BOWLING v. CANTRELL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DAMON BOWLING, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-01196-JMS-DML

)

ERIC CANTRELL, et al. )

)

Defendants. )

Order Granting in Part and Denying in Part Defendants' Motion to Dismiss

Plaintiff Damon Bowling filed this 42 U.S.C. § 1983 action on March 25, 2019, raising

excessive force, failure to protect, unreasonable seizure, and state law tort claims based on events

that occurred in March 2017. Dkt. 11. In August 2019, Mr. Bowling filed a motion to add another

defendant, which the Court denied. Dkt. 34. After receiving several extensions of time, Mr.

Bowling filed a second amended complaint on April 28, 2020.1 Dkt. 63.

The second amended complaint identified three new defendants and asserted two additional

claims. Id. The Court screened the second amended complaint pursuant to 28 U.S.C. § 1915A and

allowed the following claims to proceed: (1) Eighth Amendment excessive force claims against

Eric Cantrell, Steve Bills, Terry Combs, and Joe Oliver; (2) an Eighth Amendment failure to

protect claim against Michelle Dudley; (3) a Fourth Amendment unreasonable search claim against

Mr. Cantrell; (4) state law tort claims for assault, battery, and false imprisonment against Ms.

Dudley, Mr. Cantrell, Mr. Bills, Mr. Combs, and Mr. Oliver; (5) an Eighth Amendment deliberate

1 Mr. Bowling submitted his first amended complaint in February 2020. Dkt. 47. The Court did

not accept this proposed amended complaint because it did not name as defendants the individuals

identified in the original complaint and did not include the claims originally asserted against those

individuals. Dkt. 52. The Court gave Mr. Bowling a deadline to file a second amended complaint.

Id.

indifference to a serious medical need claim against David Hornsby; and (6) a state law medical

malpractice claim against Mr. Hornsby. See dkt. 66.

Now before the Court is a motion to dismiss filed by the defendants. Dkt. 70. They contend

that the second amended complaint is untimely as to Mr. Combs, Mr. Oliver, and Mr. Hornsby,

that Mr. Bowling has failed to state a claim upon which relief can be granted, that the defendants

are entitled to qualified immunity, and that Mr. Bowling has failed to comply with Federal Rule

of Civil Procedure 8.2 Dkt. 70 at 3. Mr. Bowling has not responded to the motion to dismiss.

I. Applicable Law

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim for

"failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a

motion to dismiss, a complaint need only "contain sufficient factual matter, accepted as true, to

"state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the sufficiency

of a complaint, the Court must accept all well-pleaded facts as true and draw all permissible

inferences in the plaintiff's favor. See Tucker v. City of Chicago, 907 F.3d 487, 491 (7th Cir. 2018).

II. Analysis

A. Statute of Limitations

Defendants Mr. Combs, Mr. Oliver, and Mr. Hornsby argue that the claims against them

should be dismissed because they are barred by the statute of limitations. Dkt. 70 at 5-7. Dismissal

is appropriate on statute of limitations grounds where the plaintiff's claims are "indisputably time-

2 In the motion to dismiss, the defendants identify several additional claims that were not identified

in the entry screening Mr. Bowling's second amended complaint. See dkt. 70 at 3-4. Because only

the claims identified in the screening entry dated May 11, 2020, are proceeding, see dkt. 66, the

Court will not address the additional claims identified by the defendants.

barred." Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005); see also Ennenga v. Starns, 677 F.3d

766, 773 (7th Cir. 2012) (same).

Actions brought under § 1983 use the statute of limitations and tolling rules that states

employ for personal-injury claims. In Indiana, the applicable statute of limitations period is two

years. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Ind. Code § 34-11-2-4. Mr.

Bowling first named Mr. Combs, Mr. Oliver, and Mr. Hornsby as defendants in the second

amended complaint, which was filed April 28, 2020, and concerns events that occurred in March

2017. Dkt. 63. Thus, all claims against Mr. Combs, Mr. Oliver, and Mr. Hornsby are barred by the

statute of limitations.

Although an amended complaint may relate back to the date of the original complaint, see

Fed. R. Civ. P. 15(c), a district court must make two inquiries before allowing relation back, see

Joseph v. Elan Motorsports Tech. Racing Corp., 638 F.3d 555, 559 (7th Cir. 2011). The first of

those inquiries is "whether the defendant who is sought to be added by the amendment knew or

should have known that the plaintiff, had it not been for a mistake, would have sued him instead

or in addition to suing the named defendants." Id. at 559-60. The second inquiry is "whether, even

if so, the delay in the plaintiff's discovering his mistake impaired the new defendant's ability to

defend himself." Id. at 560.

Mr. Bowling has not responded to the motion to dismiss. Therefore, there is no evidence

that the newly added defendants—Mr. Combs, Mr. Oliver, and Mr. Hornsby—knew or should

have known that Mr. Bowling would have sued them in addition to the other defendants if not for

his mistake. Additionally, Mr. Bowling has not refuted the argument that these defendants were

prejudiced by Mr. Bowling's failure to name them as defendants prior to expiration of the statute

of limitations. Mr. Bowling has therefore not satisfied his burden of demonstrating that the second

amended complaint relates back to the timely-filed complaint. See Irvin v. City of Chicago, No. 07

C 1207, 2007 WL 3037051, *4 (N.D. Ill. Oct. 15, 2007) ("But it is the plaintiff's burden to

demonstrate that the amendment relates back to a timely-filed complaint."). All claims against

Terry Combs, Joe Oliver, and David Hornsby are therefore dismissed as barred by the statute of

limitations.

B. Qualified Immunity

Mr. Cantrell, Mr. Bills, and Ms. Dudley argue that certain claims against them should be

dismissed because they are entitled to qualified immunity. See dkt. 70 at 16-17. "Because a

qualified immunity defense so closely depends 'on the facts of the 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) (quoting Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)). The motion

to dismiss is denied insofar as the defendants contend that they are entitled to qualified immunity

at this stage of the proceedings. The defendants may re-assert this defense once there has been

factual development of the allegations in Mr. Bowling's second amended complaint.

C. Failure to State a Claim

Mr. Cantrell, Mr. Bills, and Ms. Dudley also argue that many of Mr. Bowling's claims

should be dismissed for failure to state a claim upon which relief can be granted. Dkt. 70 at 7-16.

Many of the defendants' arguments are based on assertions that need factual development. See,

e.g., dkt. 70 at 12-13 (asserting that Mr. Bowling's arrest was supported by probable cause). On a

motion to dismiss, the Court must accept all well-pleaded facts as true and draw all permissible

inferences in Mr. Bowling's favor. Tucker, 907 F.3d at 491.

As set forth in the screening entry dated May 11, 2020, Mr. Bowling has alleged facts

sufficient to state Eighth Amendment claims and state tort law claims for assault, battery, and false

imprisonment against Mr. Cantrell, Mr. Bills, and Ms. Dudley. He has also alleged sufficient facts

to state a Fourth Amendment unreasonable search claim against Mr. Cantrell. The motion to

dismiss is denied with respect to these claims. The defendants may seek judgment as a matter of

law once all parties have had an opportunity to conduct discovery.

D. Federal Rule of Civil Procedure 8

Finally, Mr. Cantrell, Mr. Bills, and Ms. Dudley seek dismissal of Mr. Bowling's claims

against them because he allegedly has not complied with the requirement in Federal Rule of Civil

Procedure 8 that pleadings contain "a short and plain statement of the claim showing that the

pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dkt. 70 at 17-18. They assert that it is "difficult

for [them] to know how to respond" because the claims and parties "have evolved so many times

throughout the life of the case." Id. at 18.

The second amended complaint, dkts. 63 and 64, is the operative pleading in this action,

and the defendants were notified of such in the screening entry, see dkt. 66. Holding Mr. Bowling

to a less stringent standard because he is proceeding pro se, see Perez v. Fenoglio, 792 F.3d 768,

776 (7th Cir. 2015), the Court concludes that the second amended complaint is not unintelligible

and gives the defendants the notice to which they are entitled. Although Mr. Bowling repeats

factual allegations, the second amended complaint consistently outlines the facts and clearly

identifies legal theories. This is not a situation where dismissal under Rule 8 is warranted. See

Crenshaw v. Antokol, 206 F. App'x 560, 563-64 (7th Cir. 2006) (finding no abuse of discretion

where district court dismissed 35-page complaint under Rule 8 because it contained an "abundance

of confusing language and vexing references to other irrelevant material"). The defendants' motion

to dismiss is denied on this ground.

I. Conclusion

The defendants’ motion to dismiss, dkt. [70], is granted in part and denied in part. It is

granted to the extent all claims against Terry Combs, Joe Oliver, and David Hornsby are

dismissed as barred by the statute of limitations. It is denied insofar as the Eighth Amendment

claims and state law tort claims for assault, battery, and false imprisonment shall proceed against

Mr. Cantrell, Mr. Bills, and Ms. Dudley. Mr. Bowling's Fourth Amendment unreasonable search

claim shall also proceed against Mr. Cantrell.

Counsel for defendants Mr. Cantrell, Mr. Bills, and Ms. Dudley shall have through August

13, 2020, to file an Answer to the second amended complaint.

The clerk is directed to terminate Terry Combs, Joe Oliver, and David Hornsby as

defendants on the docket. No partial final judgment shall issue as to the claims resolved in this

Order.

IT IS SO ORDERED.

Date: 7/14/2020 ~ Lane Monat Sta

(Hon. Jane Magnus-Stinson, Chief Judge

United States District Court

Southern District of Indiana

Distribution:

DAMON BOWLING

201157

Fayette County Jail

123 W. 4th St.

Connersville, IN 47331

Katelyn H. Juerling

NORRIS CHOPLIN SCHROEDER

kjuerling@ncs-law.com

Bruce L. Kamplain

NORRIS CHOPLIN & SCHROEDER LLP

bkamplain@ncs-law.com

Bradley J. Wombles

NORRIS CHOPLIN & SCHROEDER

bwombles@ncs-law.com