BIDDLE v. PERTORIUS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MARK E. BIDDLE, )

)

Plaintiff, )

)

v. ) No. 1:21-cv-02660-TWP-KMB

)

CUSHINGBERRY, )

)

Defendant. )

ORDER DENYING PARTIAL MOTION TO DISMISS

This matter is before the Court on Defendant Cushingberry's ("Officer Cushingberry")

Partial Motion to Dismiss Plaintiff's state-law claims pursuant to Federal Rule of Civil Procedure

12(b)(6) and the Indiana Tort Claims Act (ITCA). (Dkt. 78). Plaintiff Mark Biddle's ("Biddle")

Second Amended Complaint asserts claims under the Eighth Amendment and Indiana torts of

assault, battery, and negligence. (Dkt. 69). For the following reasons, the motion is denied.

I. Legal Standard

Rule 12(b)(6) allows a defendant to move to dismiss a complaint, or part of a complaint,

that fails to "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When

deciding a motion to dismiss under Rule 12(b)(6), the Court accepts as true all factual allegations

in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550

F.3d 632, 633 (7th Cir. 2008).

The complaint must contain a "short and plain statement of the claim showing that the

pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the United

States Supreme Court explained that the complaint must allege facts that are "enough to raise a

right to relief above the speculative level." 550 U.S. 544, 555 (2007). Although "detailed factual

allegations" are not required, mere "labels," "conclusions," or "formulaic recitation[s] of the

elements of a cause of action" are insufficient. Id. "[I]t is not enough to give a threadbare recitation

of the elements of a claim without factual support." Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d

599, 603 (7th Cir. 2009). The allegations must "give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests." Twombly, 550 U.S. at 555. Stated differently, the complaint

must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere

& Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be facially

plausible, the complaint must allow "the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,

550 U.S. at 556).

II. Facts

On July 27, 2021, Biddle retrieved his sack lunch from the dining hall. Dkt. 69 at ¶¶ 8, 10.

He was prescribed a lunch specific to his dietary needs but was given a standard sack lunch. Id. at

¶ 11. Biddle informed the inmate distributing the lunches of the mistake and handed his

identification card through the window. Id. at ¶ 12.

Officer Cushingberry yelled at Biddle from across the dining hall and ordered him to return

to his housing unit. Id. at ¶ 13. Officer Cushingberry approached Biddle and demanded his

identification card. Id. at ¶ 14. When Biddle replied that he had given his card to the kitchen worker,

Officer Cushingberry pinned him against a window. Id. at ¶¶ 14–15.

While Biddle was pinned against the window, the kitchen worker placed his lunch and

identification card on a nearby ledge. Id. at ¶ 17. Biddle attempted to pick them up and return to

his housing unit as Officer Cushingberry instructed. Id. at ¶ 18. As Biddle turned to leave, Officer

Cushingberry kicked him in the leg, causing him to fall and hit his head on the wall. Id. at ¶ 19.

Biddle suffered serious injuries as a result, and Officer Cushingberry offered no assistance. Id. at

¶¶ 19–20.

III. Analysis

Officer Cushingberry argues exclusively that he is immune from Biddle's state-law claims

under the ITCA, which provides in part that "[a] lawsuit alleging that an employee acted within

the scope of the employee's employment bars an action by the claimant against the employee

personally." Ind. Code § 34-13-3-5(b). However, the ITCA also states that a suit may proceed

against a government employee in his individual capacity if it alleges "that an act or omission of

the employee" was "malicious" or "willful and wanton." Ind. Code §§ 34-13-3-5(c)(3), (c)(4). The

second amended complaint's allegations that Officer Cushingberry pinned Biddle against a

window, kicked him, caused him to fall and hit his head, and then offered no assistance—all under

circumstances that did not require any use of force at all—support a reasonable inference that his

conduct was malicious or willful and wanton.

Indeed, Officer Cushingberry's motion to dismiss implies that the complaint supports a

reasonable inference of malice or willful wantonness. Officer Cushingberry does not move to

dismiss Biddle's Eighth Amendment claims, which are synonymous with allegations of malice and

wantonness. See, e.g., Gregg v. Georgia, 428 U.S. 153, 173 (1976) (Under the Eighth Amendment,

a "punishment must not involve the unnecessary and wanton infliction of pain."); Estelle v.

Gamble, 429 U.S. 97, 104 (1976) ("[D]eliberate indifference to serious medical needs of prisoners

constitutes the 'unnecessary and wanton infliction of pain.'") (quoting Gregg, 428 U.S. at 173).

Officer Cushingberry's brief devotes only three sentences to the ITCA's exceptions but

appears to contend that § 34-13-3-5(b) offers absolute immunity to a government employee for

acts within the scope of his employment—even for conduct that is malicious, willful and wanton,

or otherwise within the scope of § 34-13-3-5(c):

Any attempt by Plaintiff to use the exceptions to Indiana Code 34-13-3-5(b)

contained in Indiana Code 34-13-3-5(c) to avoid dismissal of the state law claims

is futile. Plaintiff alleges that Mr. Cushingberry acted with actual malice and was

"willful and wanton." (Dkt. 69 at ¶ 31). But this interpretation of the ITCA has been

foreclosed by the Seventh Circuit’s decision in Ball v. City of Indianapolis, 760 F.3d

636, 645 (7th Cir. 2014). See Doe v. Gray, No. 3:20-CV-129 DRL-MGG, 2020 WL

3868702, at *2 (N.D. Ind. July 8, 2020) (citing Cantero v. Indiana, 2018 WL

5961725 (N.D. Ind. Nov. 13, 2018) (Miller, J.) ("[e]ven if that is a reasonable

interpretation of Ind. Code § 34-13-3-5(c), the court of appeals has foreclosed it")).

Dkt. 79 at 5.

Biddle responds that Officer Cushingberry interprets Ball too broadly, and the Court agrees.

Ball did not hold that a state actor is absolutely immune from suit in his individual capacity

for conduct within the scope of his employment. Rather, the Seventh Circuit in Ball acknowledged

the ITCA's scope-of-employment immunity and considered in dictum that the scope-of-

employment immunity may be absolute: "We are less concerned with the adequacy of Ball's factual

allegations . . . than with the question of whether Jones is amenable to suit at all on these claims.

Under the Indiana Tort Claims Act, there is no remedy against the individual employee so long as

he was acting within the scope of his employment." 846 F.3d at 645. Ultimately, though, the

Seventh Circuit left the question unresolved and found state tort claims properly dismissed for the

simpler reason that, on appeal, "Jones' claim of immunity under the [ITCA] . . . has gone

unanswered." 760 F.3d at 644–45.

In short, Ball shows some support for Officer Cushingberry's interpretation of the ITCA.

But that support is found only in dictum and does not "foreclose" Biddle's state-law claims as

Officer Cushingberry contends.

Other decisions of the Seventh Circuit and Indiana's federal courts also stop short of

resolving the immunity issue in Officer Cushingberry's favor. Ball cited Julian v. Hanna, 732 F.3d

842 (7th Cir. 2013), which discussed immunity under the ITCA, but not § 34-13-3-5(b)'s scope-

of-employment immunity or § 34-13-3-5(c)'s exceptions. Mr. Cushingberry cites two Northern

District of Indiana cases that interpret Ball as extinguishing all individual-capacity claims based

on actions within the scope of the defendant's employment, regardless of whether the exceptions

apply. See dkt. 79 at 5. But those decisions do not bind this Court, and they do not stand alone.

Indeed, post-Ball rulings in this Court and the Northern District have interpreted malicious or

willful-and-wanton conduct as exceptions to the ITCA's scope-of-employment immunity. See, e.g.,

Johnson v. Galipeau, No. 3:21-cv-00337-DRL-MGG, 2022 WL 504539, at *7 (N.D. Ind. Feb. 18,

2022) (citing Ball, 760 F.3d at 645);1 Mitchum v. City of Indianapolis, No. 1:19-cv-02277-DLP-

JPH, 2021 WL 2915025, at *15 (S.D. Ind. July 12, 2021);2 Wayne v. City of Lake Station, No. 2:17-

cv-00476-TLS-JEM, 2020 WL 405675, at *5 (N.D. Ind. Jan. 24, 2020).3

Finally, the Indiana Court of Appeals has interpreted § 34-13-3-5(c) as an exception to

§ 34-13-3-5(b)'s scope-of-employment immunity:

In general, a plaintiff may not maintain an action against a government employee

if that employee was acting within the scope of his employment. IND. CODE § 34–

13–3–5(a).4 To sue a government employee personally, the plaintiff "must allege

that an act or omission of the employee that causes a loss is: (1) criminal; (2) clearly

1 "Mr. Johnson's claim of battery falls outside the protections of the ITCA because he advances facts that

plausibly establish, at least at this early pleading stage, that Officer Brown's conduct was willful and

wanton. Mr. Johnson alleges Officer Brown pushed him while handcuffed into a concrete pillar, threw him

onto his bunk, and twisted his wrists. This factual basis reasonably supports Mr. Johnson's allegation that

Officer Brown's conduct was willful and wanton."

2 "These disputed facts precluded summary judgment on qualified immunity grounds, and the same analysis

holds true here. A reasonable factfinder could conclude that Officer Groce's conduct was willful and wanton

and, thus, summary judgment is denied on this issue."

3 "The Plaintiff argues that she complied with Indiana Code § 34-13-3-5(c) in making this allegation, and

the Defendants fail to reply to this argument. . . . Thus, the Defendants have not demonstrated that the ITCA

requires that the state law claims be dismissed against Detective Gulley."

4 Feldhake cites § 34-13-3-5(a), which offers a similar scope-of-employment immunity to a "member of a

board, a committee, a commission, an authority, or another instrumentality of a governmental entity." But

Feldhake was a lawsuit against IDOC employees, and the discussion appears to center on § 34-13-3-5(b).

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

wanton; or (5) calculated to benefit the employee personally." I.C. § 34-13-3-5(c).

Feldhake v. Buss, 36 N.E.3d 1089, 1093 (Ind. Ct. App. 2015) (emphasis added); see also Reed v.

White, 103 N.E.3d 657, 660 (Ind. Ct. App. 2018) ("[T]he State is correct that a government

employee is immune from liability if the alleged conduct occurred within the scope of his

employment," but "there was no basis in any IDOC policy for White and Chaney to have

confiscated the crosses," and [t]he complaint is sufficient under Indiana Code Section 34—13-3-

5(c) to require White and Chaney to respond thereto."); Rightsell v. Indiana State Police, No. 1:19-

cv-04927-TWP-DML, 2021 WL 2686152, at *8 (S.D. Ind. June 30, 2021) (dismissing claim

because plaintiff "failed to meet [the] strict pleading standard" of § 34-13-3-5(c)).

In short, judicial interpretations of the ITCA's scope-of-employment immunity are not

uniform. Officer Cushingberry relies on dictum from Ball, which does not resolve the matter in

his favor. The "assertion of immunity" under the ITCA "is an affirmative defense," Reed, 103

N.E.3d at 660, and Mr. Cushingberry has not carried his burden of demonstrating that it applies in

this instance. This ruling does not preclude Officer Cushingberry from raising ITCA immunity as

a defense at summary judgment. Accordingly, the motion to dismiss must be denied.

IV. Conclusion

Officer Cushingberry's Partial Motion to Dismiss, dkt. [78], is DENIED. Defendant will

have fourteen days, see Fed. R. Civ. P. 12(a)(4)(A), to file an amended answer or notice that his

previous answer is unaffected by this ruling.

IT IS SO ORDERED.

Date: 3/11/2024 ( ae attan Vanct

Hon. Tan¥a Walton Pratt, Chief Judge

United States District Court

Southern District of Indiana

Distribution:

MARK E. BIDDLE

917 N Harrison St.

Rushville, IN 46173

Gustavo Angel Jimenez

INDIANA ATTORNEY GENERAL

gustavo.jimenez@atg.in.gov

Brandon J. Kroft

CASSIDAY SCHADE LLP

bkroft@cassiday.com

Erica Lee Sawyer

INDIANA ATTORNEY GENERAL

Erica.Sawyer@atg.in.gov