Silich v. Obermiller

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

THOMAS DAVID SILICH, )

)

Plaintiff, )

)

v. ) 2:23CV29-PPS/JEM

)

BRANDON OBERMILLER, )

JAMES WESLEY RICHARDSON, III, )

JOSEPH D. CLEMMONS, )

FRED PAUL WILLIAMS, and )

CITY OF LAKE STATION, INDIANA, )

)

Defendants. )

OPINION AND ORDER

Indiana is one of a number of states that divide counties into townships. A

township trustee, elected by the voters of each township, serves as the township

executive. Ind. Code §36-6-4-2. Among other duties, the township trustee is

responsible for administering township assistance to poor residents of the township,

and maintaining township parks and community centers.1 On July 20, 2021, Thomas

Silich was the Hobart Township Trustee. He brings this lawsuit alleging that his

constitutional rights were violated and various torts were committed against him in

connection with his arrest on that date by a Lake Station police officer, Brandon

Obermiller. Silich contends that Lake Station Police Chief James Richardson, III, Hobart

Township Board member Joseph Clemmons, and Lake Station city council member

Fred Williams “conspired to fabricate false claims against [Silich] to remove [him] from

1 See https://www.in.gov/sboa/files/TWPCH-02-2021.pdf.

office as the Hobart Township Trustee and to cause him public embarrassment.” [DE 1

at ¶10.]

On the date in question, Officer Obermiller allegedly “laid in wait” to see Silich

leave the Hobart Township Trustee office to head home for lunch, then stopped Silich

for speeding (curiously, in the driveway of his own home) and arrested Silich for

operating the motor vehicle while intoxicated. [DE 1 at ¶¶16-21.] All the charges were

later dismissed by the Lake County Prosecutor’s Office, and a Lake County court

ordered the Bureau of Motor Vehicles to rescind the suspension of Silich’s driver’s

license and to expunge from its records any erroneous reference to Silich knowingly or

willingly refusing to submit to a breathalyzer test. [DE 1 at ¶¶24, 25.]

All the defendants have filed motions to dismiss challenging the various causes

of action Silich alleges. One motion is filed by the City of Lake Station, Police Chief

Richardson, and police officer Obermiller. I will refer to them collectively as the Lake

Station defendants. The other motion is filed by defendant Clemmons, a member of the

township board, and defendant Williams, a city council member and an employee of

the township board. I will refer to those two as the Hobart Township defendants.

Motion to Dismiss Standards

A motion under Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the complaint

“to state a claim upon which relief can be granted.” The Supreme Court interpreted the

Rule 12(b)(6) pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),

and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Ruling on a motion under Rule 12(b)(6), I must

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accept the truth of the pleading’s well-pleaded allegations, and draw all inferences in

the light most favorable to the plaintiff. Killingsworth v. HSBC Bank, 5507 F.3d 614, 618

(7th Cir. 2007). The Rule 12(b)(6) standard requires “a claim to relief that is plausible on

its face,” which in turn requires factual allegations sufficient to permit a reasonable

inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at

556.

The Seventh Circuit has described Twombly as establishing “two easy-to-clear

hurdles,” namely that (1) the complaint describe the claim in sufficient detail to give the

defendant fair notice of the claim and the basis for it, and (2) the allegations plausibly

suggest that the plaintiff has a right to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1084

(7th Cir. 2008), quoting Equal Employment Opportunity Commission v. Concentra Health

Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). “Plausibility” in this context does not

empower the court to consider which party’s story should be believed, but only that

“the plaintiff must give enough details about the subject-matter of the case to present a

story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

The Seventh Circuit’s general rule is that after a dismissal under Rule 12(b)(6), a

plaintiff is given at least one opportunity to amend the pleading. Runnion ex rel.

Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510, 519 (7th Cir.

2015). Unless “it is certain from the face of the complaint that any amendment would be

futile or otherwise unwarranted, the district court should grant leave to amend after

granting a motion to dismiss.” Id. (emphasis in original).

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Count I – First Amendment

To prevail on his First Amendment retaliation claim under 42 U.S.C. §1983, Silich

“must prove that (1) he engaged in constitutionally protected speech; (2) the

defendants, as public officials, engaged in adverse conduct against him; and (3) the

defendants were motivated, at least in part, by his protected speech.” Bivens v. Trent,

591 F.3d 555, 559 (7th Cir. 2010). Silich’s says he “engaged in protected speech” and the

defendants engaged in retaliatory conduct, with the intent “to cause Plaintiff to lose his

reelection bid for the position he held as Hobart Trustee.” [DE 1 at 7, ¶¶2, 5.]

The Lake Station defendants argue that the complaint “pleads no facts that allege

that Defendants Richardson and Obermiller had any unlawful motivation to engage in

the facts attributed to them by the Complaint.” [DE 17 at 4.] The Hobart Township

defendants make a similar argument challenging Count I. [DE 24 at 5.] Count I alleges

that Silich’s “advocacy (to include verbal pronunciations) for himself to maintain and

retain the elected position of Hobart Township Trustee addressed matters of public

concern and public interest.” [DE 1 at 7, ¶6.] Further, Count I alleges that “Plaintiff’s

political speech was a significant and motivating factor in Defendants’ material adverse

actions against [Silich].” [Id. at 8, ¶7.] In short, what Silich claims is that the defendants

(all of them) wanted him gone; and so they concocted a plan to have him arrested under

specious circumstances. Their actions were therefore done in retaliation for Silich’s

political speech and with the aim of ending Silich’s tenure as township trustee.

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The Lake Station defendants cite the Seventh Circuit’s holding that “[t]he First

Amendment does not in terms confer a right to run for public office, and this court has

held that it does not do so by implication either.” Bart v. Telford, 677 F.2d 622, 624 (7th

Cir. 1982). Similarly, the Hobart Township defendants argue that an individual’s

interest in running for office, by itself, does not enjoy constitutional protection. [DE 24

at 5.] But Bart cites an earlier decision, Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.

1977), in which retaliation against the plaintiff “because his superiors opposed his

candidacy for political reasons...was held to raise a First Amendment issue.” Bart, 677

F.2d at 624, citing Newcomb, 558 F.2d at 829.

The defendants’ argument disregards the distinction observed in Newcomb,

finding no First Amendment right to seek public office generally, but recognizing First

Amendment protections in “a case where the plaintiff’s candidacy was burdened

because a state official wished to discourage that candidacy in particular,” so as to

discourage the candidate’s political views. Newcomb, 558 F.2d at 829. The distinction,

and the Newcomb decision, are still being observed by other federal courts. See, e.g.,

Spencer v. City of Hendersonville, 487 F.Supp.3d 661, 685 (M.D.Tenn. 2020). Drawing all

inferences from the complaint in Silich’s favor, his allegations are that the defendants

acted together to retaliate against him for his speech in an effort to impair his efforts to

remain the Hobart Township Trustee. The defendants’ argument that there is no right

to be a candidate does not demonstrate that Count I should be dismissed for failure to

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state a First Amendment claim, and defendants otherwise fail to demonstrate that Silich

has not stated a claim for First Amendment retaliation.

Count II – Fourth & Fourteenth Amendments

Silich alleges in Count II that he was “seized and imprisoned” in violation of the

U.S. Constitution. [DE 1 at 9, ¶3.] Although the title of Count II indicates that it asserts

the violation of Silich’s rights under the Fourth and Fourteenth Amendments, it

contains references to political speech and the First Amendment. [DE 1 at 9, ¶3; 10, ¶¶7,

8.] I will nonetheless interpret Count II as focusing on the issue of unlawful seizure

under the Fourth Amendment, which Silich confirms is a correct reading of Count II.

[DE 25 at 2.] The alleged unlawful seizure includes the traffic stop, Silich’s arrest, his

false imprisonment, and an unreasonable blood draw. [DE 1 at 10, ¶8.] The Lake

Station defendants do not challenge Count II in their motion to dismiss.

The Hobart Township defendants argue that Count II “fails to state a claim of

false arrest against Defendants Clemmons and Williams.” [DE 24 at 7.] They cite

Odorizzi v. A.O. Smith Corp., 452 F.2d 229, 232 (7th Cir. 1971), for the proposition that

“giving information to police is insufficient to constitute participation in an arrest.” [DE

24 at 7.] Their contention is that the complaint alleges only that “Clemmons and

Williams provid[ed] information to Chief Richardson and request[ed] that the Lake

Station Police Department investigate Plaintiff.” [Id. (emphasis in original).]

This is an overly narrow reading of Silich’s relevant contentions. The complaint

alleges that Clemmons and Williams “conspired to fabricate false claims against the

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Plaintiff” and that they, joined by Chief Richardson, “engaged in telephone calls

(among other contact) and discourse to cause the false arrest of Plaintiff.” [DE 1 at 4,

¶¶10, 11.] Somewhat repetitively, the complaint goes on to aver that the Hobart

Township defendants communicated with Chief Richardson with a purpose “to ensure

that Plaintiff was arrested and prosecuted so as to disable Plaintiff from a successful re-

election bid,” and that they “engaged” Chief Richardson “to assist in this endeavor.”

[Id. at ¶¶11, 12.] The conduct the complaint alleges is not the innocent provision of

information to the police as was involved in Odorizzi, a case incidentally not about a

constitutional violation, but an Illinois tort.

Forced to acknowledge these broader allegations by Silich, the Hobart Township

defendants argue in their reply that Silich relies on a conspiracy concept that is not

adequately pled. [DE 31 at 7.] This argument in relation to Count II is impermissibly

raised for the first time in the reply. In any event, I don’t find the argument persuasive.

Silich alleges the when, what, how and why of Williams’ and Clemmons’ actions to

cause Silich’s arrest on the basis of knowingly false claims. The allegations are

significantly detailed to give the defendants fair notice of the nature of the claim against

them and to plausibly support the ground for relief. This meets the standard set out by

Goodman v. Clark, 2013 WL 2345914, at *3 (N.D.Ind. July 8, 2013), the case the

defendants principally rely on—requiring an express or implied agreement to deprive

Silich of his Fourth Amendment rights, and an actual deprivation of those rights arising

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from overt acts in furtherance of that agreement. The Hobart Township defendants do

not demonstrate a basis for dismissal of Count II.

Count III – Conspiracy Under 42 U.S.C. §1985

Silich’s complaint purports to assert a conspiracy to interfere with his civil rights

in violation of 42 U.S.C. §1985. All the defendants seek dismissal of this claim, pointing

out that §1985(1) applies only to conspiracies to unlawfully impede a federal officer in

the discharge of his official duties. [DE 17 at 5-6; DE 24 at 7-8.] In response to both

motions, Silich seeks the voluntary dismissal of Count III as to all defendants, [DE 20 at

¶1; DE 25 at ¶3], which of course will be granted.

Count IV – Chief Richardson’s Supervision,

Training and Retention of Officer Obermiller

In Count IV, Silich brings a claim against Chief Richardson under 42 U.S.C. §1983

for his failure to train and to supervise Officer Obermiller, and for retaining Officer

Obermiller on the police force. To hold a municipality liable under §1983 for

inadequate training or supervision requires proof of “deliberate indifference,” meaning

“(1) failure to provide adequate training in light of foreseeable consequences; or (2)

failure to act in response to repeated complaints of constitutional violations by its

officers.” Sornberger v. City of Knoxville, Ill, 434 F.3d 1006, 1029-30 (7th Cir. 2006). See also

City of Canton v. Harris, 489 U.S. 378, 388 (1989). Silich sues Chief Richardson in his

individual capacity. [DE 1 at 2.] To be personally liable for a constitutional violation, a

supervisor must “know about the conduct and facilitate it, approve it, condone it, or

turn a blind eye for fear of what they might see.” Matthews v. City of East St. Louis, 675

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F.3d 703, 708 (7th Cir. 2012), quoted in Kemp v. Fulton County, 27 F.4th 491, 498 (7th Cir.

2022).

Richardson’s liability for Obermiller’s supervision, training or retention requires

more than a showing of negligence, but proof that Richardson “acted purposefully,

knowingly, or with reckless disregard for the consequences” of inadequately

supervising, training or retaining Obermiller. Kemp, 27 F.4th at 498. “In essence, the

defendant must have actual or constructive notice of a problem.” Miranda v. County of

Lake, 900 F.3d 335, 345 (7th Cir. 2018). “Supervisors may be liable under §1983 for failure

to train, but the circumstances are extremely limited....[T]he plaintiff must show that the

defendant knew that his failure to train was likely to lead to constitutional violations.”

Ghashiyah v. Frank, No. 07-C-308-C, 2007 WL 55177455, at *2 (W.D.Wisc. August 1, 2007)

(citing Kitzman-Kelley v. Warner, 203 F.3d 454, 459 (7th Cir. 2000), and Butera v. Cottey, 285

F.3d 601, 605 (7th Cir. 2002)).

Richardson argues that the complaint’s recitation of negative information about

Obermiller, even if known to Richardson, does not support a failure to train or

supervise claim because the allegations don’t indicate that Richardson “had any notice

of constitutional violations previously engaged in by Defendant Obermiller” and could

not establish that Richardson should have reasonably foreseen the sort of wrongdoing

Silich alleges against Obermiller. [DE 17 at 7-8.] Count IV alleges that Richardson knew

that Obermiller had been terminated by the Indiana State Police (but not why), that

Richardson knew or had reason to know that Obermiller lied on his application to Lake

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Station by claiming that he’d resigned from the State Police when he had actually been

fired, that Obermiller had caused a car accident while driving under the influence of

alcohol and his driver’s license had been suspended for three months for “false license

plates” and lack of insurance, that Richardson was aware that Obermiller’s driver’s

license had been suspended, and that Obermiller had worked for multiple police

agencies over a six-year span. [DE 1 at 13, 15, 16, 17, 18.] Richardson contends that

Silich does not “allege Defendant Richardson was aware of any prior behavior of

Defendant Obermiller’s that involved false arrests or propensity to commit false

arrests,” and that district courts “routinely dismiss” failure to train or supervise claims

presenting similar circumstances. [DE 26 at 4.]

Although Silich paints an unflattering portrait of Obermiller’s past behavior and

perhaps even of his character, the allegations would not support a determination that

Richardson knew that Obermiller was likely to engage in constitutional violations of the

types alleged here. A propensity to violate an arrestee’s Fourth Amendment rights is

not shown by the types of sketchy incidents Silich alleges involving motor vehicles and

even, without more, a spotty employment record with other police agencies. The

“deliberate indifference” standard of City of Canton requires “a high degree of

culpability on the part of the policymaker.” Cornfield by Lewis v. Consolidated High School

Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993). The Seventh Circuit has described the

standard as “a requirement that liability be based on a finding that the policymakers

have actual or constructive notice that a particular omission [of training or supervision]

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is likely to result in constitutional violations.” Id. at 1327. See also Williams v. Canrecci,

Cause No. 3:11-CV-47, 2011 WL 2462029, at *6 (N.D.Ind. June 17, 2011).

Silich responds to Richardson’s argument with: “[t]he defendant police chief was

an experienced cop at the time of the traffic stop; therefore, he had to know that his

failure to train was likely to lead to constitutional violations.” [DE 20 at 6.] This

reasoning does not hold up. The pleading of Richardson’s knowledge is not sufficient

to support a claim for failure to train or supervise Obermiller, or for retention of

Obermiller, because what Richardson knew did not suggest it was likely that

Obermiller would violate arrestees’ Fourth Amendment rights. The motion to dismiss

Count IV will be granted.

Count V – Lake Station’s Negligent Supervision,

Training and Retention of Officer Obermiller

The factual allegations of Count V are similar to those underlying Count IV

concerning the failure to train and supervise Officer Obermiller and his retention as a

police officer. But this time the allegations are directed to the City of Lake Station and

Count V is brought as a claim of negligence under Indiana law. Silich maintains that

Lake Station “knew or should have known” that Obermiller was “unfit and

unqualified” to be a police officer, but that Lake Station negligently hired, supervised,

trained and retained Obermiller, later resulting in harm to Silich. [DE 1 at 20.]

The Indiana Supreme Court addressed negligent hiring claims under Indiana

law in Sedam v. 2JR Pizza Enterprises, LLC, 84 N.E.3d 1174 (Ind. 2017), and found that

such a claim is incompatible with a claim that seeks recovery against the employer for

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the same act of the employee on a respondeat superior theory. The Court held that “there

is a line of Indiana precedent spanning nearly five decades holding that an employer’s

admission that an employee was acting within the course and scope of his employment

precludes negligent hiring claims.” Id. at 1178. “Such an admission exposes an

employer to liability for any and all fault assessed to the employee’s negligence, and

thus a negligent hiring claim becomes duplicative since a plaintiff may not recover

twice for the same damage.” Id. Lake Station argues that Count V fails to state a claim

under Indiana law because the complaint alleges that Obermiller was acting within the

scope of his employment. [DE 17 at 8-9, citing DE 1 at 20.]

Silich alleges in Count V that “[a]t all material times relevant to this Complaint,

Defendant Obermiller was acting under the direction and control of Defendant Lake

Station and its police chief (Richardson).” [DE 1 at 20.] But this is an allegation by

Silich that Lake Station has not yet admitted or denied since it has filed a motion to

dismiss in lieu of an answer. Sedam speaks of an employer’s admission, not a plaintiff’s

assertion. Even in the briefs in which it invokes Sedam, Lake Station does not admit that

Obermiller was acting within the scope of his employment as a Lake Station police

officer, and therefore does not benefit from the holding of Sedam. Because Lake Station

has not admitted that Obermiller’s conduct was within the scope of his employment

with the police department, the City does not demonstrate that the Sedam case entitles it

to dismissal of Silich’s negligent supervision, training and retention claim in Count V.

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In addition, courts in Indiana, while discussing the fact that negligent hiring or

retention is a separate cause of action from respondeat superior, have recognized that

“[w]here the issue of respondeat superior has not been admitted, a ‘plaintiff could

theoretically plead both theories of liability in the alternative.’” Davis v. Macey, 901

F.Supp.2d 1107, 1111 (N.D.Ind. 2012), citing Clark v. Avis, Inc., 890 N.E.2d 760, 765

(Ind.Ct.App. 2008). So at this stage of the case, Lake Station’s argument does not

preclude Silich from proceeding with alternative claims even if in the final analysis

Silich cannot recover on all of them. The motion to dismiss will be denied as to Count

V.

Count VI – Battery, Assault & False Imprisonment Under Indiana Law

Silich alleges in Count VI that all the defendants are liable under Indiana tort law

for battery, assault and false imprisonment. Under Indiana law, personal liability of an

individual employee of a government entity would require Silich to “allege that an act

or omission of the employee that cause[d] [Silich’s] loss is: (1) criminal; (2) clearly

outside the scope of the employee’s employment; (3) malicious; (4) willful and wanton;

or (4) calculated to benefit the employee personally.” Ind. Code §34-13-3-5(c). The

Lake Station defendants argue that no tort claim is stated against Chief Richardson or

Officer Obermiller in their personal capacities because the complaint “does not plead

any of the simple statutory factors necessary to bring a claim against an employee of a

public entity.” [DE 17 at 9-10.]2 The Hobart Township defendants make a similar

2 The motion does not address the tort claims as asserted against the city of Lake Station, so

those claims are unaffected.

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argument, noting that the complaint does not allege that Williams’ or Clemmons’

conduct met any of the requirements of §34-13-3-5(c). [DE 24 at 8-9.]

In response, Silich does not cite to any allegations within the complaint that meet

the requirements of Ind. Code §34-13-3-5(c)(1)-(4). Instead, Silich acknowledges that he

“asserts that the course of conduct undertaken by [the individual defendants] flows

from a course of conduct that is not independent of [the] activities that serve the

employer (Lake Station).” [DE 20 at 7; DE 25 at 8.] “Not independent” means

“dependent.” So Silich characterizes his own theory of the case as including that

Richardson’s, Obermiller’s, Clemmons’ and Williams’ actions were taken in service to

their employer. That is quite to the contrary of the statutory element that the individual

defendants’ acts were “clearly outside the scope of [their] employment.” Silich makes it

even more plain: “Plaintiff Silich avers that the individual defendants did act within the

scope of their employment.” [DE 20 at 9; DE 25 at 9.] But Silich also now argues that he

“pleads in the alternative that the officers acted outside of their scope of employment.”

[Id.]

To the contrary, Silich has not in fact pleaded any such thing, and his assertion in

response to the motion does not cite his complaint for any such allegations. Instead,

Silich “offers additional averments” in his opposition brief – that the alleged conduct of

the individual defendants “could be construed as criminal activity,” that it “did involve

conduct outside the scope of employment” and “was malicious, willful, and wanton.”

[DE 20 at 9-10; DE 25 at 10..] Silich maintains that these additional assertions are

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consistent with the existing averments and so can be considered for purposes of the

motion to dismiss, citing Help at Home Inc. v. Medical Capital, L.L.C., 260 F.3d 748, 752-53

(7th Cir. 2001) (a plaintiff may “add [essential facts] by affidavit or brief in order to

defeat a motion to dismiss if the facts are consistent with the allegations of the

complaint”). [DE 20 at 9; DE 25 at 10.]

Although this might generally be true, here we consider a claim for which the

applicable statute expressly requires that certain allegations be made in the complaint,

which also “must contain a reasonable factual basis supporting the allegations.” Ind.

Code §34-13-3-5(c). In this context, given the particularity required by the statute, I find

that the pleading of Count VI is insufficient to support tort claims against defendants

Richardson, Obermiller, Clemmons or Williams. My decision is made easier because

Silich will have an opportunity to re-plead Count VI under the Seventh Circuit’s

general rule that after a dismissal under Rule 12(b)(6), a plaintiff is given at least one

opportunity to amend the pleading. Runnion, 786 F.3d at 519. Count VI will be

dismissed without prejudice as against all the individual defendants.

Count VII – Trespass by Defendant Obermiller

Silich alleges in Count VII that defendant Obermiller committed a trespass under

Indiana law by his entry onto Silich’s private property to effectuate the seizure of Silich.

[DE 1 at 22-23.] The Lake Station defendants’ motion to dismiss treats Count VII

together with Count VI, offering the same argument for the dismissal of each, namely

that Silich’s complaint lacks any of the allegations required by Ind. Code §34-13-3-5(c)

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and asserts that Obermiller acted within (not “clearly outside”) the scope of his

employment. Neither does Silich offer any different argument with respect to Count

VII, the word “trespass” not appearing in his brief. [DE 20.] So the motion with respect

to Count VII will have the same result as Count VI, which will be dismissed without

prejudice.

Count VIII – Stigma-Plus

A procedural due process claim generally requires the deprivation of a

constitutionally protected property or liberty interest, and then consideration of what

process is due. McMahon v. Kindlarski, 512 F.3d 983, 987-88 (7th Cir. 2008). Because

mere defamation “does not deprive a person of liberty protected by the Fourteenth

Amendment...even when the defamation causes serious impairment of future

employment opportunities,” a defamation-based procedural due process claim requires

“stigma-plus.” Id. This concept is a reference to claims that involve harm to a plaintiff’s

“‘good name, reputation, honor or integrity’ in a way that made it ‘virtually impossible

for the employee to find new employment in his chosen field.’” McMahon, 512 F.3d at

988, quoting Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001). Silich’s Count VIII

contains language parroting this standard: “Plaintiff’s ‘good name, reputation, honor

and integrity [were] called into question in a manner that makes it virtually impossible’

for the Plaintiff to be re-elected to office and or to be hired for a job for which an arrest

is an impediment to employment.” [DE 1 at 24, ¶3.]

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But the Seventh Circuit has subsequently made clear that even in the dire

employment circumstances described in McMahon and Townsend, more is required to

succeed on a stigma-plus claim, specifically the distinct alteration or extinguishment of

a right or status previously recognized by state law. Hinkle v. White, 793 F.3d 764, (7th

Cir. 2015), citing Paul v. Davis, 424 U.S. 693, 711 (1976). Examples of this loss of rights or

status include the addition of a plaintiff’s name to a list that legally disqualified him

from purchasing alcoholic beverages in Wisconsin v. Constantineau, 400 U.S. 433 (1971);

suspension of the ability to operate a day care center in Doyle v. Camelot Care Centers,

305 F.3d 603, 617 (7th Cir. 2002); and an academic suspension, expulsion from the Navy

ROTC program, and loss of scholarship in Doe v. Purdue University, 928 F.3d 652, 662-3

(7th Cir. 2019).

The Hobart Township defendants argue that Silich states no stigma-plus claim

because he “fails to allege a change in legal status sufficient to state a claim of

deprivation of occupational liberty.” [DE 24 at 10.] Count VII does not allege any

change in Silich’s legal status. Because Silich alleges no loss of a legally-recognized

right or status he previously held, he fails to state a stigma-plus claim. I also note that

stigma-plus is a procedural due process concept, not a substantive due process

argument, and Count VIII contains no allegations about inadequate procedure or

process that preceded the disclosure of or damage from the stigmatizing information.

Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 502 (6th Cir. 2007), citing Paul v. Davis, 424

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U.S. 693, 710 n.5 (1976). For these reasons, Count VIII will be dismissed for failure to

state a claim.

Because Silich will be given the opportunity to re-plead his stigma-plus claim, I

address other arguments made against Count VIII. The Lake Station defendants

contend that Count VIII fails to state a claim because statements are not actionable

when the disclosure “is protected by privilege.” [DE 17 at 11, citing Austin v. Marion

County Housing Authority, No. 3:17-cv-00005-DRH-SCW, 2017 WL 2533521, at *6 (S.D.Ill.

June 12, 2017).] “Indiana law has long recognized an absolute privilege that protects all

relevant statements made in the course of a judicial proceeding, regardless of the truth

or motive behind the statements.” Eckerle v. Katz & Korin, P.C., 81 N.E.3d 272, 278

(Ind.Ct.App. 2017). Because Silich identifies the stigmatizing statements as made in

“police reports and in court filings,” the Lake Station defendants argue that no

procedural due process claim can be based on the statements. [DE 17 at 11.] The

argument has superficial appeal, but the movants do not provide adequate reasoning or

authority to support the critical leap from state law contexts to federal stigma-plus due

process liability under §1983.

Eckerle is a case about defamation torts under Indiana law, and does not address

the law of “stigma-plus” due process claims. Silich cites Austin as addressing the

interplay of state law privileges and stigma-plus due process claims based on

defamation. The Austin decision does not hold, and cites no authority holding, that a

state law privilege defeats a stigma-plus due process claim. There the U.S. District

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Court for the Southern District of Illinois discusses state law privileges against a

defamation claim, but ultimately decides that because the challenged statements were

legally required to be disclosed pursuant to a state Freedom of Information Act request,

the plaintiff’s due process claim failed because she could not demonstrate that the

defendants’ (non-voluntary) conduct caused the injury to her reputation. Austin, 2017

WL 2533521, at *6.

In their reply, the Lake Station defendants cite more cases to support the

principle their argument requires—that statements made in police reports and court

filings cannot provide the basis for a stigma-plus due process claim. In re Bryant, 4:16-

CV-243-HLM-WEJ, 2017 WL 11518399, at * (N.D.Ga. Aug. 31, 2017), holds that “state

law enforcement officials testifying in judicial proceedings are absolutely immune from

liability under §1983,” citing Broscoe v. LaHue, 460 U.S. 325 (1983). In that 1983 decision,

the Supreme Court considered whether Ҥ1983 authorizes a convicted person to assert a

claim for damages against a police officer for giving perjured testimony at his criminal

trial.” Broscoe, 460 U.S. at 326. The Supreme Court agreed with the Seventh Circuit that

witnesses, including government officials, “are absolutely immune from damages

liability based on their testimony.” Id. The rationale was based on the characteristics of

the judicial process and the need to assure that all participants – judges, advocates, and

witnesses – could perform their roles without fear of civil damages liability. Id. at 335-

336. The Lake Station defendants offer no analysis demonstrating that the same

rationale extends to a police officer’s statements in a police report or probable cause

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affidavit. The burden is obviously on the movant to demonstrate that a claim fails to

demonstrate a plausible basis for relief, but here the Lake Station defendants’ overly

glib and conclusory assertion of their theory for dismissal doesn’t meet that standard.

The other authorities relied on are no more persuasive. The cited portion of

Dolcine v. Hanson, 17-CV-4835 (VEC), 2021 WL 94978, at *4 (S.D.N.Y. Mar. 12, 2021),

does not, as defendants broadly suggest, “recogniz[e] defendants to be immune from

stigma-plus liability for statements in connection with court proceedings.” [DE 26 at 8.]

Instead, the Dolcine court finds the arguments on immunity to be “muddled,” and that

it was “ultimately...unnecessary to wade into the immunity thicket” because the

plaintiff was unable to demonstrate that “his due process rights were violated by

anything Defendants said.” Dolcine, 2021 WL 94978, at *4.

Finally, the district court in Kennedy v. Caruso, No. 3:19-cv-260(VLB), 2021 WL

5415262, at *14 (D.Conn. Nov. 19, 2021), found that statements made to a Family Court

were “not actionable” on a stigma-plus claim because the defendant was “entitled to

absolute immunity for statements made to the Family Court in her role as the [guardian

ad item].” No reasoning or authority is offered, and the court refers only to its prior

decision on a motion to dismiss, which the Lake Station defendants have not cited or

made available. In any event, the context is not analogous to the present cause because

in-court statements made in an adversarial context may present an analysis distinct

from probable cause affidavits and police reports. The Hobart Township defendants’

treatment of the same argument, citing a single case that does not support the broad

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proposition they claim, is as insufficient as the Lake Station defendants’ has been. [DE

24 at 10.] The defendants do not provide adequate legal authority to demonstrate

persuasively that a stigma plus claim cannot be based on statements of the kind alleged

by Silich.

The Hobart Township defendants make one additional challenge to Silich’s

stigma-plus claim. They argue that their contacts with law enforcement requesting that

there be an investigation of Silich are qualifiedly privileged and cannot support the

publication prong of a stigma-plus claim. [DE 24 at 10.] In contrast to Chief Richardson

and Officer Obermiller, Clemmons and Williams suggest that they stand in the position

of citizen-complainants, not law enforcement. But the complaint’s allegations, accepted

as true for purposes of the current motion, are that Clemmons and Williams did not act

as honest citizens reporting activity sincerely believed to be criminal, but instead that

they “conspired to fabricate false claims against the Plaintiff” and to “cause the false

arrest of Plaintiff,” by engaging Police Chief Richardson “to assist in this endeavor.”

[DE 1 at 5, ¶¶10, 11, 12.] Even assuming without deciding that state law privileges

apply in the §1983 stigma-plus context, the allegations against the Hobart Township

defendants would disqualify them from the public interest privilege they invoke,

because they were not acting in good faith and not seeking a legitimate law

enforcement investigation. Kelley v. Tanoos, 865 N.E.2d 593, 600 (Ind. 2007).

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Summary

The motions to dismiss will be denied as to Counts I and II, the claims under the

First and Fourth Amendments. Count III alleging a conspiracy actionable under §1985

will be dismissed with prejudice in light of Silich’s request for voluntary dismissal.

Count IV, a claim only against defendant Richardson for failure to supervise and train

Officer Obermiller and for retaining him, will be dismissed without prejudice, but

Count V, the negligence claim against Lake Station based on the same theories will not.

The tort claims in Count VI will be dismissed as against the individual defendants, as

will the trespass claim in Count VII against Officer Obermiller only. Finally, the stigma

plus claim in Count VIII will be dismissed. For the reasons explained in this opinion,

the claims dismissed without prejudice fail to state a claim upon which relief may be

granted, but Silich will be granted leave to file a First Amended Complaint in which he

attempts to re-plead any of those claims to correct the errors I have identified.

ACCORDINGLY:

The Partial Motion to Dismiss filed by defendants Brandon Obermiller, James

Wesley Richardson, III, and City of Lake Station [DE 16] is DENIED as to Counts I, II,

and V. The motion is GRANTED as to Counts III, IV, VI as against the individual

defendants, VII, and VIII.

The Motion to Dismiss filed by defendants Joseph D. Clemmons and Fred Paul

Williams [DE 23] is DENIED as to Counts I and II, and is GRANTED as to Counts III,

VI, and VIII.

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Plaintiff Thomas David Silich’s request to voluntarily dismiss Count III of his

complaint [DE 20 at ¶1; DE 25 at ¶3] is GRANTED, and Count III is DISMISSED WITH

PREJUDICE.

Plaintiff Silich is granted 30 days in which to file a First Amended Complaint for

the purpose of attempting to correct errors within any of the claims here dismissed

without prejudice.

SO ORDERED.

ENTERED: May 15, 2023. /s/ Philip P. Simon

United States District Judge

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