DURM v. MARION COUNTY, INDIANA SHERIFF'S OFFICE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JOHN DURM, JR. as Personal Representative )

of the Estate of John Durm, Sr., )

)

Plaintiff, )

)

v. ) No. 1:24-cv-01321-SEB-KMB

)

MARION COUNTY, INDIANA SHERIFF'S )

OFFICE, )

KERRY J. FORESTAL Marion County )

Sheriff, in his Official Capacity as Sheriff of )

Marion County, )

THE HEALTH AND HOSPITAL )

CORPORATION OF MARION COUNTY )

d/b/a ESKENAZI HEALTH, )

CINTAS CORP. NO. 2, )

)

Defendants. )

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

Plaintiff John Durm, Jr., as Personal Representative of the Estate of John Durm,

Sr. ("Estate" or "Deputy Durm, Sr.") filed a Complaint on August 5, 2024, against (inter

alia) the Marion County, Indiana Sheriff's Office; and Marion County Sheriff Kerry J.

Forestal, in his Official Capacity as Sheriff ("Forestal") (collectively, "Defendants"),

pursuant to § 1983, in which he raises Fourteenth Amendment claims emanating from the

tragic death of his father, Deputy Durm, Sr., on July 10, 2023.

Deputy Durm, Sr. had been employed by the Marion County Sheriff's Department

with responsibility for transporting inmates to locations outside the jail for purposes (for

example) of receiving healthcare. On July 10, 2023, an inmate whom Deputy Durm, Sr.

was transporting back to the jail via the prison van following a brief hospital visit

attacked and killed Deputy Durm inside the sally port of the Marion County Adult

Detention Center ("ADC"). Plaintiff Estate seeks to hold the Defendants liable for Deputy

Durm, Sr.'s death, arguing that it resulted from Defendants' actions (or more accurately,

non-action).

Defendants challenge the legal sufficiency of these claims against them in the

Complaint in their motion for judgment on the pleadings filed on August 28, 2024, dkt. 9,

which was responded to by Plaintiff on September 11, 2024, dkt. 11, and to which

Defendants replied on October 2, 2024, dkt. 23.1 Defendants seek both the dismissal of

the substantive constitutional claims against them as well as dismissal of the separate

claim against Sheriff Forestal who has been sued solely in his official capacity. The

motion is fully briefed and ripe for rulings, which we set forth below.

Applicable Legal Standard

Under Rule 12(c), Fed. R. Civ. P., "a party may move for judgment" once "the

pleadings are closed," so long as such motion is brought early enough not to delay trial.

Much "[l]ike Rule 12(b) motions, courts grant Rule 12(c) motions only if 'it appears

beyond doubt that the plaintiff cannot prove any facts that would support his claim for

relief.' " N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th

Cir. 1998) (quoting Craigs, Inc. v. Gen. Elec. Cap. Corp., 12 F.3d 686, 688 (7th Cir.

1 On November 5, 2024, Co-Defendant The Health and Hospital Corporation of Marion County

d/b/a Eskenazi Health ("Eskenazi") moved to dismiss the Complaint for failure to state claims

upon which relief can be granted. Dkt. 24. That motion will be undertaken and resolved in due

course.

1993)). The moving party must, therefore, "demonstrate that there are no material issues

of fact to be resolved." Id. In reviewing "the complaint, the answer, and any written

instruments attached as exhibits," we take the facts in the light most favorable to the

nonmoving party. Id.; e.g., Unite Here Local 1 v. Hyatt Corp., 862 F.3d 588, 595 (7th Cir.

2017).

Factual Background

The Estate's lawsuit consists of two claims for the alleged violation of Deputy

Durm's substantive due process rights under the Fourteenth Amendment. As such, suit is

brought pursuant to 42 U.S.C. § 1983, requiring in what have become familiar words and

phrases that a plaintiff allege (and ultimately prove) that: (1) he was deprived of a right

secured by the Constitution or laws of the United States; and (2) the deprivation was

visited upon him by a person or persons acting under color of state law. Kramer v. Vill. of

North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004).

The Complaint, in Section IV, Paragraph 26, contains the Estate's specific

allegations against the Sheriff's Department, accusing it of "creating and maintaining" the

following policies, customs, practices and procedures:

a. Plaintiff alleges that the Sheriff's Office had a de facto policy, custom,

practice or procedure of:

b. Failure to implement the two-party requirement for transport of violent

and dangerous inmates;

c. Failure to require violent and dangerous inmates to be identified by a red

jumpsuit instead of the orange jumpsuit worm by non-violent inmates;

d. Failure to provide adequate and appropriate staffing to monitor and

implement security functions at the Marion County Jail, including but not

limited to inadequate staffing/training with Central Command/Central

Control;

e. Failure to ensure access to a working automated external defibrillator

(AED);

f. Failure to properly and adequately monitor the vehicle loading and

unloading of inmates through the sally port for transport by the deputies;

g. Failure to properly monitor, supervise, operate, and secure the sally port

door; and

h. [Maintaining] [d]angerously low staffing levels which led to the Sheriff's

Office's blatant failure to follow policies, procedures and

recommendations of Community Resource Services, Gettysburg, PA.

Compl. ¶ 26, dkt. 1; Am. Compl. ¶ 28, dkt. 40.2

The specific claims against Sheriff Forestal, who was sued in his official capacity,

are set forth in Paragraphs 37 and 38 of Section IV of the Complaint, as follows:

37. Defendant Forestal acted in a supervisory capacity with respect

to the incident involving Durm, Sr. In that capacity, Defendant Forestal acted

intentionally, malicious[ly], in conscious disregard, and/or with deliberated

indifference to the rights of Durm Sr. Plaintiff alleges that Defendant Forestal

acted in this manner, at least in part, to avoid additional budgetary requests,

avoid hiring more personnel, and generally to cut costs for the Sheriff's

Office.

38. These supervisory failures of Defendant Forestal directly caused

and contributed to Durm, Sr.'s loss of Life and Liberty, and caused his death.

Compl. ¶¶ 37, 38, dkt. 1; Am. Compl. ¶¶ 39–40, dkt. 40.

2 On March 18, 2024, the Estate was granted leave to file an Amended Complaint, dkt. 40, which

henceforth "supersede[d] [the] original complaint and render[ed] the original complaint void."

Flannery v. Recording Industry Ass'n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). At a telephonic

status conference on March 25, 2025, the parties confirmed that the Amended Complaint did not

change or modify the allegations against the Sheriff's Office, Sheriff Forestal, or Eskenazi, and,

thus, no amendments to the pending motions were needed. Dkt. 43 at 1.

Legal Analysis

Local governments and municipalities (i.e., sheriffs' departments) may be held

liable under § 1983 for constitutional violations. J.K.J. v. Polk Cnty., 960 F.3d 367, 377

(7th Cir. 2020) (en banc) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691–92

(1978)). However, they can only be liable for their own actions; they cannot be held to be

vicariously liable for the constitutional torts of their employees. Milchtein v. Milwaukee

Cnty., 42 F.4th 814, 826 (7th Cir. 2022) ("[A] municipality may be liable only for conduct

that is properly attributable to the municipality itself.") (internal quotations and citations

omitted).

To hold a municipality or local government liable, a plaintiff must satisfy three

elements. First, he must trace the constitutional violation to some municipal action.

Stockton v. Milwaukee Cnty., 44 F.4th 605, 617 (7th Cir. 2022). This can come in the form

of "an express policy that causes a constitutional deprivation when enforced, a

widespread practice that is so permanent and well-settled that it constitutes a custom or a

practice; or an allegation that the constitutional injury was caused by a person with final

policymaking authority." Bohanon v. City of Indianapolis, 46 F.4th 669, 675 (7th Cir.

2022) (cleaned up). Second, he must show the municipal action amounts to deliberate

indifference. Stockton, 44 F.4th at 616. And finally, he must show the action was the

"moving force" behind the injury alleged. J.K.J., 960 F.3d at 377.

No "bright-line" rule defines a widespread custom or practice, but a plaintiff

generally "must introduce evidence that acquiescence on the part of the policymakers was

and amounted to a policy decision." Dixon v. Cnty. of Cook, 819 F.3d 343, 348 (7th Cir.

2016); Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010). "There is

no clear consensus as to how frequently such conduct must occur to impose Monell

liability, except that it must be more than one instance or even three." Thomas, 604 F.3d

at 303 (internal citations omitted); see also Rodriguez v. Milwaukee Cnty., 756 F. App'x

641, 643 (7th Cir. 2019), reh'g denied (Mar. 25, 2019).

For city policymakers' actions to have the "force of law," they must have been

"deliberately indifferent as to [their] known or obvious consequences." Gable v. City of

Chicago, 296 F.3d 531, 536 (7th Cir. 2002). Deliberate indifference, in the context of a

widespread practice theory, means "a reasonable policymaker [would] conclude that the

plainly obvious consequences of [his] actions would result in the deprivation of a

federally protected right." Id. (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 411

(1997)); Brock v. Casteel, No. 1:13-CV-01577-DML, 2015 WL 3439236, at *9 (S.D. Ind.

May 28, 2015); Hall v. City of Chicago, No. 12 C 6834, 2012 WL 6727511, at *6 (N.D.

Ill. Dec. 28, 2012). These consequences may be plainly obvious when one knows or

should know of their existence. Wilson v. Cook Cnty., 742 F.3d 775, 781 (7th Cir. 2014).

I. Fourteenth Amendment Due Process Claim Against the Sheriff's Department

The Estate alleges that Defendants violated Deputy Durm's Fourteenth

Amendment Due Process rights essentially by failing to protect him. Each of the specific

"failures" listed in the Complaint represents a way in which Defendants' supervision of

the jail fell short in failing to protect him. Stated otherwise, the Estate contends that

Deputy Durm's murder by a violent inmate whom Deputy Durm was escorting back to

the jail by way of the sally port was the result of the Defendants' failures to put in place

and to enforce various safety measures, which, had they been in effect, would have saved

Deputy Durm's life.

In terms of the § 1983 elements, the parties do not dispute that the defendants were

acting under color of state law when Deputy Durm was killed by the inmate. Thus, we

turn next to the issue of whether the Estate has properly alleged a violation of a right

secured by the Fourteenth Amendment. See, e.g., Lanigan v. Vill. of E. Hazel Crest, 110

F.3d 467, 471 (7th Cir. 1997).

As the Seventh Circuit recognized in Wallace v. Adkins, "The only such right that

could apply here would be the substantive component of the due process clause, which

'protects individual liberty against certain government actions regardless of the fairness of

the procedures used to implement them.' " 115 F.3d 427, 428 (7th Cir. 1997)

(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quotation

omitted)). That said, "[t]o the extent [the Estate's] claim rests on an alleged affirmative

duty" imposed on the Sheriff's Department "to ensure the safety of its employees or its

citizens," it runs up against the legal obstacles created by Collins and by DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189 (1989)." Id. at 428–29.

Those Supreme Court decisions "make it clear that the due process clause imposes no

general affirmative duty to protect on the state, nor does it guarantee public employees a

workplace free of unreasonable risks of harm." Id. at 429 (citing Collins, 503 U.S. at 126,

129; DeShaney, 489 U.S. at 195).

There are two recognized exceptions to the DeShaney rule. The first exception,

known as the "state-created danger doctrine," applies when a government actor

"affirmatively places a particular individual in a position of danger the individual would

not otherwise have faced." Est. of Her v. Hoeppmer, 939 F.3d 872, 876 (7th Cir.

2019) (quoting Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998)). The second

exception occurs when "the state has a 'special relationship' with a person, that is, if the

state has custody of a person, thus cutting off alternative avenues of aid." Id. To maintain

a due process claim under these exceptions, a plaintiff must prove three elements: "(1) the

government, by its affirmative acts, created or increased a danger to the plaintiff; (2) the

government's failure to protect against the danger caused the plaintiff's injury; and (3) the

conduct in question 'shocks the conscience.' " Id. (quoting Flint v. City of Belvidere, 791

F.3d 764, 770 (7th Cir. 2015)); see also Est. of Tester by and Through Tester v. Vill. at

Hamilton Pointe, LLC, No. 3:24-cv-00005-MPB-CSW, 2024 WL 4433040, at *10–11

(S.D. Ind. Sept. 20, 2024).

The Estate makes only passing mention of DeShaney in its response brief,

choosing to focus instead on the Monell elements. The Estate's argument, such as it is, is

limited to a criticism of Defendants' motion for its failure to address the two exceptions to

the DeShaney limitation on due process claims by an employee of a public employer

based on a failure to provide protection. Thus, the Estate does not specifically argue that

Deputy Durm was entitled to protection by the Sheriff's Office because there was a

special relationship between them nor that the Sheriff's Office placed Durm in a position

of danger that he would not have otherwise faced. Without these allegations, it is unclear

how the Estate expects to avoid DeShaney's restrictions.

Defendants argue that neither DeShaney exception applies, nor could it. Because

Deputy Durm, Sr. was at the time of his death an employee of the Sheriff's Office, the

Estate's claims of liability against the State is a non-starter based on DeShaney's clear

holding that the due process clause of the Fourteenth Amendment imposes no affirmative

duty on the State to protect him, nor does it guarantee public employees a workplace free

of unreasonable risks of harm. DeShaney, 489 U.S. at 195.

Whether a special relationship in the context of substantive due process rights

exists, as Defendants argue, arises in only two settings: "(1) custodial settings in which

the state has limited the individual's ability to care for himself, and (2) when the state

affirmatively places the individual in a position of danger the individual would not have

otherwise faced." Dkt. 23 at 2 (citing Est. of Stevens v. City of Green Bay, 105 F.3d 1169,

1174 (7th Cir. 1997) (citing DeShaney, 489 U.S. at 199–202)). Well-established Seventh

Circuit caselaw, as referenced below, makes clear that Deputy Durm, Sr. had neither a

cognizable "special relationship" with the Defendants nor had he been placed by the State

in a position of danger that he would not have otherwise faced.

Regarding the limitations of due process protections in the context of unsafe

working conditions, Judge Easterbrook, writing for the Seventh Circuit in Walker v.

Rowe, explained as follows: The Due Process Clause of the Fourteenth Amendment "is a

constraint on the state's power to act, a prohibition on the misuse of official power. It does

not require the state to guarantee life, liberty, or property; it requires only that the state

not act, unless with due process, when life, liberty, or property are in the balance." 791

F.2d 507, 509 (7th Cir. 1986) (internal citation omitted).

In applying these principles to the case at bar, we hold that the Estate's claims as

set forth in the Complaint do not and can not suffice to state a basis for relief because: (1)

the State by its affirmative acts did not create or increase a danger to Deputy Durm, Sr.,

(2) no "special relationship" existed between Deputy Durm and the Sheriff's Office, such

that the government's failure to protect him caused his injury, and (3) the failures alleged

by the Estate as the cause of his death do not shock the conscience.

In the closely analogous case of Wallace v. Adkins, involving a plaintiff prison

guard who had been killed by a violent inmate after the inmate, who was known to have

threatened plaintiff in the past, was negligently housed in a cellblock where Plaintiff was

on duty as the guard, the Seventh Circuit ruled as follows:

We are similarly unpersuaded that the prison officials here affirmatively

placed Wallace in a position of danger he would not otherwise have faced.

There are two parts of this inquiry: what actions did the prison officials

affirmatively take, and what dangers would Wallace otherwise have faced?

The only affirmative act Wallace can point to is the order to remain on his

post, which (on this appeal from a Rule 12(b)(6) dismissal) we assume the

prison officials issued with full knowledge that Hernandez was a vicious

murderer who was ready to strike Wallace at the first opportunity, which had

just presented itself. We must also assume, as Wallace alleges, that upon

receiving Wallace's request to be moved, the prison officials did nothing but

offer the false assurances that they would protect him. The issuance of this

order is enough to qualify as an affirmative act on the part of the officials. As

Wallace noted at oral argument, it is quite different from a generalized

complaint that D Cellhouse is a dangerous place.

But Wallace fails on the second part of this inquiry. His real complaint is

that the prison officials did not take a different affirmative step, namely,

issuing an order permitting him to leave. However, the question is not what

dangers he would have faced had the prison officials behaved as he wanted

them to, but what dangers he would have faced absent the affirmative acts

actually taken. Even without the actual order that was issued, Wallace would

have had a duty to remain on his post whether or not the prison officials said

a word. There is no doubt that he was in danger from Hernandez on the

morning of March 23, 1994, and that the officials knew of the danger even

before Hernandez tried to make good on his threat. But these are the risks of

the guard's job. . . . The rationale of Walker compels us to hold here that the

due process clause did not require the prison officials to issue an order

permitting him to leave.

115 F.3d at 430.

So it is in our case: Deputy Durm, Sr. was placed in no more dangerous a position

than any other guard charged with the responsibility of transporting prisoners off-site

from the jail. It is inherently risky work, and danger lurks with every task. Placing him in

that role cannot be properly viewed as the kind of "affirmative act" on the part of the

Sheriff's Office that would subject the State to liability for the actions that occurred when

the inherent risks materialized.

Regarding the second element—the government's failure to protect against the

danger that caused the plaintiff's injury—such a claim is foreclosed by the fact that there

is no substantive due process right to a safer working environment when the work being

performed involves inherent risks to worker safety. In Walker, the Seventh Circuit wrote:

"The constitution does not assure employees of the government better terms or working

conditions or amenities than those available in private employment. . . . We therefore

hold that the due process clause does not assure safe working conditions for public

employees." 791 F.2d at 510–11 (internal citation omitted). See also Daniels v. Williams,

474 U.S. 327, 335–36 (1986) (holding that the constitution does not duplicate duties of

care in the common law of torts); Baker v. McCollan, 443 U.S. 137 (1979) (same); Paul

v. Davis, 424 U.S. 693 (1976) (same).

Earlier in Walker, the Court wrote:

"Due process" does not mean "due care." We concluded in Bowers v.

DeVito, 686 F.2d 616 (7th Cir. 1982), that because the bill of rights is a

charter of negative liberties, the state need not protect people from danger.

Bowers held that the state has no constitutional obligation to keep aggressive

people out of free society. Subsequent cases have held, among other things,

that the police have no constitutional duty to save people in danger. The bill

of rights is designed to protect people from the state, not to ensure that the

state supplies minimum levels of safety or comfort. Governments regularly

sacrifice safety for other things.

Walker, 791 F.2d at 509–10 (internal citations omitted) (collecting cases).

Regarding the third element—that the Sheriff's Office's conduct in question

"shocks the conscience"—we do not find the alleged failures on the part of the Sheriff's

Office as set forth in the Complaint to be of the sort or degree to shock the conscience.

Staffing shortages, prison uniform policies, electronic surveillance inadequacies within

the jail premises, a lack of access to defibrillators, deficient, risky transportation

procedures for moving inmates by deputies, inconsistent compliance with other existing

regulations—none of these derelictions is so severe or inexcusable or beyond the pale as

could be fairly described as capable of shocking the conscience.

Thus, because the Estate's claims do not reveal any basis on which to show that

they would fall within either of the exceptions to the holding in DeShaney, and because

DeShaney clearly holds that the due process clause imposes no general affirmative duty

to protect a public employee of the state, nor does it guarantee a public employee a

workplace free of unreasonable risks of harm, Defendants' Motion for Judgment on the

Pleadings must be granted as to the Estate's substantive due process claim.

II. Failure to Train

The Complaint does not explicitly allege a constitutional violation based on a

failure to train. However, because we have found, for the reasons set forth above, that the

Estate has not sufficiently alleged a violation of Deputy Durm, Sr.'s substantive due

process rights, Defendants cannot be held liable for a failure to train because "there can

be no liability under Monell for failure to train when there has been no violation of the

plaintiff's constitutional rights." Hart v. Mannina, 992 F. Supp. 2d 896, 912 (S.D. Ind.

2014) (citing Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007)). Accordingly,

Defendants' Motion for Judgment on the Pleadings must be granted as to any claim based

on the Estate's failure to train.

III. Official Capacity Claim Against Sheriff Forestal

Having determined that the Estate's Monell claim against the Sheriff's Department

fails, the claim against Sheriff Forestal in his official capacity must also be dismissed.

Suing an individual defendant in his official capacity in a § 1983 lawsuit is simply an

alternative way of pleading a Monell claim against a governmental entity. Kentucky v.

Graham, 473 U.S. 159, 166 (1985); Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir.

2008). Accordingly, the Estate's claims against Sheriff Forestal in his official capacity are

duplicative of those brought against the Sheriff's Department, and therefore must be

dismissed as well.

Conclusion

For the reasons detailed above, Defendants' Motion for Judgment on the

Pleadings, dkt. 9, is GRANTED as to the claims against the Marion County Sheriff's

Office and Sheriff Forestall. The case shall proceed as to the remaining parties.

IT IS SO ORDERED.

Date: 3/31/2025 Fuh, Genus Barker

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

Distribution:

Rosemary L. Borek

Clark Johnson & Knight, Ltd.

rborek@cjklaw.com

Anthony W. Overholt

Frost Brown Todd LLP

aoverholt@fbtlaw.com

Michael W. Phelps

Hankey Marks & Crider

mphelps@hankeylaw.com

Pamela G. Schneeman

Clark Johnson & Knight, Ltd.

pschneeman@cjklaw.com

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