaintiff claims that in an

effort to cover up his misconduct, the defendant transferred her to Lake County Jail without

providing treatment for her eye injury. She was released from the Lake County Jail on July 29,

2019, after the jail confirmed that no charges were filed against her. After her release, the

plaintiff went to the hospital for the injury to her eye and learned that she would need surgery.

As a result of the above described events, on December 30, 2019, the plaintiff filed a

complaint against the defendant. The complaint alleges five violations of 42 U.S.C. § 1983:

excessive force, illegal search, false arrest, denial of medical care, and Fourth Amendment

retaliation; and four Indiana state law claims: indemnification, intentional infliction of emotional

distress, assault, and battery. Formal criminal charges were not filed against the plaintiff until

July 14, 2020, more than six months after this lawsuit commenced.

In lieu of filing an answer, the defendant filed this Motion to Dismiss [DE 24] on August

17, 2020. In support of his motion, the defendant attached four exhibits from the state court: an

information, a probable cause affidavit, an order finding probable cause, and an arrest warrant.

The defendant argues that the complaint should be dismissed because this court lacks subject

matter jurisdiction and the complaint fails to state a claim upon which relief can be granted.

Specifically, the defendant argues that he is entitled to qualified immunity for the § 1983 claims.

In the alternative, and pursuant to the Younger abstention doctrine, the defendant states that the

court should issue a stay until the plaintiff’s state criminal proceedings are concluded. Lastly,

the defendant argues that if the court does dismiss the 42 U.S.C. § 1983 claims, the state law

claims should be dismissed pursuant the Supreme Court’s holding in Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89 (1984).

Discussion

As an initial matter, the plaintiff argues that the defendant’s attachment of the

information, probable cause affidavit, order finding probable cause, and arrest warrant to the

motion to dismiss converts the motion into a motion for summary judgment. In which case, the

defendant’s converted motion is not in compliance with the summary judgment guidelines laid

out in N.D. Ind. L.R. 56-1.

Federal Rule of Civil Procedure 12(d) provides that “if, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under Rule 56.” However, the Seventh

Circuit has recognized a narrow exception to this rule. District courts are entitled to take judicial

notice of outside “matters of public record without converting a motion for failure to state a

claim into a motion for summary judgement” if they are “not subject to reasonable dispute and

either generally known within territorial jurisdiction or capable of accurate and ready

determination through sources whose accuracy cannot be questioned.” General Elec. Capitol

Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997); Ennenga v. Starns, 677

F.3d 766, 773-74 (7th Cir. 2012).

While acceptable outside matters have included public court documents, “courts

generally cannot take judicial notice findings of fact from other proceedings for the truth asserted

therein because these findings are disputable and usually are disputed.” 677 F.3d at 773-74;

Lopez v. Pastrick, 2011 WL 2357829, at *4 (N.D. Ind. June 8, 2011) (internal quotations

omitted); Opoka v. I.N.S., 94 F.3d 392, 395 (7th Cir. 1996); Fedex Ground Package System,

Inc., Employment Practices Litig., 2010 WL 1253891, at *6 (N.D. Ind. Mar. 29, 2010) (finding

that “the court can take judicial notice of filings in other proceedings to establish the fact of such

litigation and related filings”); ABN AMRO, Inc. v. Capital Int’l Ltd., 2007 WL 845046, at *9

(N.D. Ill. March 16, 2007) (“judicial notice is generally not for the truth of the matters asserted

in a court document”). Ultimately, the Seventh Circuit cautions that “courts should strictly

adhere to the criteria established by the Federal Rules of Evidence before taking judicial notice

of pertinent facts.” General Elec. Capitol Corp., 128 F.3d at 1081.

The defendant argues that the narrow exception permitting matters of public record

applies here and therefore the motion does not have to be analyzed as a motion for summary

judgement. While district courts are permitted to take judicial notice of public court documents,

the Seventh Circuit points to the Federal Rules of Evidence as guidance on this issue, and this

court agrees. Federal Rule of Evidence 201 describes the kinds of facts that may be judicially

noticed as follows: “(1) facts that are generally known within the trial court’s discretion; or (2)

can be accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.” “In order for a fact to be judicially noticed under Rule 201(b), indisputability is a

prerequisite.” Mayes v. City of Hammond, Ind., 2006 WL 1765407, at *5 (N.D. Ind. June 21,

2006) (Cherry, Magistrate Judge) (taking judicial notice of a criminal conviction but declining to

take judicial notice of underlying DNA evidence or its validity).

The defendant is seeking to have the court take judicial notice of the pleadings filed in the

criminal case that involves the events which transpired on July 21, 2019. First, there is a

difference between taking judicial notice of pleadings filed and the facts contained in those

documents. Next, the contents of the documents are disputed as represented by the vastly

different versions of events the parties have given in the pleadings associated with this motion.

Also, the defendant is relying on the documents to prove the truth of the facts asserted therein to

support the motion to dismiss. Lastly, the documents themselves are not the type that courts have

taken judicial notice in the past. See Swanigan v. City of Chi., 881 F.3d 557 (7th Cir. 2019)

(taking judicial notice of facts from a prior proceeding within the same case); Estate of Brown v.

Arc Music Group, 523 Fed.Appx. 407, 410 (7th Cir. 2013) (taking judicial notice of a settlement

agreement); Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir. 1995) (taking judicial notice of

facts recited in a plea agreement); Philips Med. Sys. Int’l v. Bruetman, 982 F.2d 211, 215 (7th

Cir. 1992) (taking judicial notice of a default judgment); Ryan v. Phillip Morris USA, Inc., 2007

WL 270119, at *1 (N.D. Ind. Jan. 26, 2007) (taking judicial notice of a probate file). Therefore,

the court declines to take judicial notice of the documents attached to the defendant’s motion to

dismiss. Since the court declines to take judicial notice, the motion will be viewed as a Rule

12(b)(6) motion to dismiss and analyzed only on the contents therein.

The plaintiff has asserted four violations of 42 U.S.C. § 1983: excessive force, illegal

search, false arrest, denial of medical care, and Fourth Amendment retaliation. She also has

alleged four Indiana state law claims: indemnification, intentional infliction of emotional

distress, assault, and battery. As to the § 1983 claims, the defendant argues that he is entitled to

qualified immunity because his actions on July 27, 2019 did not violate “clearly established

constitutional rights.”

The doctrine of qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has

mandated a two-step process for resolving qualified immunity claims in Saucier v. Katz, 533

U.S. 194, 199 (2001). First, whether a constitutional right has been violated on the facts alleged,

and second, assuming a violation is established, whether the right was clearly established at the

time of the alleged violation. 533 U.S. 194 at 200; see Pearson, 555 U.S. at 231 (explaining

“whether the facts alleged show the officer’s conduct violated a constitutional right … must be

the initial inquiry in every qualified immunity case”) (internal quotations omitted).

However, “because a qualified immunity defense so clearly depends on the facts of a

case, a complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity

grounds.” Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018) (internal quotations omitted);

Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). Though, qualified immunity may be

appropriate at the pleadings stage if “the plaintiff asserts the violation of a broad constitutional

right that has not been articulated at the time the violation is alleged to have occurred.”

Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (quoting Jacobs v. City of Chicago,

215 F.3d 758, 765 n.3 (7th Cir. 2000). Since a Rule 12(b)(6) motion normally is based on the

complaint itself, “the plaintiff need only state a claim to relief that is plausible on its face.” Reed,

906 F.3d at 548. Therefore, all the plaintiff must do is “include enough details about the subject

matter of the case to present a story that holds together.” Reed, 906 F.3d at 548 (internal

quotations omitted).

All that has been filed in this case is the complaint and this motion to dismiss. Therefore,

closely analyzing the two-step process for resolving the defendant’s qualified immunity defense

is premature. The court is left with determining whether the plaintiff’s § 1983 claims are

plausible on their face. The only facts before the court are those alleged in the complaint, which

the court is “obliged to accept as true.” Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir.

1994).

Federal Rule of Civil Procedure 12(b)(6) allows for a complaint to be dismissed if it

fails to “state a claim upon which relief can be granted.” Allegations other than those of fraud

and mistake are governed by the pleading standard outlined in Federal Rule of Civil Procedure

8(a)(2), which requires a “short and plain statement” to show that a pleader is entitled to relief.

See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The Supreme Court

clarified its interpretation of the Rule 8(a)(2) pleading standard in a decision issued in May 2009.

While Rule 8(a)(2) does not require the pleading of detailed allegations, it nevertheless demands

something more “than an un-adorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In order to survive a Rule 12(b)(6) motion, a

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570); Cincinnati Life Ins., 722 F.3d at 946 (“The primary purpose of [Fed.R.Civ.P. 8

and 10(b)] is to give defendants fair notice of the claims against them and the grounds supporting

the claims”) (quoting Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011)); Peele v. Clifford

Burch, 722 F.3d 956, 959 (7th Cir. 2013) (explaining that one sentence of facts combined with

boilerplate language did not satisfy the requirements of Rule 8); Joren v. Napolitano, 633 F.3d.

1144, 1146 (7th Cir. 2011). This pleading standard applies to all civil matters. Iqbal, 556 U.S.

at 684.

The decision in Iqbal discussed two principles that underscored the Rule 8(a)(2) pleading

standard announced by Twombly. See Twombly, 550 U.S. at 555 (discussing Rule 8(a)(2)’s

requirement that factual allegations in a complaint must “raise a right to relief above the

speculative level”). First, a court must accept as true only factual allegations pled in a

complaint—“[t]hreadbare recitals of the elements of a cause of action” that amount to “legal

conclusions” are insufficient. Iqbal, 556 U.S. at 678. Next, only complaints that state

“plausible” claims for relief will survive a motion to dismiss. Iqbal, 556 U.S. at 678. If the

pleaded facts do not permit the inference of more than a “mere possibility of misconduct,” then

the complaint has not met the pleading standard outlined in Rule 8(a)(2). Iqbal, 556 U.S. at

678–79; see Brown v. JP Morgan Chase Bank, 2009 WL 1761101, at *1 (7th Cir. June 23,

2009) (defining “facially plausible” claim as a set of facts that allows for a reasonable inference

of liability). The Supreme Court has suggested a two-step process for a court to follow when

considering a motion to dismiss. First, any “well-pleaded factual allegations” should be assumed

to be true by the court. Next, these allegations can be reviewed to determine if they “plausibly”

give rise to a claim that would entitle the complainant to relief. Iqbal, 556 U.S. at 678–79;

Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010). Reasonable inferences from well-

pled facts must be construed in favor of the plaintiff. Murphy v. Walker, 51 F.3d 714, 717 (7th

Cir. 1995); Maxie v. Wal-Mart Store, 2009 WL 1766686, at *2 (N.D. Ind. June 19, 2009)

(same); Banks v. Montgomery, 2009 WL 1657465, at *1 (N.D. Ind. June 11, 2009) (same).

42 U.S.C. § 1983 provides that “a person may not be deprived of any constitutional right

by an individual acting under color of state law … authoriz[ing] claimants to sue persons in their

individual capacities who are alleged to have violated such rights.” Lewis v. Downey, 581 F.3d

467, 472 (7th Cir. 2009). Fourth Amendment claims of excessive force are analyzed using an

objective reasonableness standard. Plumhoff v. Rickard, 572 U.S. 765 (2014). In order to state a

valid excessive force claim, the plaintiff must “identify the specific conduct of the officer that is

alleged to be excessive and unreasonable; the fact of an injury while in police custody is not

enough.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 864 (7th Cir. 2010). The plaintiff has

established a plausible claim for excessive force by alleging that the defendant used objectively

unreasonable force and caused her harm. Specifically, she claims that the defendant punched her

in the face while she was handcuffed to the hospital bed because she objected to having her

blood drawn without first being shown a warrant, causing a fracture to her right orbital lobe.

Next, the plaintiff alleges that the defendant falsely arrested her as he did not have

probable cause to do so and no warrant was obtained. Specifically, she alleges that immediately

before and as she was being arrested, she was not violating any laws, rules, or ordinances. The

Fourth Amendment to the U.S. Constitution provides in relevant part “the right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” U.S.

Const. amend. IV. For the same reasons, the plaintiff alleges that the defendant illegally

searched her because her blood was drawn without probable cause or her consent, and before a

warrant was obtained. Therefore, the plaintiff has adequately established claims for false arrest

and illegal search.

The plaintiff also claims that the defendant committed Fourth Amendment retaliation

when he punched her in the eye for exercising her right to be free from an unreasonable search,

refusing to submit to a blood draw without a warrant or probable cause. The plaintiff cites the

test employed in Gomez v. Randle, 680 F.3d 859 (7th Cir. 2012), for determining whether

retaliation occurred. However, that test is for First Amendment retaliation. The court notes that

the plaintiff altered the wording of the test to make it more general than just involving the First

Amendment, but still cited the Seventh Circuit. Therefore, for purposes of this claim, the court

will assume that the plaintiff is raising a First Amendment retaliation claim.1

In order to adequately plead a First Amendment retaliation claim, the plaintiff must show

that she (1) engaged in an activity protected by the First Amendment; (2) she suffered a

deprivation that would likely defer First Amendment activity in the future; and (3) the First

Amendment activity was at least a motivating factor in the defendant’s decision to take the

retaliatory action. Gomez v. Randle, 680 F.3d at 866. The plaintiff argues that she has stated a

valid claim for retaliation because she alleges that she was punched in the face for not submitting

to a blood draw without first seeing a warrant. The activity that the plaintiff was engaged in,

declining to have her blood drawn without a warrant or probable cause, is constitutionally

protected, however it is not protected by the First Amendment. The plaintiff’s claim for

retaliation is insufficiently plead and, frankly, far reaching. Accordingly, count V of the

complaint is DISMISSED.

The last § 1983 violation that the plaintiff alleges is denial of medical care. Challenges to

conditions of confinement are governed by the Fourth Amendment. See King v. Kramer, 763

F.3d 635, 639 (7th Cir. 2014). In order to establish a Fourth Amendment denial of medical care

claim, the plaintiff must show that the defendant’s failure to provide medical care to her was

objectively unreasonable and it caused her harm. Williams v. Rodriguez, 509 F.3d 392, 401 (7th

Cir. 2007); Rosen v. King, 913 F.Supp.2d 666, 676 (N.D. Ind. 2012). The plaintiff claims that

she was at the hospital when the defendant punched her in the eye, therefore obtaining medical

treatment would have been entirely minimal. However, the defendant acted objectively

1 The Seventh Circuit dismissed a claim alleging a due process violation where the defendant police officer

fabricated evidence and withheld exculpatory evidence in an effort to detain the plaintiff pending trial because the

alleged violation was one of the Fourth Amendment and the plaintiff only “add[ed] a due process claim to the mix

just to get another bite at the apple.” Young v. City of Chicago, __ F.3d __, 2021 WL 403899 (7th Cir. 2021).

unreasonably when he caused her to be taken from the hospital, where she could have been

treated, to Lake County Jail where she did not receive any treatment. The plaintiff claims that

because of the defendant’s denial of medical care, she had a fracture that went untreated for

longer than necessary, required multiple surgeries to correct, and put her at risk for lifelong

impairment. Accordingly, the plaintiff has sufficiently plead a claim for Fourth Amendment

denial of medical care.

In addition to the federal claims, the plaintiff has also alleged four Indiana state law

claims: indemnification, intentional infliction of emotional distress (IIED), assault, and battery.

The defendant argues that since he is entitled to qualified immunity as to the § 1983 claims, the

remaining state law claims should be dismissed for lack of subject matter jurisdiction. However,

as discussed above, the defendant is not entitled to qualified immunity as to the § 1983 claims,

therefore this court has supplemental jurisdiction over the plaintiff’s state law claims. See 28

U.S.C. § 1367(a).

The plaintiff filed a claim for indemnification pursuant to Ind. Code § 34-13-4-1, asking

that the state of Indiana be found liable for any judgment that the plaintiff obtains, as well as

attorney fees and costs. The state of Indiana is not a party to this case. Therefore, this claim is

not valid. Nonetheless, had Indiana been named in the lawsuit, the claim would still not stand.

Ind. Code § 34-13-4-1 states as follows:

If a present or former public employee … is or could be subject to

personal civil liability for a loss occurring because of a noncriminal

actor omission within the scope of the public employee's employment

which violates the civil rights laws of the United States, the

governmental entity (when the governmental entity defends or has the

opportunity to defend the public employee) shall, subject to IC 34-13-

3-4, IC 34-13-3-14, IC 34-13-3-15, and IC 34-13-3-16, pay:

(1) any judgment (other than for punitive damages) of the

claim or suit; or

(2) any judgment for punitive damages, compromise, or

settlement of the claim or suit if:

(A) the governor, in the case of a claim or suit against

a state employee; or

(B) the governing body of the political subdivision, in

the case of a claim or suit against an employee of a

political subdivision;

determines that paying the judgment for punitive damages,

compromise, or settlement is in the best interest of the governmental

entity. The governmental entity shall also pay all costs and fees

incurred by or on behalf of a public employee in defense of the claim

or suit.

Ind. Code § 34-13-4-1. But, it also states that “this chapter shall not be construed as … a waiver

of the eleventh amendment to the Constitution of the United States; [or as] consent by the state

of Indiana or its employees to be sued in any federal court …” Ind. Code. 34-13-4-3. The

Eleventh Amendment guarantees that “an unconsenting [sic] State is immune from suits brought

in federal courts by her own citizens as well as by citizens of another State.” Board of Regents

of Univ. of Wis. System v. Phoenix Intern. Software, Inc., 653 F.3d 488, 457 (7th Cir. 2011)

(quoting Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). For these reasons, count VI is

DISMISSED.

Under Indiana law, in order to state a claim for IIED, the plaintiff must show that the

defendant (1) engaged in extreme and outrageous conduct that (2) intentionally or recklessly (3)

caused (4) severe emotional distress to another. Branham v. Celadon Trucking Services, Inc.,

744 N.E.2d 514, 523 (Ind. App. 2001). The plaintiff claims that the defendant’s conduct on July

27, 2019, arresting and searching her without a warrant, punching her in the eye, and denying

medical care, was extreme and outrageous, exceeding all bounds of human decency. The plaintiff

claims that the defendant performed these actions with the intent of causing the plaintiff severe

emotional distress or with the knowledge of the high probability that the conduct would cause

such distress. Therefore, the plaintiff claims the defendant’s conduct was the direct and

proximate cause of her severe emotional distress which included loss of sleep, mental anguish,

and excruciating physical pain and emotional suffering. Accordingly, the plaintiff has stated a

valid claim for IIED pursuant to Indiana law.

Next, the plaintiff claims that the defendant assaulted her when he intentionally placed

her in reasonable apprehension of receiving offensive bodily contact which actually and

proximately caused her injuries. Under Indiana law, an “assault is effectuated when one acts

intending to cause an imminent apprehension of a harmful or offensive contact with another

person,” while battery “is the intentional harmful or offensive contact.” Sheehy v. Brady’s This

Is It, 2013 WL 3319684, at *8 (N.D. Ind. July 1, 2013) (citing Raess v. Doescher, 883 N.E.2d

790, 794 (Ind. 2008) and Knight v. Indiana Ins. Co., 871 N.E.2d 357, 362 (Ind.Ct.App.2007)).

While the plaintiff does not specify, it is safe to assume that the assault and battery claims stem

from the defendant punching the plaintiff in the nose because the plaintiff failed to comply with

the blood draw. However, there are no facts alleged that show that the plaintiff knew or was in

apprehension of physical contact immediately before the defendant punched her in the nose. For

that reason, the count VIII is DISMISSED entirely, but the battery claim still stands as the

defendant allegedly punched the plaintiff. See Sheehy, 2013 WL 3319684, at *8 (N.D. Ind. July

1, 2013) (finding that the plaintiff did not state a claim for assault because she did not allege that

she knew or was in apprehension that the defendant was going to grab her arm, but she did state

a claim for battery as the intentional harmful contact did occur). Lastly, in both her battery and

assault claims, the plaintiff alleges that the “[d]efendant State is sued in this count pursuant to the

doctrine of respondent superior.” As discussed above, Indiana is not a party to this lawsuit.

Therefore, count IX is DISMISSED as to the state of Indiana only.

As a final matter, the defendant asks that the case be stayed under Younger v. Harris,

401 U.S. 37 (1971). Younger represents one of the so-called abstention doctrines based upon

federalism and the comity federal courts must show for the state courts. Under Younger, a

federal court cannot enjoin a pending state criminal proceeding except under very narrow

circumstances. For Younger to apply, the plaintiff in the federal case must be the defendant in

the state criminal case. Younger also has been extended to state administrative proceedings

which are quasi criminal in nature. That is not the case here. See generally Clark v. Henninger,

2000 WL 968044, at *2 (7th Cir. 2000) (citing State of Ind. V. Haws, 131 F.3d 1205, 1210 (7th

Cir. 1997)); Crenshaw v. Supreme Court of Ind., 170 F.3d 725, 728 (7th Cir. 1999); Majors v.

Engelbrecht, 149 F.3d 709, 712 (7th Cir. 1998); Herzberg v. State of Ind., 2005 WL 1653993, at

*2 (N.D. Ind. July 1, 2005). Younger does not apply to a § 1983 claim brought by a defendant

in a state criminal case challenging the facts surrounding her arrest.

Frequently in a § 1983 case where the state criminal case is pending, the plaintiff raises a

Fifth Amendment objection to being deposed. The court can address that claim if a discovery

dispute arises. A case cannot be stayed based on speculation.

Based on the foregoing reasons, the Motion [DE 24] is GRANTED in part and

DENIED in part. The court DISMISSES Count V of Complaint; Count VI of the Complaint;

Count VIII of the Complaint; and Count IX of the complaint against the State of Indiana.

ENTERED this 22nd day of February, 2021.

/s/ Andrew P. Rodovich

United States Magistrate Judge