VanDalsen v. Roswarksi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

JENNIFER VAN DALSEN, )

)

Plaintiff, )

)

v. ) Cause No. 4:23-CV-015-PPS-JEM

)

CARRIE COSTELLO, et al., )

)

Defendants. )

OPINION AND ORDER

This case relates to the profoundly sad death of an individual named Alexander

Van Dalsen. His mother, Jennifer Van Dalsen, filed a pro se complaint alleging

deprivation of her civil rights, in violation of 42 U.S.C. § 1983, based on the failure of

local law enforcement to investigate the death of her child. [DE 1.] I dismissed her initial

complaint for failure to state a claim, and Van Dalsen has since filed her amended

complaint. [DE 25; DE 26.] She now asserts claims against several new defendants who

work for the Tippecanoe County Coroner, Tippecanoe County Sheriff’s Office, and the

Lafayette Police Department, who investigated her son’s death and determined the

manner of death was suicide rather than homicide. [DE 26.] The defendants have all

moved to dismiss the amended complaint for failure to state a claim. [DE 37; DE 41;

DE 43.]

For the reasons explained below, Van Dalsen fails to assert facts forming a

plausible claim for violation of her constitutional rights. And if she did, the defendants

would be entitled to qualified immunity on her claim, because any such right was not

clearly established at the time of the alleged violations. As explained below, because it

appears Van Dalsen will be unable to address these problems with another round of

pleading, further leave to amend would be futile and therefore the action will be

dismissed with prejudice.

Background

Van Dalsen’s initial complaint asserted § 1983 claims against Tony Roswarski

(Mayor of the City of Lafayette), Patrick Flannelly (Chief of Police of the Lafayette

Police Department), Robert Goldsmith (Sheriff of Tippecanoe County), and Carrie

Costello (Tippecanoe County Coroner), in their official capacities. [DE 1.] More

specifically, she claimed that these four individuals failed to investigate the suspicious

death of her son because he had previous mental health struggles and identified as

transgender. Id. at 3. After responding to the family’s home on February 9, 2021, Van

Dalsen claimed that certain unidentified officers, detectives, and the Deputy Coroner

who responded to the scene “knew” that the circumstances of her son’s death were

“suspicious.” But after identifying him at the scene, they allegedly “changed [the cause

of] death to suicide without a proper investigation, simply because he had prior mental

health struggles and was transgender.”1 Id. at 4 (emphasis added).

1 As a result, Ms. Van Dalsen claimed that she spent two years independently investigating the

matter, incurring expenses to pay for body camera footage and police reports and lost wages due to

missing time at work, and that she has been unable to properly grieve the death of her child. [DE 1 at 4.]

As relief, she requested an order requiring “better training for all police officers and all [d]eaths to be

properly investigated,” including by means of an “outside agency review” if necessary, as well as

$600,000 in monetary damages for pain and suffering, lost wages, and recovery of attorney fees and costs.

Id. at 5. Van Dalsen further demanded that all “documents/videos/pictures” from the underlying

investigation be turned over to her “unedited.” Id.

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I noted that Van Dalsen failed to allege any facts tying Roswarski, Flannelly,

Goldsmith, or Costello to the investigation at the heart of her claims. [DE 25 at 4.] While

these individuals were all alleged to have played supervisory roles for the government

agencies in question, that fact alone cannot support liability under 42 U.S.C. § 1983; and

the complaint clearly omitted critical details about what they (or others more directly

involved in the investigation) had done to violate Van Dalsen’s rights. Id. The Federal

Rules provide that leave to amend should be “freely given,” and it was not “certain

from the face of the complaint that any amendment would be futile or otherwise

unwarranted,” so I granted Van Dalsen an opportunity to amend her complaint. See

Fed. R. Civ. P. 15(a)(2); Barry Aviation Inc. v. Land O'Lakes Mun. Airport Comm’n, 377 F.3d

682, 687 & n.3 (7th Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). I did so,

however, while noting the significant challenges Van Dalsen would need to address in

re-pleading her § 1983 claims – namely, how any of the defendants violated her rights

secured by the Constitution and laws of the United States; and if so, how such a right

was “clearly established,” such that the defendants could be held liable for money

damages under the doctrine of qualified immunity. [DE 25 at 5–11.]

In her amended complaint [DE 26], Van Dalsen has dropped Roswarski,

Flannelly, and Goldsmith as defendants. In addition to Coroner Costello, she names ten

new individual defendants. These new individuals are: Megan Keafer, Jeffrey Webb,

and Jeffrey Tislow (officers and detectives with the Tippecanoe County Sheriff’s Office);

Evan Ledman (a Deputy Coroner with the Tippecanoe County Coroner’s Office);

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Natalie Lovett, Bryan Landis, Heath Provo, Jacob Daubenmeier, and Daniel Long

(officers, detectives, and a lieutenant in the Lafayette Police Department); and finally,

she names Dr. Darin L. Wolfe (a physician who does not appear to be affiliated with any

governmental agency). It is not clear from the amended complaint whether all of the

defendants are being sued in their official capacities or individual capacities. Id. What’s

more, the amended complaint does not provide a cohesive distillation of what took

place, in what order, and who was involved in each phase of the investigation. But

understanding that documents filed pro se are to be construed liberally, I have done my

best below to piece together the events described in the amended complaint.

On February 2, 2021, Van Dalsen claims she reported her son Alex missing and

officers of the Tippecanoe Sheriff’s Department responded a few hours later.

Defendants allegedly failed to issue a “Silver Alert” (which she claims Deputy Keafer

could have initiated, but did not), leading to a delay in locating Alex’s body, which was

eventually located a week later, on February 9. [DE 26 at 1–2.] Van Dalsen

acknowledges that after an investigation, the manner of death was officially ruled a

suicide, based on the location of the weapon and “findings on Alex’s phone.” Id. at 8.

But she claims that the “relevant factors were not thoroughly evaluated,” and thus takes

issue with various steps the defendants did or did not take in the investigation.

Initially, she claims that upon responding to the 911 call, Deputy Webb “had

quite the attitude about having to be there,” and suggested that Van Dalsen’s report of a

missing person was similar to a wellness check that had occurred a year earlier. Id. at

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2–3. In Van Dalsen’s view, Deputy Webb was dismissive of her concerns because of a

prior encounter Deputy Webb had with her and her son. Id. at 3. She further claims that

after Lafayette police got involved, Detective Lovett appeared on the scene but did not

make contact with Alex’s friends and family or note “any type of investigation on

behalf of LPD” in her investigation report. Id. at 5. Although Van Dalsen claims there

was evidence of vehicles that were stuck in the snow near where Alex’s body was

found, the officers who responded to the scene did not collect evidence such as foot

prints and tire tracks, or otherwise canvas the area. They did attempt to recover a shell

casing, but were unable to “recover one from the area.” Id. at 4.

Van Dalsen also makes mention of body-worn camera footage from the scene

where Alex’s body was recovered. [DE 26 at 4.] Officer Provo’s camera shows three

individuals going toward the trail where Alex was found deceased, and the officer

asked them where they were going; but he did not follow up to ask if they knew

anything about Alex’s body. Officer Daubenmeier can allegedly be overheard on tape

providing his opinion on what had happened. He speculated that “[t]hey placed him

here, he was killed somewhere else, that is my guess.” Officer Landis is also allegedly

overheard agreeing with him. Id. Officer Daubenmeier can then be overheard telling

another officer that this is a homicide. Id.

Van Dalsen further claims that it took several days for Detective Tislow to get

assigned to the case, and that Detective Tislow conducted a search on Alex’s cell phone.

However, she takes issue with the sufficiency of the search, as she claims it was

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conducted only on the period Alex was missing, not on the critical period leading up to

the point he went missing.[DE 26 at 3.]

The complaint proceeds to assert that Lafayette Police Department officers failed

to follow a policy pertaining to investigation of “suspicious death[s],” under which such

deaths are considered a homicide until a reasonable determination is made otherwise

and the detective division is so notified. Id. Officers allegedly located a 9mm handgun

under Alex’s body at the scene, but Van Dalsen claims “no testing was done on it” to

determine if it had been recently fired or to collect other forensic evidence. Id. She also

asserts that unnamed officers transported Alex’s body in the back of a department-

issued pickup truck, and that in the process evidence “could have been” lost. Id.

The balance of the amended complaint targets alleged failings on the part of the

County Coroner’s office. Van Dalsen asserts that Deputy Coroner Ledman made

findings in a “narrative” that were inconsistent with a later autopsy, and that while his

notes state that he would follow up with Alex’s therapist, there is no evidence this was

ever done. [DE 26 at 5.] As for Coroner Costello, the complaint baldly asserts that she

“would have agreed to the lack of [a] complete autopsy,” and attempts to pin various

alleged failures on the part of Deputy Coroner Ledman on his supervisor by dint of her

leadership position. Id. at 8. Finally, Van Dalsen has named another medical

professional, pathologist Darin Wolfe MD, as a defendant. The sole mention of Wolfe is

that he “would have agreed to the lack of [a] complete autopsy.” Id. It appears that

Wolfe has no professional affiliation with either Tippecanoe County or the City of

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Lafayette; it’s entirely unclear what relationship he had (if any) with Van Dalsen, her

son, or the investigators on Alex’s case.

As relief, Van Dalsen has dropped her request for an injunction and simply seeks

$3 million in damages for lost wages, expenses of her independent investigation into

her son’s death, and related emotional stress and trauma. [DE 26 at 10.]

Discussion

I begin with a brief discussion of the applicable standards governing my decision

making. Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move

for dismissal if the complaint fails to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(1), 12(b)(6). To avoid dismissal under Rule 12(b)(6), a claim for

relief must be “plausible on its face.” Proft v. Raoul, 944 F.3d 686, 690 (7th Cir. 2019)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility requires

the plaintiff to plead sufficient “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Taha v.

Int’l Brotherhood of Teamsters, Local 781, 947 F.3d 464, 469 (7th Cir. 2020) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)). The Seventh Circuit has explained that the plaintiff

must plead facts that “suggest a right to relief that is beyond the speculative level,”

which requires alleging “enough details about the subject-matter of the case to present a

story that holds together.” Sevugan v. Direct Energy Servs., LLC, 931 F.3d 610, 614 (7th

Cir. 2019); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

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I am further guided by the principle that a document “filed pro se is to be

liberally construed, and a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quotation marks and internal citations omitted). Although I must

give liberal construction to a pro se plaintiff’s complaint, “it is also well established that

pro se litigants are not excused from compliance with procedural rules.” Pearle Vision,

Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008).

Van Dalsen asserts her claims under 42 U.S.C. § 1983, which codifies a cause of

action for deprivation of constitutional rights “under color of state law” committed by a

“person.”2 Courts have limited the scope of actions arising under § 1983 in various

ways. Defendants assert that the amended complaint fails to allege a deprivation of Van

Dalsen’s rights, and that it fails to allege various defendants’ personal involvement in

the alleged deprivation of her rights; and that even if the amended complaint did meet

these hurdles, they are entitled to dismissal of the claims under the doctrine of qualified

immunity.

Initially, the statute provides a cause of action to redress the violation of

federally secured rights by a person acting under color of state law. Burrell v. City of

Mattoon, 378 F.3d 642 (7th Cir. 2004). In parsing such claims, I am guided by the bedrock

principle that “[r]ather than acting as a source of rights, § 1983 serves as a vehicle for

2 As noted above, there is no suggestion in the complaint that Dr. Wolfe took any actions “under

color of state law,” such that he may be liable under 42 U.S.C. § 1983. In any case, Van Dalsen’s claim

against Dr. Wolfe would fail for the independent reasons addressed below.

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‘vindicating federal rights elsewhere conferred.’” Rossi v. City of Chicago, 790 F.3d 729,

734 (7th Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386, 393–94 (1989)). To state a

claim, a plaintiff must allege a violation of rights secured by the Constitution and laws

of the United States, and must show that a person acting under color of state law

committed the alleged deprivation. See generally West v. Atkins, 487 U.S. 42 (1988). In

other words, at the very first step of the analysis, I must determine whether Van Dalsen

plausibly alleges that she has been deprived of a right secured by the Constitution or

laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979).

I am deeply sympathetic to Ms. Van Dalsen’s loss. But even assuming as true that

the named defendants were sloppy in how they conducted the investigation and

autopsy that resulted in ruling Alex’s death a suicide rather than a homicide, there is

simply no basis to conclude that such conduct runs afoul of her constitutional rights.

This is not a case seeking vindication of Alex Van Dalsen’s rights – his estate is not a

party to the action. And as with the first round of briefing, Ms. Van Dalsen has failed to

present any authority suggesting that a right she possesses was plausibly violated based

on the circumstances alleged. For this reason, her claims are doomed to fail.

The Supreme Court has observed that the Constitution “generally confer[s] no

affirmative right to governmental aid, even where such aid may be necessary to secure

life, liberty, or property interests of which the government itself may not deprive the

individual.” DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189,

196 (1989). The Seventh Circuit has cited DeShaney for the principle that there is no

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“constitutional right to have the police investigate [a plaintiff’s] case at all, still less to

do so to his level of satisfaction.” Rossi, 790 F.3d at 735 (under DeShaney, “mere

inactivity by police does not give rise to a constitutional claim,” and “the operative

question is not whether [plaintiff’s] case would have been better had the police

conducted a worthy investigation, but whether their failure to do so limited his ability

to obtain legal redress to such degree that it constituted a denial of judicial access”).

At a high level of generality, the Supreme Court has acknowledged that the First

and Fourteenth Amendments protect “the right of individuals to pursue legal redress

for claims which have a reasonable basis in law and fact.” Vasquez v. Hernandez, 60 F.3d

325, 328 (7th Cir. 1995) (citing Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741

(1983); Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984)). As a corollary,

where law enforcement conducts a “cover-up” or “clear failure to investigate,” such

conduct may so limit an individual’s ability to obtain legal redress that it amounts to a

denial of “the right to court access.” Rossi, 790 F.3d at 734–35. See also Vasquez, 60 F.3d at

328 (“[W]hen police officers conceal or obscure important facts about a crime from its

victims rendering hollow the right to seek redress, constitutional rights are

undoubtedly abridged.”). Vasquez and Rossi reflect that only a very narrow set of

circumstances involving egregious failures in law enforcement investigations that

amount to a complete denial of a plaintiff’s right to judicial access may support a claim

for deprivation of rights under § 1983. And, of course, neither of these cases involved

claims made directly by parents, based on deficient investigations involving their kin.

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Accordingly, these authorities simply cannot be read to support a claim for deprivation

of Ms. Van Dalsen’s rights, as opposed (if at all) to those of her decedent son, who was

the subject of the investigation.3

Given the opportunity to amend her complaint to provide additional facts

potentially supporting a plausible theory of constitutional injury, Van Dalsen falls far

short. Read in a favorable light, her amended complaint contains allegations that

various officers and the Deputy Coroner may have cut corners or were undisciplined in

their approach. But such claims suggest negligence, not intentional wrongdoing

calculated to deny Van Dalsen the truth about what happened to her son.

In response, Van Dalsen asserts that “Alex and his family” possess “a right to the

same level of investigation that a non-transgender person with no previous mental

health struggles receives.” [DE 39 at 5.] This really speaks past the salient point. What

matters is whether Ms. Van Dalsen can plausibly assert that the named defendants have

violated her rights. The complaint makes little mention of any animus the individuals

involved in the investigation had toward her or her son based on his transgender

identity, and mere conclusions do not make out a colorable basis to infer that anything

these individuals did was motivated by animus against transgender persons. Moreover,

3 For completeness, I note that the circuit has tossed out due process claims brought by parents

based on a purported right to associate with their decedent child. Russ v. Watts, 414 F.3d 783 (7th Cir.

2005). In Russ, a college student was shot and killed by a Chicago police officer. The Seventh Circuit

affirmed dismissal of his parents’ § 1983 claims based on an asserted due process right to “the society and

companionship of their son,” holding that “[u]nder any standard, finding a constitutional violation based

on official actions that were not directed at the parent-child relationship would stretch the concept of due

process far beyond the guiding principles set forth by the Supreme Court.” Id. at 789–90. There is no

indication that the underlying circumstances involved state action directed at interfering with Van

Dalsen’s relationship with her son.

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Van Dalsen fails to contend whatsoever with the foregoing authorities. As discussed,

they reflect that the right she appears to assert here—the right to have state officials

conduct an investigation into her son’s death more to her liking—is not protected by the

Constitution. And to the extent it was, there is no reason to think that she, as a third

party not directly harmed by the alleged failings in her son’s death investigation, may

assert it in her personal capacity.

For the foregoing reasons, I find that the amended complaint fails to state facts

that make out a plausible violation of Van Dalsen’s rights secured by federal law or the

Constitution, as required to state a claim under 42 U.S.C. § 1983. Even if I were

persuaded that she could identify a constitutionally protected right or interest, and

assuming that there were facts in the complaint suggesting that the defendants violated

it under the circumstances described in the amended complaint, there is no question

that such a constitutional right or interest was not clearly established at the time of the

defendants’ alleged violations.4 For this additional reason, the defendants are immune

from suit.

Van Dalsen was given an opportunity to amend her complaint. While she

provided additional details about the circumstances surrounding the investigation of

her son’s death, given the complaint’s core deficiencies, I have no doubt that any further

4 Under the doctrine of qualified immunity, state and local government officials are shielded from

liability for money damages claims “for actions taken while performing discretionary functions, unless

their conduct violates clearly established statutory or constitutional rights of which a reasonable person

would have known.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1022 (7th Cir. 2000) (emphasis added). A

constitutional right is clearly established when “it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Est. of Escobedo v. Martin, 702 F.3d 388, 404 (7th Cir. 2012).

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amendment would be futile. See Always Towing & Recovery, Inc. v. City of Milwaukee, 2

F.4th 695, 707 (7th Cir. 2021) (district court may deny leave to amend when amendment

would be futile); Arazie v. Mullane, 2 F.3d 1456, 1464 (7th Cir. 1993) (court need not

accept amended complaint where it is apparent that it fails to cure defects identified in

original complaint). The dismissal will therefore be with prejudice. See Bausch v. Stryker

Corp., 630 F.3d 546, 562 (7th Cir. 2010) (noting Rule 15 requires “that leave to amend be

granted at least once when there is a potentially curable problem with the complaint or

other pleading” (emphasis added)).

ACCORDINGLY:

For the reasons explained in this order, the motions to dismiss [DE 37; DE 41;

DE 43] are GRANTED, and the amended complaint [DE 26] is DISMISSED WITH

PREJUDICE for failure to state a claim upon which relief can be granted. The Clerk is

DIRECTED to close the case.

SO ORDERED.

ENTERED: July 8, 2024.

/s/ Philip P. Simon

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT

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