UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ADRIAN N. BUGARIU, )

)

Plaintiff, )

) 2:13-cv-00355

v. )

)

TOWN OF ST. JOHN, INDIANA, ST. )

JOHN POLICE DEPARTMENT, CHIEF )

FRED A. FREGO, STEVE KILL, St. John )

Town Manager, )

)

Defendants. )

OPINION AND ORDER

Adrian Bugariu has filed a bare bones one-page complaint apparently related to an arrest

that he was subjected to a number of years ago. The defendants, the Town of St. John and

various Town officials, have jointly moved to dismiss Bugariu’s complaint for failure to state a

claim under Fed. R. Civ. P. 12(b)(6). (Docket Entry 4.) Bugariu never responded, and in fact

hasn’t participated in the case since the defendants removed it to federal court. Defendants have

indicated that they served the removal documents and the motion to dismiss on Bugariu’s

counsel. (DE 2, 4.) 

Bugariu’s allegations are sparse – so much so, in fact, that it’s not entirely clear what his

claims are, and whether they are state claims, federal claims, or both. Reading the complaint

liberally, Bugariu’s complaint appears to be an attempt to state both federal and state claims for

false arrest and imprisonment, as well as malicious prosecution. The complaint doesn’t put the

defendants on notice of the claims against them and the factual basis for those claims. So it will

be dismissed, albeit without prejudice.
FACTUAL BACKGROUND

Bugariu filed his complaint in Lake County Court on August 12, 2013. Here is what it

says in its entirety: 

1. Plaintiff and defendants reside in Lake County, Indiana.

2. On April 15, 2010, defendant Town of St. John, by and through its agents Fred

A. Frego and Steve Kill unjustly and falsely arrested plaintiff.

3. Although plaintiff denied any knowledge or information pertaining to the

commission of the crime, defendants directed, urged, and commanded certain police

officers of the City of St. John to place plaintiff under arrest.

4. As a consequence of the false and unjust charges, plaintiff was arrested on

April 15, 2010 and held in jail until April 26, 2010 when he was released. The case was

discharged for lack of evidence or probable cause on August 11, 2011.

5. The actions of defendant were done maliciously and with the specific intent to

harm plaintiff in his occupation and to harm plaintiff’s reputation.

6. As a consequence of the unlawful imprisonment the plaintiff loss [sic] time and

his freedom, suffered indignity and humiliation, experienced mental suffering, loss of

wages, and was forced to go to Mississippi until the end of July, 2010.

That’s all Bugariu has to say about the matter. It’s entirely unclear what “the crime” was

(Complaint ¶ 3), or what the charges were (Complaint ¶ 4), or what “the case” was (Complaint ¶

4). It’s also unclear what Mississippi has to do with anything, however dreadful Bugariu may

have found his stay there. (Complaint ¶ 6.)

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It’s also not clear exactly what Bugariu’s claims are. But liberally construing the

complaint, they could include false arrest, false imprisonment, and malicious prosecution. These

claims could be construed as arising under 42 U.S.C. § 1983, which was the implicit basis for the

defendants’ removal of the case on October 3, 2013. The removal was timely pursuant to the

defendants’ motion to enlarge time to answer the complaint in state court. (DE 2 ¶ 4.)

ANALYSIS

The defendants argue that Bugariu’s claims are untimely based on the face of the

complaint. (DE 5 at 3.) They also argue that any state tort claims are barred by the Indiana Tort

Claims Act (DE 5 at 7) and that qualified immunity protects them from both state and federal

claims. (DE 5 at 9.) 

The problem with making any meaningful evaluation of the claims is that the complaint

is so threadbare. The only substantive documents that have been filed in this case are the

removed state court complaint consisting of a single page, and the defendants’ motion to dismiss.

I note, as a preliminary matter, that I didn’t suggest that Bugariu respond to the motion to

dismiss, or enter an order to show cause why the dismissal shouldn’t be granted, or advise

Bugariu of the consequences of failing to respond. The Seventh Circuit has said that I don’t need

to do any of those things before considering a motion to dismiss. See, e.g., Curtis v. Bembenek,

48 F.3d 281, 286-88 (7th Cir. 1995) (a court need not advise even a pro se litigant of the

consequences of not responding to a motion to dismiss because “[t]he plaintiff can simply rest on

the assumed truthfulness and liberal construction afforded his complaint”). I’ll decide the motion

to dismiss based on the defendants’ memorandum in support of it and on Bugariu’s complaint.

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But before I evaluate the sufficiency of the complaint, I need to say a word about the

threshold issue of jurisdiction. As I’ve noted, it’s unclear exactly what Bugariu’s claims are,

including whether they encompass federal claims. But I think it’s fair to read them as including

claims under § 1983, which means I have federal question jurisdiction. Bugariu has not said

otherwise, and while there’s no deadline (other than the date of final judgment) for remand to

state court based on lack of subject matter jurisdiction, 28 U.S.C. § 1447©, Bugariu’s failure to

object to removal suggests the presence of federal claims. Reading the complaint liberally, I will

construe the complaint to include both federal § 1983 claims and supplemental state tort claims.

To state a claim for relief, a 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). The point is “to give the

defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citation omitted). Just reciting the

elements of a claim won’t cut it. Id. In order to survive a motion to dismiss under Rule 12(b)(6)

of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks and citation omitted); accord Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). I must accept all factual allegations as true and draw all

reasonable inferences in the complainant’s favor, but I don’t need to accept threadbare legal

conclusions supported by purely conclusory statements. See Iqbal, 556 U.S. at 678. The first step

in my analysis is to identify and disregard all “allegations in the complaint that are not entitled to

the assumption of truth,” especially including any legal conclusions. Id. at 680-81. Then I must

look at the remaining allegations to determine whether they plausibly – and not merely possibly

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or conceivably – suggest an entitlement to relief. Id. at 681, 683. This task invariably requires me

to draw on my judicial experience and common sense. Id. at 679. In short, “the plaintiff must

give enough details about the subject-matter of the case to present a story that holds together.” 

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

As the complaint stands, facts are lacking while pejoratives and legal conclusions

abound. Simply calling charges “false and unjust” doesn’t make them so, and alleging that acts

“were done maliciously” doesn’t put defendants on notice of the basis of the malice allegation.

The big question in a false arrest claim under Indiana or federal law is whether the

defendant had probable cause for the arrest. See Row v. Holt, 864 N.E.2d 1011, 1016 (Ind. 2007)

(citing Earles v. Perkins, 788 N.E.2d 1260, 1265 (Ind. Ct. App. 2003)); Bentz v. City of

Kendallville, 577 F.3d 776, 779-80 (7th Cir. 2009). I’ll analyze the false imprisonment and false

arrest claims together because “Indiana courts have used the terms ‘false arrest’ and ‘false

imprisonment’ interchangeably when a plaintiff’s claim stems from detention by authorities

without probable cause.” Bentz, 577 F.3d at 780; see also Row, 864 N.E.2d at 1016 n.4

(“‘inasmuch as Row’s claim for false imprisonment stems from his alleged false arrest, we need

not make a separate analysis for the former.’ [Row v. Holt, 834 N.E.2d 1074, 1089, 2005 (Ind.

Ct. App. 2005).] Thus, our analysis, though discussed in relation to false arrest, applies equally

to the false imprisonment claim.”).

So in order to successfully plead false arrest and false imprisonment, at the very least

Bugariu would have to plead facts sufficient to show that he was arrested without probable

cause. Not only does he not plead any facts related to probable cause for arrest, he doesn’t even

baldly assert that probable cause for the arrest was lacking (although he does say “the case” was

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ultimately “discharged for lack of evidence or probable cause” (Complaint ¶ 4)). The allegation

that charges were dismissed based on “lack of evidence or probable cause” (emphasis added)

doesn’t necessarily mean (or even allege) that probable cause was lacking for the arrest. Bugariu

also alleges that he was arrested despite “den[ying] any knowledge or information pertaining to

the commission of the crime.” (Complaint ¶ 3.) Most people don’t admit to knowledge of a

crime before they are arrested – if that were required to make a lawful arrest, the prisons would

largely be empty. Bugariu’s pre-arrest denial of knowledge of information about the crime

doesn’t automatically equate to a lack of probable cause for arrest. While the defendants could

make and have made a good faith effort to guess at what “the crime” and “the case” were, the

bare and conclusory statements in the complaint don’t put them on notice as required by Rule 8.

Bugariu hasn’t pleaded enough facts to make plausible a claim of false arrest or false

imprisonment.

As for the claim of malicious prosecution, there are four elements: “(1) the defendant []

instituted or caused to be instituted an action against the plaintiff []; (2) the defendant acted with

malice in doing so; (3) the defendant had no probable cause to institute the action; and (4) the

original action was terminated in the plaintiff’s favor.” City of New Haven v. Reichhart, 748

N.E.2d 374, 378 (Ind. 2001). “The element of malice may be inferred from a total lack of

probable cause, from the failure to make a reasonable or suitable inquiry, and from a showing of

personal animosity.” Glass v. Trump Ind., Inc., 802 N.E.2d 461, 467 (Ind. Ct. App. 2004)

(internal quotation marks and citation omitted).

Bugariu more or less alleged the first and last elements. (Complaint ¶¶ 2,4.) But he didn’t

allege facts regarding malice or probable cause for the second and third elements. He states the

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conclusion that actions were taken “maliciously,” but doesn’t indicate the facts from which

malice might be inferred. The claim of malicious prosecution is just too conclusory, and so it

fails, too. 

In sum, I simply have no idea exactly what Bugariu is trying to allege. The fact that he

doesn’t tell any coherent story, plausible or otherwise, means that the complaint must be

dismissed. Because the complaint is being dismissed for pleading insufficiency, and it might be

sufficient if supplemented, the dismissal is without prejudice.

To be clear, I am dismissing all of the claims that I have read the complaint as attempting

unsuccessfully to allege, both federal and state. The principle of comity would normally

encourage me to relinquish supplemental jurisdiction over the state law claims, and to hold that

dismissal applies only to the federal side of the case. 28 U.S.C. § 1367(c)(3); see Hansen v. Bd.

of Trs. of Hamilton Southeastern Sch. Corp., 551 F.3d 599, 608 (7th Cir. 2008); Groce v. Eli

Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) (“[I]t is the well-established law of this circuit

that the usual practice is to dismiss without prejudice state supplemental claims whenever all

federal claims have been dismissed prior to trial.”). But in this situation, the state and federal

claims are completely intermingled, not differentiated at all (that’s part of the problem with the

complaint – I have no idea what’s being alleged), so it’s hard to rationally pull them apart for

dismissal. Furthermore, the dismissal is without prejudice, so Bugariu may be able to clarify

what his claims are, their factual bases, and whether they are state or federal or both.

Finally, it is worth noting that even though my dismissal of the cursory complaint is

without prejudice, if Bugariu were to refile the case, it appears from the face of the current

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complaint that the claims would be barred by the statute of limitations.1

 Indiana’s statute of

limitations for personal injury claims, including false arrest, false imprisonment and malicious

prosecution, is two years. See Julian v. Hanna, 732 F.3d 842, 844-45 (7th Cir. 2013) (citing Ind.

Code § 34-11-2-4(a); Commercial Credit Corp. v. Ensley, 148 Ind. App. 151, 159 (Ind. Ct. App.

1970)); Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013). Federal law governs when the two

years begin to run. Serino, 735 F.3d at 590 (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)).

“The general rule is that a § 1983 claim accrues when the plaintiff knows or has reason to know

of the injury which is the basis of his action. There is a specific rule, however, for false arrest

claims. The Supreme Court held that for these claims, the action begins to run at the time the

claimant becomes detained pursuant to legal process – that is, when the arrestee is bound over by

a magistrate or arraigned on charges.” Serino, 735 F.3d at 591 (internal quotation marks,

citations omitted). As noted above, an element of malicious prosecution is the termination of

criminal proceedings in the plaintiff’s favor, so the claim accrues upon termination of the case.

See, e.g., Julian, 732 F.3d at 845; Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).

1

I won’t decide based on the statute of limitations here because the pleading deficiency is

sufficient to decide that this complaint needs some work, and that’s a clearer reason for granting

a motion to dismiss. A plaintiff’s failure to adhere to a statute of limitations is an affirmative

defense and “is rarely a good reason to dismiss under Rule 12(b)(6),” Reiser v. Residential

Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004), although there are exceptions. At the

motion to dismiss stage, “the question is only whether there is any set of facts that if proven

would establish a defense to the statute of limitations[.]” Clark v. City of Braidwood, 318 F.3d

764, 768 (7th Cir. 2003). A plaintiff need not anticipate affirmative defenses in his complaint in

order to survive a motion to dismiss. Indep. Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d

930, 935 (7th Cir. 2012). However, “[w]hile complaints typically do not address affirmative

defenses, the statute of limitations may be raised in a motion to dismiss if the allegations of the

complaint itself set forth everything necessary to satisfy the affirmative defense. . . . [It may be]

appropriate [] to consider the statute of limitations [when] the relevant dates are set forth

unambiguously in the complaint.” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (quotation

marks and citation omitted); see also Indep. Trust Corp., 665 F.3d at 935.

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According to the complaint, Bugariu was arrested and imprisoned on April 15, 2010,

released on April 26, 2010, and the charges against him were dismissed on August 11, 2011.

Bugariu filed his complaint in Indiana state court on August 12, 2013. That was more than three

years after his arrest and imprisonment, and more than two years after charges were dropped. All

of which means that it appears that Bugariu filed his complaint after the limitations period had

expired.2 So while I’m not reaching the limitations issue at this point, overcoming it looks to me

like an uphill battle for Bugariu.

I also don’t need to reach the defendants’ Indiana Tort Claims Act or qualified immunity

arguments here, so I won’t address them, and I express no opinion as to their merit. 

CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss (DE 4) is GRANTED and

plaintiff Bugariu’s complaint is DISMISSED WITHOUT PREJUDICE. Bugariu will have 30

days to file an amended complaint should he choose to do so. 

SO ORDERED.

ENTERED: March 12, 2014

/s/ Philip P. Simon

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

2

The complaint doesn’t include the arraignment date, and according to the defendants’

motion to dismiss the complaint misstated the dismissal date (pushing it back a couple of days).

(DE 5 at 5.) These points are immaterial here because (a) I’m not basing my decision on the

statute of limitations, (b) even if I were making a decision based on timeliness, I’d stay within

the four corners of the complaint in ruling on a motion to dismiss (because if I used an

attachment to a motion then I’d be construing the motion as one for summary judgment rather

than one to dismiss), and Bugariu didn’t offer an underlying criminal case number in the

complaint or any case documents attached to the complaint, and (c) the allegations on the face of

the complaint indicate the claims are untimely without bringing in any outside information.

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