# LEWIS v. HENDERSON

> District Court, S.D. Indiana · September 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10169480

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARCUS LEWIS, JR. Individually and as )
Natural Father of Marcus Lewis, III, Deceased, )
RALPH LISBY as the Personal Representative of )
the Estate of Ashlynn Lisby, Deceased, )
)
Plaintiffs, )
)
v. ) No. 1:21-cv-01186-SEB-DLP
)
JONATHAN HENDERSON Individually and in )
his official capacity as a police officer, )
CITY OF INDIANAPOLIS, INDIANA, )
)
Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE
PLEADINGS AND REMANDING TO STATE COURT

Following a tragic accident in which an Indianapolis Metropolitan Police Officer,
while driving to work, hit and killed a pregnant woman, the woman's estate and the
baby's father brought two separate suits against the Officer and the City of Indianapolis,
respectively. The two suits were consolidated on our docket, after which Defendants filed
a Motion for Partial Judgment on the Pleadings, seeking to dismiss all the claims against
the Officer as well as all federal claims. As we explain hereafter, the Motion must be
granted in full, which leaves only state law claims pending against the City of
Indianapolis. As to those, we also conclude that it is appropriate for us to relinquish our
supplemental jurisdiction and remand them to state court.
I. FACTUAL BACKGROUND

The well-pleaded factual allegations from both of the First Amended Complaints,
which may or may not be objectively true, are accepted as such, along with all inferences
in favor of Plaintiffs as the non-moving parties. Nat'l Fidelity Life Ins. Co. v. Karaganis,
811 F.2d 357, 359 (7th Cir. 1987). On May 6, 2020, at approximately 9:24 p.m., Marcus
Lewis Jr. and Ashlynn Lisby were walking northbound along the shoulder of State Road
37, also known as Harding Street, in Indianapolis, Indiana. Lewis and Lisby were
returning to the motel where they had been staying, and at the time, Lisby was eight

months pregnant with a child Lewis had sired. Meanwhile, Officer Jonathan Henderson
of the Indianapolis Metropolitan Police Department was driving northbound on Harding
Street approaching the intersection with Thompson Road. Immediately north of the
intersection of Harding Street and Thompson Road, two left turn lanes lead to the on-
ramp of I-465 West, two through lanes allow motorists to continue northward passing

under the 1-465 overpass, and one right turn lane leads to the on-ramp to I-465 East. The
speed limit for vehicles at this location on Harding Street is forty-five miles per hour.
Officer Henderson, traveling in the right through lane, passed through the intersection
of Harding Street and Thompson Road. While traveling at a speed of seventy-eight miles
per hour, Officer Henderson made a lane shift, causing his car to cross over the solid

white line into the right turn lane leading to the I-465 East on-ramp. As he merged onto
the 1-465 East entrance ramp, Officer Henderson crossed the fog line on the right side of
the turn lane, with his vehicle partly on the shoulder on the right side of the road. While
glancing in the rear-view mirror as he merged onto the ramp, Officer Henderson struck
Lisby, who was walking on the shoulder of the road. Lewis, who was walking a few feet
away, witnessed the accident. Officer Henderson's speed was fifty-five miles per hour at

the time his car impacted with Lisby. Officer Henderson did not see Lisby before he
struck her. At the time of the collision, a nearby streetlamp was not illuminated, which
Officer Henderson maintains contributed to the collision.
After the accident, Lisby was transported to Eskenazi Hospital, where she was
pronounced dead. Lewis's child was born alive at Eskenazi via an emergency Cesarian
section but tragically was also pronounced dead at 10:36 p.m. that same evening. The

parties agree that while operating his police vehicle, Officer Henderson was acting within
the course and scope of his employment as a police officer employed by the City of
Indianapolis. Following the collision, the Indianapolis Metropolitan Police Department
prepared an "Indiana Officer's Standard Crash Report" setting forth its conclusion that
"pedestrian's action" was the primary cause of the accident. Docket No. 70, at 5. The

report also stated that none of Officer Henderson's actions contributed to the accident,
though it does not include any mention of the facts that he was speeding, made a lane
shift over a solid line, and was driving partially on the shoulder of Harding Street. Officer
Henderson was not subjected to any discipline or other sanction by the Indianapolis
Metropolitan Police Department.

On August 17, 2020, Lisby's father, Ralph Lisby, as the personal representative of the
Estate of Ashlynn Lisby ("Estate"), filed suit for negligence in Indiana state court against
Officer Henderson and the City of Indianapolis. On May 12, 2021, Lewis filed suit in our
court against Officer Henderson and the City of Indianapolis (collectively,
"Defendants"1), alleging: (1) a 42 U.S.C. § 1983 claim against Officer Henderson
brought on behalf of his prenatal child, (2) a state law wrongful death claim against

Officer Henderson and the City of Indianapolis for the death of his prenatal child, and (3)
a state law negligent infliction of emotional distress claim against Officer Henderson and
the City of Indianapolis for having witnessed the death of his prenatal child. On
December 7, 2021, the Estate filed an amended complaint in state court adding a 42
U.S.C. § 1983 claim. On January 4, 2022, Defendants removed the Estate's suit to our
court, which, as we have previously noted, was consolidated with Lewis's suit into a

single cause of action on February 14, 2022.
On February 24, 2022, Defendants moved for Partial Judgment on the Pleadings,
asserting that, though "[b]oth Plaintiffs have pled proper state law wrongful death claims
for the death of Lisby and the prenatal child, as well as a state law tort claim of negligent
infliction of emotional distress against the City of Indianapolis," (Docket No. 54, at 2),

"the remainder of the claims are improperly pled and should be dismissed." They
specifically seek judgment in their favor on the following grounds: (1) Lewis is not a
proper plaintiff in a § 1983 claim filed on behalf of his prenatal child, (2) Lewis and
Lisby's prenatal child are not legally authorized to bring a § 1983 claim for injuries
sustained in utero, (3) the facts of Plaintiffs' Complaints fail to state a claim to support a

constitutional due process violation against any party, and (4) Officer Henderson is

1 The Indiana Department of Transportation and the State of Indiana were also initially named as
Defendants, but all parties stipulated to their dismissal with prejudice after the Motion for Partial
Judgment on the Pleadings was filed. The court entered an order of dismissal as to these two
Defendants on March 11, 2022. Docket No. 62.
individually immune from suit for any state law torts he may have committed within the
scope of his employment.

On April 19, 2022, Lewis filed his First Amended Complaint which dropped all of his
previously asserted federal claims and dismissed Officer Henderson as a defendant. Thus,
Defendants' Motion for Partial Judgment on the Pleadings is moot as to Lewis's First
Amended Complaint. The claims asserted in the Estate's Complaint remain for resolution
here. Defendants' Motion currently seeks judgment on the following two grounds: (1) the
facts within the Estate's Amended Complaint fail to state a constitutional due process

claim under 42 U.S.C. § 1983 against Officer Henderson; and (2) Officer Henderson is
individually immune from suit for any state law tort he may have committed within the
scope of his employment. "Should this Motion be granted in its entirety," Defendants
explain, "only state law claims would remain, including the Estate’s state law tort claim
under the Wrongful Death Act for the death of Lisby against the City of Indianapolis, and

the claims within Lewis' pending First Amended Complaint would remain untouched."
Docket No. 71, at 2.

II. DISCUSSION AND DECISION
We first address the Estate's negligence claim against Officer Henderson. Because
Officer Duncan was indisputably acting within the scope of his employment at the time
of the collision, the Indiana Tort Claims Act bars the Estate's tort claim asserted against
him personally. Whether the Estate has properly alleged a constitutional violation against

Officer Henderson, the answer is also unavailing as to Plaintiffs: because negligence
claims such as this cannot support a constitutional violation that would give rise to an
award of damages under 42 U.S.C. § 1983, we must dismiss this claim as well. Thus,

only state law claims remain in this litigation against the City of Indianapolis. In our
discretion, we choose to relinquish supplemental jurisdiction over these claims and
remand them to state court.

A. STANDARD OF REVIEW

A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c) is subject to the same standard as a Rule 12(b)(6) motion to dismiss. A party may
move for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedures after the complaint and answer have been filed. "Only when it appears
beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief and
the moving party demonstrates that there are no material issues of fact to be resolved will
a court grant a Rule 12(c) motion." Moss v. Martin, 473 F.3d 694, 698 (7th Cir. 2007).
"Judgment on the pleadings is appropriate when there are no disputed issues of material

fact and it is clear that the moving party," in this case the City of Indianapolis and Officer
Henderson, are "entitled to judgment as a matter of law." Unite Here Local 1 v. Hyatt
Corp., 862 F.3d 588, 595 (7th Cir. 2017). "The court may consider only matters
presented in the pleadings and must view the facts in the light most favorable to the
nonmoving party." Karaganis, 811 F.2d at 359. "The court, however, is not bound by the

nonmoving party's legal characterizations of the facts." Id.
B. NEGLIGENCE CLAIM AGAINST OFFICER HENDERSON
Defendants contend that Officer Henderson is immune from personal suit for any state
law tort claims otherwise actionable under the Indiana Tort Claims Act, which "limit[s]

when a plaintiff may sue a governmental employee personally." Bushong v. Williamson,
790 N.E.2d 467, 471 (Ind. 2003). "If a plaintiff alleges that an employee was acting
within the scope of his employment . . . the plaintiff is barred from bringing a state law
tort claim against the employee personally unless the governmental entity answers that
the employee was acting outside the scope of his employment." Ocasio v. Turner, 19 F.

Supp. 3d 841, 860−61 (N.D. Ind. 2014) (citing Ind. Code §§ 34-13-3-5(b), (c)(2)).
Defendants have not so alleged; indeed, the Estate's negligence claim specifically alleges
that the collision was "directly and proximately caused by the carelessness and
negligence of the Defendant, Jonathan Henderson," and "the Defendant, City of
Indianapolis who is responsible for the actions of Defendant, Jonathan Henderson, an

employee within the course and scope of his employment." Docket No. 66-1, at 3. Rather
than rebut this argument, the Estate, in response to instant Motion, asserted that: "Officer
Henderson was within the course and scope of his employment as a police officer
employed by the City of Indianapolis at the time of the crash." Docket No. 66, at 3. Thus,
the parties agree that Officer Henderson was acting within the scope of his employment

when he struck Lisby. Accordingly, as a matter of law, he is immune from suit as to any
state law tort claims asserted against him individually. See, e.g., Lessley v. City of
Madison, Ind., 654 F. Supp. 2d 877, 902 (S.D. Ind. 2009). The Motion for Partial
Judgment on the Pleadings as to the Estate's negligence claim against Officer Henderson
is granted.

C. § 1983 CLAIM AGAINST OFFICER HENDERSON

The Estate also has asserted a 42 U.S.C. § 1983 claim against Officer Henderson for
allegedly violating Lisby's due process rights guaranteed under the Fourteenth
Amendment of the United States Constitution, which provides, in relevant part, that no
State shall "deprive any person of life, liberty, or property, without due process of law."
U.S. Const. amend. XIV. However, according to well-established precedent, the
Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever
systems may already be administered by the States." Paul v. Davis, 424 U.S 693, 701

(1976). The Due Process Clause is violated by executive action only when it "can
properly be characterized as arbitrary, or conscience shocking, in a constitutional sense."
Collins v. Harker Heights, 503 U.S. 115, 128 (1992). The Supreme Court has
"accordingly rejected the lowest common denominator of customary tort liability as any
mark of sufficiently shocking conduct and [has] held that the Constitution does not

guarantee due care on the part of state officials; liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due process." County of Sacramento
v. Lewis, 523 U.S. 833, 848−49 (1998). "It is, on the contrary, behavior at the other end
of the culpability spectrum that would most probably support a substantive due process
claim; conduct intended to injure in some way unjustifiable by any government interest is

the sort of official action most likely to rise to the conscience-shocking level." Id. at 849;
see also Daniels v. Williams, 474 U.S. 327, 331 (1986) ("Historically, this guarantee of
due process has been applied to deliberate decisions of government officials to deprive a

person of life, liberty, or property.").
Here, the Estate's § 1983 claim seeks to hold Officer Henderson liable for actions
"done willfully, wantonly, and maliciously," that were "reckless," "dangerous,"
"arbitrary," and "shock the conscience." Docket No. 66-1, at 5. We note that these
allegations conflict with the Estate's negligence claim, which it fully incorporated in
support of its § 1983 claim. Id. at 2−4. Even ignoring this inconsistency, the Estate's

"conclusory allegation of recklessness . . . is insufficient to defeat a motion to dismiss."
Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996) (citing Palda v. General Dynamics
Corp., 47 F.3d 872, 875 (7th Cir. 1995)). "For a defendant to be reckless in a
constitutional sense, he must be criminally reckless." Id. "Criminal recklessness—which

is the same as 'deliberate indifference'—is a proxy for intent." Id. (internal citation
omitted). "For this reason, the Supreme Court teaches, the test for 'criminal recklessness'
is subjective, not objective." Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
"Under the subjective standard, it is not enough to show that a state actor should have
known of the danger his actions created." Id. "Rather, a plaintiff must demonstrate that

the defendant had actual knowledge of impending harm which he consciously refused to
prevent." Id. "In other words, the state actor must have sufficient knowledge of the
danger that one can infer he intended to inflict the resultant injury." Id. "A lesser degree
of knowledge does not violate the due process clause." Id.
In Hill v. Shobe, an on-duty Indianapolis police officer who had run a red traffic light,
collided with another vehicle, ultimately killing the passenger. 93 F.3d at 420. Even

though the officer was not responding to a police emergency, he was speeding, and, even
though the incident occurred sometime during nighttime, the officer was driving without
any headlights, emergency lights, or siren. The officer was sued under § 1983 by the
passenger's estate, but the Seventh Circuit concluded that the estate could not
demonstrate the requisite level of criminal recklessness on behalf of the officer,
dismissing the claim on the grounds that "[a]llegations of a public official driving too fast

for the road conditions are grounded in negligence, not criminal recklessness, and
unintended loss of life resulting from a state employee's lack of due care does not
implicate the due process clause." Id. at 421. Under the subjective standard, the appellate
court ruled, the estate was required to demonstrate that the officer was willing to let a
fatal collision occur, which it failed to do by pleading recklessness. "The fact that a

public official committed a common law tort with tragic results fails to rise to the level of
a violation of substantive due process." Id. (citing Daniels v. Williams, 474 U.S. 327, 333
(1986)). The Seventh Circuit also ruled that "motor vehicle accidents caused by public
officials or employees do not rise to the threshold of a constitutional violation actionable
under § 1983, absent a showing that the official knew an accident was imminent but

consciously and culpably refused to prevent it." Id. "It is insufficient to show that a public
official acted in the face of a recognizable but generic risk to the public at large." Id. at
421−22.
Here, the Estate incorporated the following facts into its § 1983 claim: (1) Officer
Henderson made an illegal lane shift to the right lane of State Road 37 in order to enter

the I-465 East on-ramp while traveling at 78 miles per hour, despite posted speed limits
of 45 miles per hour, (2) Officer Henderson had diverted his view from the road when he
crossed onto the shoulder of the road where he struck Lisby, (3) a nearby street light was
not illuminated, which contributed to the collision, and (4) the collision was "directly and
proximately caused by the carelessness and negligence" of Officer Henderson. Docket
No. 66-1, at 3. The Estate included no other factual allegations in its § 1983 claim beyond

the conclusory allegation of recklessness. In response to the Motion for Judgment on the
Pleadings, the Estate argues that "Officer Henderson reasonably knew, as most people do,
that driving at excessive speeds, carelessly and illegally changing lanes, and driving
outside the travel lane in the dark could result in injury to others, including pedestrians or
other motorists." Docket No. 66, at 8. "Even more as a police officer," the Estate

maintains, "Henderson likely knew more than most the potentially deadly consequences
of speeding, careless lane changes, and unsafe driving." Id. "His choices in spite of that
knowledge and experience show that he was willing to let a fatal collision occur." Id. As
the Seventh Circuit has previously explained in addressing similar arguments, "[i]t is
insufficient to show that a public official acted in the face of a recognizable but generic

risk to the public at large." Hill, 93 F.3d at 421−22. It is also insufficient simply to allege
that Officer Henderson should have known of the danger his actions created; for this
claim to survive, the Estate must allege that he had "actual knowledge of impending harm
which he consciously refused to prevent." Id. at 421.
The Estate's reliance on Flores v. City of South Bend is unpersuasive. 997 F.3d 725
(7th Cir. 2021). There, a police officer, in attempting to respond to a routine traffic stop

(despite not having been requested to intervene), drove 78 miles per hour in a 30 mile per
hour zone through a residential area. At another point, the officer drove 98 miles per hour
in a residential area, which was 68 miles an hour and three times more than the posted
speed limit. The officer ran a red light while traveling through an intersection with an
obstructed view and crashed into a car that had been proceeding lawfully, thereby killing
the driver. The Seventh Circuit concluded that driving blind through an intersection at 78

to 98 miles per hour could certainly be viewed by a jury as criminal recklessness. Id. at
730. "The law does not provide a shield against constitutional violations for state actors
who consciously take extreme and obvious risks," and, through his course of action, the
officer "was 'willing to let a fatal collision occur.'" Id. (quoting Hill, 93 F.3d at 421.
However, we do not share the Estate's view that "[t]he same is true here as it is in

Flores." Docket No. 66, at 7. Here, Officer Henderson's conduct is clearly less
outrageous: he was not driving through a residential area at speeds greatly exceeding the
limit, and he was merging onto an on-ramp to a major highway, which is not a place a
driver would ordinarily expect to encounter pedestrians at 9:24 PM. Officer Henderson's
actions sound in negligence, and as such, the Estate has failed to allege a constitutional

violation on that basis. Accordingly, the Motion for Partial Judgment on the Pleadings
must be granted as to the Estate's § 1983 claim, which resolves all the claims brought
against Officer Henderson in this litigation.
D. SUPPLEMENTAL JURISDICTION
The federal supplemental-jurisdiction statute provides that a court "may decline to
exercise supplemental jurisdiction" over state-law claims if the court "has dismissed all

claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "Although the
decision is discretionary, '[w]hen all federal claims in a suit in federal court are dismissed
before trial, the presumption is that the court will relinquish federal jurisdiction over any
supplemental state-law claims.'" RWJ Mgmt. Co., Inc. v. BP Products N. Am., Inc., 672
F.3d 476, 479 (7th Cir. 2012) (quoting Al's Serv. Ctr. v. BP Products N. Am., Inc., 599

F.3d 720, 727 (7th Cir. 2010)). "The presumption is rebuttable, 'but it should not be
lightly abandoned, as it is based on a legitimate and substantial concern with minimizing
federal intrusion into areas of purely state law.'" Id. (quoting Khan v. State Oil Co., 93
F.3d 1358, 1366 (7th Cir. 1996)); see also Huffman v. Hains, 865 F.2d 920, 923 (7th Cir.
1989) ("[R]espect for the state's interest in applying its own law, along with the state

court's greater expertise in applying state law, become paramount concerns.").
The Seventh Circuit has identified circumstances that may rebut the presumption:
(1) the statute of limitations has run on the pendent claim, precluding the
filing of a separate suit in state court; (2) substantial judicial resources have
already been committed, so that sending the case to another court will cause
a substantial duplication of effort; or (3) when it is absolutely clear how the
pendent claims can be decided.

Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir. 2009) (internal
quotation marks omitted). These circumstances do not portend here. A remand of this
case to state court will moot any statute of limitations restrictions.2 Having disposed of
the federal claims via a judgment on the pleadings, "it is difficult to see how 'substantial

judicial resources' have been committed to this case." Id. at 515 (citing Davis v. Cook
County, 534 F.3d 650, 654 (7th Cir. 2008)). "Finally, we are not prepared to say that the
proper resolution of the state-law claims is absolutely clear." Id. Because none of the
adverse consequences of a remand are threatened here, we elect to, in our discretion,
relinquish federal jurisdiction over the supplemental state-law claims and remand the

case to state court.
III. CONCLUSION

Accordingly, Defendants' Motion for Partial Judgment on the Pleadings [Docket No.
53] is GRANTED. With all claims against Defendant Henderson being dismissed, the
Court finds, pursuant to Federal Rule of Civil Procedure 54(b), that there is no just reason
for delay. Accordingly, partial final judgment shall be entered in favor of Defendant
Henderson and against Plaintiffs. Moreover, the court relinquishes its supplemental
jurisdiction over the remaining state law claims, and therefore, REMANDS the case—
both the Estate's claims and Lewis's claims against the City of Indianapolis—to the

Marion Superior Court as Case No. 49D13-2008-CT-027956. See 28 U.S.C. § 1447 (for

2 Even if Lewis's case had not been consolidated with the Estate's claims which were properly
removed from state court, 28 U.S.C. § 1367 supplies "a tolling rule that must be applied by state
courts." Artis v. District of Columbia, 138 S.Ct. 594, 599 (2018). Specifically, the period of
limitations for any claim asserted under our supplemental jurisdiction "shall be tolled while the
claim is pending and for a period of 30 days after it is dismissed unless State law provides for a
longer tolling period." 28 U.S.C. § 1367(d). Thus, Lewis could have separately filed this case in
state court without a statute of limitations problem.
cases removed from state court, "[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.").
IT IS SO ORDERED.

Date: 9/29/2022 Tut Gus Barker
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Eileen Archey
Hensley Legal Group
earchey@hensleylegal.com
Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
carol@bleekedilloncrandall.com
Andrew R. Duncan
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS DUNCAN & MERCHANT, LLP
ard@rkblegalgroup.com
Christopher Andrew Farrington
BLEEKE DILLON CRANDALL ATTORNEYS
drew@bleekedilloncrandall.com
Sarah Jane Graziano
Hensley Legal Group, PC
sgraziano@hirehensley.com
Thomas J. Jarzyniecki, Jr.
KIGHTLINGER & GRAY, LLP (Indianapolis)
tyarzyniecki@k-glaw.com
John F. Kautzman
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS DUNCAN & MERCHANT, LLP
jfk@rkblegalgroup.com
Edward J. Merchant
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS DUNCAN & MERCHANT, LLP
eyn@rkblegalgroup.com
15

Mathew Rayman
OFFICE OF CORPORATION COUNSEL
mathew.rayman2@indy.gov

Laura Walker Swafford
WAGNER REESE, LLP
lswafford@wagnerreese.com

Stephen M. Wagner
WAGNER REESE, LLP
swagner@wagnerreese.com

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169480. Public record. Not legal advice.