UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

STEVEN ASHCRAFT, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 2:13-CV-080 JD 

 ) 

CITY OF CROWN POINT, INDIANA et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

This is an action against the City of Crown Point, Indiana, its police department, and four 

of its police officers, arising out of an alleged assault that occurred during a traffic stop. The 

plaintiff, Steven Ashcraft, asserts claims for violations of his rights under the United States 

Constitution in addition to common law causes of action under state law [DE 1]. The Defendants 

have moved to dismiss all claims except for Plaintiff’s claims against the officers in their 

individual capacities under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights, and 

Plaintiff’s state law claims for false arrest, false imprisonment, assault, and battery against the 

City of Crown Point [DE 9]. This motion has been fully briefed [DE 10, 18, 19, 22]. For the 

following reasons, Defendants’ motion is GRANTED. 

I. BACKGROUND 

The Plaintiff, Mr. Ashcraft, is a citizen of Indiana. [DE 1 ¶ 3]. On March 3, 2011, at 

approximately 8:30 p.m. at 235 South West Street in Crown Point, Indiana, Mr. Ashcraft was 

stopped for an alleged traffic violation by the four police officer defendants, identified as J. 

McCowan, D. Wilkins, Sgt. Meece, and R. Olson (the “Officer Defendants”). [DE 1 ¶¶ 4, 10]. 

Mr. Ashcraft alleges that he was assaulted by those officers during the traffic stop, causing him 

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to sustain physical injuries. [DE 1 ¶ 10]. Specifically, Mr. Ashcraft had previously undergone 

back surgery, and the alleged assault aggravated that condition. [DE 1 ¶ 11]. 

Mr. Ashcraft alleges that the officers were “acting under the direction and control of the 

City of Crown Point” and that they were “acting pursuant to either official policy or the custom, 

practice and usage of the City of Crown Point and its police department.” [DE 1 ¶ 4]. He further 

alleges that the City of Crown Point “was negligent in hiring and retaining said officers when it 

knew or should have known of said aggressive tendencies,” and that “the City of Crown Point 

and its police department failed to properly train the defendant officers named herein in the 

proper use of reasonable force.” [DE 1 ¶¶ 12, 13]. 

II. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint when it fails 

to set forth a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When 

considering a Rule 12(b)(6) motion to dismiss, the court must decide whether the complaint 

satisfies the “notice-pleading” standard. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 

F.3d 930, 934 (7th Cir. 2012). The notice-pleading standard requires that a complaint provide a 

“short and plain statement of the claim showing that the pleader is entitled to relief,” sufficient to 

provide “fair notice” of the claim and its basis. Id. (citing Fed. R. Civ. P. 8(a)(2)); Maddox v. 

Love, 655 F.3d 709, 718 (7th Cir. 2011) (internal citations omitted); see also Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). In determining the 

sufficiency of a claim, the Court construes the complaint in the light most favorable to the 

nonmoving party, accepts all well-pleaded facts as true, and draws all inferences in the 

nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010) 

(internal citations omitted). 

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The Supreme Court has adopted a two-pronged approach when considering a Rule 

12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). First, pleadings 

consisting of no more than mere conclusions are not entitled to the assumption of truth. Id. This 

includes legal conclusions couched as factual allegations, as well as “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing 

Twombly, 550 U.S. at 555). Second, if well-pleaded factual allegations are present in the 

complaint, courts should “assume their veracity and then determine whether they plausibly give 

rise to an entitlement to relief.” Id. at 679. 

“A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678. The complaint “must actually suggest that the plaintiff has a right to 

relief, by providing allegations that raise a right to relief above the speculative level.” Maddox, 

655 F.3d at 718 (internal citations omitted). A plaintiff’s claim, however, need only be plausible, 

not probable. Indep. Trust Corp., 665 F.3d at 934 (quoting Twombly, 550 U.S. at 556). “[A] 

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those 

facts is improbable, and that a recovery is very remote and unlikely.” Id. In order to satisfy the 

plausibility standard, a plaintiff’s complaint must supply “enough facts to raise a reasonable 

expectation that discovery will yield evidence supporting the plaintiff’s allegations.” Twombly, 

550 U.S. at 556. 

Determining whether a complaint states a plausible claim for relief is “a context-specific 

task that requires the reviewing court to draw on its judicial experience and common sense.” 

Iqbal, 556 U.S. at 679 (internal citations omitted). Factual allegations, however, “that are merely 

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consistent with a defendant’s liability . . . stop[] short of the line between possibility and 

plausibility of entitlement to relief.” Id. at 678. 

III. DISCUSSION

Though the complaint does not separate Mr. Ashcraft’s claims into discrete counts 

(which it need not do), the Court construes Mr. Ashcraft’s claims as follows. First, claims against 

the Officer Defendants in their individual capacities pursuant to 42 U.S.C. § 1983 for violations 

of Mr. Ashcraft’s rights under the Fourth and Fourteenth Amendments. Second, claims against 

the City of Crown Point, its police department, and the Officer Defendants in their official 

capacities, under § 1983 for the same violations of Mr. Ashcraft’s constitutional rights. As a 

basis for municipal liability as to these claims, Mr. Ashcraft alleges that the City of Crown Point 

and its police department acted through their final policymakers, that the officers acted pursuant 

to either an official policy or the custom, practice, and usage of the City, that the City was 

negligent in hiring and retaining the officers, and that the City failed to properly train the 

officers. Third, the plaintiff asserts claims arising under state law against the City of Crown 

Point, its police department, and each of the officers for assault, battery, false arrest, false 

imprisonment, and intentional infliction of emotional distress. The Defendants have moved to 

dismiss all claims except for the § 1983 claim against the officers in their individual capacities 

for violation of Mr. Ashcraft’s Fourth Amendment rights, and the state law claims for false 

arrest, false imprisonment, assault, and battery against the City of Crown Point. 

As an initial matter, Defendants are correct that all claims against the City of Crown 

Point Police Department must be dismissed because it is not a suable entity. In Indiana, 

municipal police departments “are not suable entities.” Sow v. Fortville Police Dep’t, 636 F.3d 

293, 300 (7th Cir. 2011). Indiana law permits “municipal corporations” to “sue and be sued.” 

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Ind. Code § 36-1-2-10. A “municipal corporation” is defined as a “unit . . . or other separate local 

governmental entity.” Id. “‘Unit’ means county, municipality, or township,” and “‘Municipality’ 

means city or town.” Ind. Code §§ 36-1-2-11, -23. “Thus, the Indiana statutory scheme does not 

grant municipal police departments the capacity to sue or be sued.” Sow, 636 F.3d at 300. This 

same analysis applies to the police department’s liability under § 1983, under which local 

government liability “is dependent on an analysis of state law.” McMillian v. Monroe Cnty., 520 

U.S. 781, 786 (1997). Plaintiff’s argument that the department can be sued because it does not 

have absolute immunity is misplaced since immunity is immaterial if the department cannot be 

sued in the first place. Therefore, although the City of Crown Police Department is a department 

of an entity that can be sued, it is not itself a suable entity and must be dismissed from this 

action. 

A. Section 1983 Claims against the Officers in their Individual Capacities 

Mr. Ashcraft alleges that the Officer Defendants are liable in their individual capacities 

under 42 U.S.C. § 1983 on account of their use of constitutionally excessive force during the 

traffic stop in question. Section 1983 provides a cause of action against persons who deprive 

individuals of their constitutional rights while acting under color of state law. 42 U.S.C. § 1983. 

The Officer Defendants do not challenge the sufficiency of Plaintiff’s allegation that they acted 

under color of state law, but take issue with the source of the rights Mr. Ashcraft alleges they 

have violated. Because § 1983 “is not itself a source of substantive rights,” Baker v. McCollan, 

443 U.S. 137, 144 n.3 (1979), “[i]n addressing an excessive force claim brought under § 1983, 

analysis begins by identifying the specific constitutional right allegedly infringed by the 

challenged application of force,” Graham v. Connor, 490 U.S. 386, 394 (1989). The complaint 

states that the action is brought pursuant to the Fourth and Fourteenth Amendments. Though 

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Defendants concede that the complaint sufficiently pleads an action for violation of Plaintiff’s 

Fourth Amendment rights, they seek to dismiss any claim for a violation of Mr. Ashcraft’s 

Fourteenth Amendment rights. 

The Fourth Amendment protects the “right of the people to be secure in their persons . . . 

against unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourteenth 

Amendment states that “No State shall . . . deprive any person of life, liberty, or property, 

without due process of law.” U.S. Const. amend. XIV. A plaintiff’s status within the criminal 

justice system at the time an alleged excessive force is applied determines which of these 

provisions is the source of the plaintiff’s rights. See Graham, 490 U.S. at 395. The Supreme 

Court has held that “all claims that law enforcement officers have used excessive force—deadly 

or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be 

analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a 

‘substantive due process’ approach.” Id. The Fourteenth Amendment’s protection against 

excessive force, meanwhile, does not apply until the initial judicial determination of probable 

cause for an individual’s arrest. Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir. 2006) 

(“Our cases thus establish that the protections of the Fourth Amendment apply at arrest and 

through the Gerstein probable cause hearing, due process principles govern a pretrial detainee’s 

conditions of confinement after the judicial determination of probable cause, and the Eighth 

Amendment applies following conviction.”). The distinction is relevant because different 

standards apply in analyzing claims under the respective provisions. 

Here, the complaint clearly alleges that the officers’ use of excessive force occurred “in 

the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen.” Graham, 490 U.S. 

at 395. Specifically, Mr. Ashcraft was the subject of a traffic stop, and the allegedly excessive 

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force occurred during the course of that stop and his resulting arrest. [DE 1 ¶¶ 1, 10]. Therefore, 

Mr. Ashcraft’s claim for excessive force arises under the Fourth Amendment. Thus, to the extent 

the complaint’s reference to the Fourteenth Amendment intends to assert a claim under that 

amendment (rather than simply to note that Mr. Ashcraft’s claim is under the Fourth Amendment 

as incorporated against the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 

643, 655 (1961), which may be the case), that claim is dismissed. Mr. Ashcraft may proceed on 

his Fourth Amendment claims, however. 

B. Section 1983 Municipal Liability and Official Capacity Claims 

Defendants also move to dismiss all claims under § 1983 against the City of Crown Point 

and the Officer Defendants in their official capacities. First, as to the Officer Defendants, 

Defendants seek dismissal on the basis that these claims are duplicative of the claims against the 

City. The Supreme Court has noted that “[o]fficial capacity suits . . . ‘generally represent only 

another way of pleading an action against an entity of which an officer is an agent.’” Kentucky v. 

Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 

690 n.55 (1978)). Thus, “[a]s long as the government entity receives notice and an opportunity to 

respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against 

the entity.” Id. Because official-capacity claims are therefore redundant to claims asserted 

against a municipality on the same grounds, dismissal of official-capacity claims is appropriate 

once a municipality has been named as a defendant and appeared in an action. Schmidling v. City 

of Chicago. 1 F.3d 494, 495 n.1 (7th Cir. 1993) (“The district court properly dismissed Mayor 

Daley, sued in his official capacity, as a party to this action. A lawsuit against Mayor Daley in 

his official capacity is the same as a lawsuit against the City of Chicago.”); Magee v. Hous. 

Auth., No. 3:09-cv-337, 2010 WL 3000660, at *4 (N.D. Ind. July 28, 2010); Stevens v. Hous. 

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Auth., 720 F. Supp. 2d 1013, 1022 (N.D. Ind. 2010); see also Fed. R. Civ. P. 12(f) (permitting a 

court to “strike from a pleading . . . any redundant . . . matter”). The City of Crown Point is a 

defendant and has appeared in this action, so the claims against the Officer Defendants in their 

official capacities are accordingly dismissed. 

As to the claims against the City of Crown Point, the Defendants seek dismissal on the 

basis that the complaint fails to allege plausible grounds for municipal liability under § 1983. 

Section 1983 does not impose liability a municipality “solely because it employs a tortfeasor.” 

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Rather, to proceed with an action against a 

municipality based on a constitutional violation committed by its agents, a plaintiff must plead: 

(1) an express policy that, when enforced, causes a constitutional deprivation; 

(2) a widespread practice that, although not authorized by written law or express 

municipal policy, is so permanent and well settled as to constitute a custom or 

usage with the force of law; or (3) an allegation that the constitutional injury was 

caused by a person with final policymaking authority. 

McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995) (internal quotations omitted). 

Though Plaintiff has pled formulaic and conclusory allegations under each of these three 

alternative methods of establishing municipal liability, his claims fail because he has not alleged 

any facts whatsoever to support these bare legal conclusions. “Although Fed. R. Civ. P. 8 does 

not require detailed factual pleading, a plaintiff’s assertions must still direct the defendant to the 

factual cause of the plaintiff’s alleged injury. Boilerplate allegations of a municipal policy, 

entirely lacking in any factual support that a [municipal] policy does exist, are insufficient.” Id.

at 382–83 (internal quotation omitted) (alteration in original). 

The complaint first alleges that the officers acted “pursuant to . . . official policy . . . of 

the City of Crown Point and its police department.” [DE 1 ¶¶ 1, 4, 5]. However, the complaint 

does not further identify what the “official policy” was or how it caused a violation of Mr. 

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Ashcraft’s rights, and therefore deprives the defendants of the notice to which Rule 8 entitles 

them. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 

168 (1993) (holding that while no heightened pleading standard applies to Monell claims, the 

complaint must still “give the defendant fair notice of what the plaintiff’s claim is and the 

grounds upon which it rests”). The complaint further alleges that the officers acted “pursuant 

to . . . the custom, practice and usage of the City of Crown Point,” [DE 1 ¶ 1, 4, 5], but again 

provides no indication of what that custom, practice, and usage was, how it was related to the 

officers’ conduct, or how it violated Mr. Horvath’s rights. Neither do the sparse details of the 

incident in question permit a reasonable inference that any such unofficial policy exists or caused 

the alleged violations. This is insufficient to state a claim for which relief can be granted. See 

McCauley v. City of Chicago, 671 F.3d 611, 618 (7th Cir. 2011) (stating that “[i]n order to state a 

facially plausible . . . claim under Monell, the factual allegations in McCauley’s complaint must 

allow us to draw the reasonable inference that the City established a policy or practice” that 

caused the constitutional deprivation). 

Plaintiff also offers conclusory allegations that the City “was negligent in hiring and 

retaining said officers when it knew or should have known of said aggressive tendencies,” and 

that the City “failed to properly train the defendant officers named herein in the proper use of 

reasonable force.” [DE 1 ¶¶ 12, 13]. Though a complaint need only “give enough details about 

the subject-matter of the case to present a story that holds together,” Swanson v. Citibank, N.A., 

614 F.3d 400, 404 (7th Cir. 2010), no such details are present here, so these allegations are 

inadequate as well. See McGreal v. AT&T Corp., 892 F. Supp. 2d 996, 1018 (N.D. Ill. 2012) 

(dismissing claims based on bare allegations of unnamed policies and a failure to train). Finally, 

the complaint alleges that “the policy makers of the City of Crown Point were deliberately 

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indifferent to the rights of the inhabitants of the City of Crown Point,” and that “the City acted 

through its agents, employees and servants who were the policymakers for the city’s police 

department.” [DE 1 ¶¶ 1, 7]. However, the complaint does not identify any individuals who the 

City acted through except for the officers, and Plaintiff has offered no basis on which the officers 

themselves could be considered official policymakers for the City, so these allegations are 

fruitless as well. 

In short, the complaint’s allegations of municipal liability are no more than “a formulaic 

recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, and the sparse facts 

alleged in the complaint do not raise Plaintiff’s right to relief under these claims past the 

speculative level. Plaintiff’s claims against the City of Crown Point under section 1983 must 

therefore be dismissed, though without prejudice to Plaintiff seeking leave to amend the 

complaint so as to sufficiently allege these claims. 

C. State Law Claims 

Plaintiff finally alleges several common law claims under Indiana law, including assault, 

battery, false arrest, false imprisonment, and intentional infliction of emotional distress. 

However, Defendants argue first that the intentional infliction of emotional distress claims must 

be dismissed as to all defendants, and second, that all claims against the Officer Defendants must 

be dismissed, thus leaving only the assault, battery, false arrest, and false imprisonment claims 

against the City. As to the claim for intentional infliction of emotional distress, the Indiana Tort 

Claims Act states, “A governmental entity or an employee acting within the scope of the 

employee’s employment is not liable if a loss results from . . . [t]he adoption and enforcement 

of . . . a law (including rules and regulations) . . . unless the act of enforcement constitutes false 

arrest or false imprisonment.” Ind. Code § 34-13-3-3(8). “[T]o receive immunity under this 

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section of the [Tort Claims Act], a defendant must: (1) be engaged in the enforcement of a law; 

and (2) act within the scope of employment.” Parish v. City of Elkhart, No. 3:07-cv-452, 2010 

WL 4054271, at *2 (N.D. Ind. Oct. 15, 2010).

The Indiana Supreme Court has recognized exceptions to this immunity only where other 

statutes impose affirmative obligations or limitations on law enforcement. E.g., Wilson v. Isaacs, 

929 N.E.2d 200, 203–04 (Ind. 2010) (holding that the Tort Claims Act does not immunize 

governments from liability for excessive force by police, thus permitting actions for assault and 

battery, since Indiana statutes permit the use of force only to the extent necessary to effect a 

lawful arrest); Patrick v. Miresso, 848 N.E.2d 1083 (Ind. 2006) (holding that the Act did not 

immunize an officer’s negligent operation of a police vehicle where the officer had a statutory 

duty to operate emergency vehicles with due regard for the safety of all persons). Plaintiff has 

identified no statutory provision that would exclude a claim for intentional infliction of 

emotional distress from the Tort Claims Act, and other courts applying Indiana law have 

specifically dismissed such claims based on the Act. Serino v. Hensley, No. 3:12-cv-40, 2012 

WL 6025751, at *7 (S.D. Ind. Dec. 4, 2012) (collecting cases); Parish, 2010 WL 4054271, at *4 

(concluding that “[c]ommon law ‘add-on’ torts, such as [intentional infliction of emotional 

distress], are not exceptions to the law enforcement immunity under the [Tort Claims Act]”); 

City of Anderson v. Weatherford, 714 N.E.2d 181, 185–86 (Ind. Ct. App. 1999). Because 

Plaintiff’s complaint specifically alleges that the defendants were engaged in the enforcement of 

law, namely conducting a stop for a traffic violation, and that they acted within the scope of their 

employment, the Indiana Tort Claims Act immunizes them from liability for intentional 

infliction of emotional distress, and that claim is accordingly dismissed. 

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As to the claims against the Officer Defendants individually, the Tort Claims Act states, 

“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). The 

Indiana Supreme Court has construed this provision as meaning that “a plaintiff may not now sue 

a governmental employee personally if the complaint, on its face, alleges that the employee’s 

acts leading to the claim occurred within the scope of employment.” Thus, where a plaintiff 

alleges that an employee acted within the scope of employment, this provision “provides an 

immediate and early indication that the employee is not personally liable. In the paraphrased 

words of the statute, the action against the employee is ‘bar[red].’” Bushong v. Williamson, 790 

N.E.2d 467, 472 (Ind. 2003) (alteration in original). The court therefore noted that “if the 

complaint alleges that a government employee acted within the scope of employment, then a 

motion to dismiss under Trial Rule 12(B)(6) [Indiana’s analogue to Federal Rule of Civil 

Procedure 12(b)(6)] would be the appropriate course of action.” Id. at 472 n.4. 

The complaint here does exactly that. Specifically, it alleges that “at all times referred to 

herein, defendants acted . . . pursuant to their authority as police officers” of the City of Crown 

Point Police Department. [DE 1 ¶ 9]. The complaint further alleges that the Officer Defendants 

“were police officers of the City of Crown Point Police Department and [were] acting in such 

capacity as agents, servants, and employees of the City of Crown Point and its Police 

Department and [were] acting under the direction and control of the City of Crown Point and its 

police department and [were] acting pursuant to either official policy or the custom, practice and 

usage of the City of Crown Point and its police department.” [DE 1 ¶ 4, 5]. These allegations 

therefore bring the Officer Defendants within the immunity provided by the Tort Claims Act, so 

Plaintiff’s state law claims against those defendants must be dismissed. See McAllister v. Town 

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of Burns Harbor, 693 F. Supp. 2d 815, 822–23 (N.D. Ind. 2010); Lessley v. City of Madison, 654 

F. Supp. 2d 877, 902 (S.D. Ind. 2009) 

Despite these express allegations, Plaintiff argues in his opposition to the motion to 

dismiss that the officers were not in fact acting within the scope of their employment. However, 

even assuming that Plaintiff intended to plead in the alternative, which he has not himself 

indicated, the complaint is devoid of any allegations suggesting that the officers acted outside the 

scope of their employment. The Indiana Tort Claims Act states: 

A lawsuit filed against an employee personally must allege that an act or 

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

scope of the employee’s employment; (3) malicious; (4) willful and wanton; or 

(5) calculated to benefit the employee personally. The complaint must contain a 

reasonable factual basis supporting the allegations. 

Ind. Code § 34-13-3-5(c). However, the only fact pled in the complaint that Plaintiff cites as 

relevant to these factors was that Mr. Ashcraft “was assaulted by the named defendant police 

officers” during a traffic stop. [DE 1 ¶ 10]. The complaint does not even indicate what transpired 

to constitute an assault, which is itself a legal conclusion. Thus, the complaint falls well short of 

permitting a plausible inference that the officers’ acts were criminal, clearly outside the scope of 

their employment, malicious, willful and wanton, or calculated to benefit them personally. Ball v. 

City of Indianapolis, No. 1:12-cv-179, 2013 WL 1221936, at *3 (S.D. Ind. Mar. 25, 2013) 

(holding that where the complaint alleged that the officer “acted pursuant to his official position” 

in committing the alleged torts, even conclusory allegations that the acts occurred 

“intentionally,” “willfully,” “with malice,” and “in bad faith” failed to state a claim against the 

officer personally); Smith v. Ind. Dep’t of Corr., 871 N.E.2d 975, 986 (Ind. Ct. App. 2007) 

(dismissing claims against officers where the facts in the complaint were insufficient to suggest 

that the officers acted outside the scope of their employment); Higgason v. Indiana, 789 N.E.2d 

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22, 30–31 (Ind. Ct. App. 2003) (affirming the dismissal of claims against an officer where the 

complaint did not suggest criminal or malicious conduct). 

Plaintiff argues that the officers’ acts were criminal because Mr. Horvath was 

“assaulted,” but there is no crime of “assault” in Indiana, see Ind. Code § 35-1-1-1 et seq.; 

Halligan v. Indiana, 375 N.E.2d 1151, 1158 n.6 (Ind. Ct. App. 1978) (noting that “there is no 

crime of assault” under the Indiana Penal Code), and without any supporting facts as to what 

constituted the alleged assault, the allegations in the complaint do not plausibly state any 

criminal activity. Since Plaintiff has expressly alleged that the officers acted in the scope of their 

employment, and because no facts in the complaint would plausibly give rise to a contrary 

conclusion, Plaintiff’s state law claims against the Officer Defendants must be dismissed. 

Bushong, 790 N.E.2d at 471; see Maddox, 655 F.3d at 718 (stating that a complaint “must 

actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to 

relief above the speculative level”). 

IV. CONCLUSION

For the aforementioned reasons, Defendants’ motion to dismiss [DE 9] is GRANTED. 

All claims against the City of Crown Point Police Department are DISMISSED WITH 

PREJUDICE. Plaintiff’s Fourteenth Amendment claims under 42 U.S.C. § 1983 are 

DISMISSED WITH PREJUDICE as to all defendants. As to the City of Crown Point, Plaintiff’s 

Fourth Amendment claims under § 1983 are DISMISSED WITHOUT PREJUDICE, while his 

claim for intentional infliction of emotional distress is DISMISSED WITH PREJUDICE. As to 

Defendants McCowan, Wilkins, Meece, and Oslon in their official capacities, Plaintiff’s § 1983 

claims are DISMISSED WITH PREJUDICE. As to those defendants individually, Plaintiff’s 

claims under state law are DISMISSED WITHOUT PREJUDICE. Plaintiff may proceed on his 

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claims under 42 U.S.C. § 1983 against Defendants McCowan, Wilkins, Meece, and Oslon in 

their individual capacities for violation of his Fourth Amendment rights, on his claims against 

the City of Crown Point for false arrest, false imprisonment, assault, and battery, and may also 

seek leave to amend his complaint as to claims that have been dismissed without prejudice. 

 SO ORDERED. 

 ENTERED: November 5, 2013 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court 

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