UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

JESSICA ELIZABETH THOMAS, )

)

Plaintiff, )

)

vs. ) No. 4:12-CV-073

)

RYAN C. FRENCH, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss and

Direct Entry of Final Judgment, filed by Defendants Brian L.

Phillips, Jeff C. Tislow, and Steven R. Prothero, on May 29, 2013. 

(DE #20.) For the reasons set forth below, the motion is GRANTED

in part and DENIED in part. The motion to dismiss is granted to

the extent that all claims against Brian L. Phillips, Jeff C.

Tislow, and Steven R. Prothero are DISMISSED. However, the

dismissal is without prejudice, and Defendants’ request to direct

entry of final judgment pursuant to Federal Rule of Civil Procedure

54(b) is DENIED. All claims against Ryan C. French REMAIN PENDING. 

Furthermore, provided that she does so within thirty (30) days and

as otherwise directed in accordance with this order, Plaintiff may

file a motion to amend her complaint if she so chooses. 

 
BACKGROUND

Plaintiff, Jessica Elizabeth Thomas (“Thomas”), filed this pro

se complaint pursuant to 42 U.S.C. section 1983 on December 17,

2012. (DE #1.) In it she named four Lafayette Police Department

officers, Ryan C. French (“Officer French”), Brian L. Phillips

(“Officer Phillips”), Jeff C. Tislow (“Officer Tislow”), and Steven

R. Prothero (“Officer Prothero”), as Defendants.1

 (Id. at 2.) 

Thomas alleges that her First, Fourth, Fifth, Eighth, and

Fourteenth amendment rights were violated during an encounter with

the Lafayette police officers on April 2, 2012. (Id.) On May 29,

2013, Officer French filed an answer to Thomas’ complaint. (DE

#19.) That same day, the other three officers filed the instant

motion to dismiss. (DE #20.) On June 11, 2013, Thomas filed a

motion for leave to submit evidence in the form of DVDs. (DE #24.) 

On July 15, 2013, Thomas filed her response to the motion to

dismiss; she also separately filed a motion to amend her complaint,

asking that Lonnie C. Wilson (“Officer Wilson”) be added as a

defendant. (DE #28; DE #29.) Thomas’ motion to amend her

complaint sought to add Officer Wilson to the list of defendants

for his past actions and for “being present” for the events that

occurred on April 2, 2012. (DE #29.) In an order dated October

29, 2013, Magistrate Judge Andrew P. Rodovich denied Thomas’ motion

1

 All of the officers are represented by the same attorney and will be

referred to collectively as “Defendants” where appropriate throughout this

order.

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to submit evidence and also denied the motion to amend her

complaint without prejudice because she failed to comply with

Northern District of Indiana Local Rule 15-1 by not filing a

proposed amended complaint with her motion. (DE #31.) To date, no

further motions or responses have been filed in this case. 

DISCUSSION

In deciding a motion to dismiss under Rule 12(b)(6), the court

must accept all well-pleaded factual allegations as true and view

them in the light most favorable to the plaintiff. Luevano v.

WalMart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). To

survive dismissal, 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). A

plaintiff “must plead some facts that suggest a right to relief

that is beyond the ‘speculative level.’” Atkins v. City of

Chicago, 631 F.3d 823, 832 (7th Cir. 2011). “This means that the

complaint must contain allegations plausibly suggesting (not merely

consistent with) an entitlement to relief.” Lavalais v. Village of

Melrose Park, 734 F.3d 629, 632-33 (7th Cir. 2013) (internal

quotation marks and citation omitted). However, “[a] document

filed pro se is to be liberally construed, and a pro se complaint,

however inartfully pleaded, must be held to less stringent

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standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and

citation omitted). 

Factual Allegations2

Thomas’ complaint alleges that she was driving her car home at

8:45 PM on April 2, 2012; her husband, Brian Thomas (“Brian”), was

in the passenger seat at that time. Thomas stopped at a stop sign

at the intersection of 11th and Main Streets. She and Brian

observed inappropriate activity at a bus stop. At Brian’s 

direction, Thomas turned on her blinkers while Brian retrieved his

phone to make a video recording, purportedly for the police. A

police car pulled up to the intersection. Thomas and Brian thought

the police officer noticed the activity at the bus stop. The

police car, however, proceeded to turn left onto 11th Street. 

Thomas then turned left onto Main Street toward their apartment. 

Upon arriving at the parking lot of the apartment, Thomas

turned off the car and they got out. The Thomases then noticed

that a police car was stopped right behind their car. Both of them

“started to record.” Officer French got out of the police car and

ordered the Thomases back into their car. As they started to do

so, Officer French said “wait,” walked toward Brian, and told Brian

2

 Defendants’ brief in support of their motion to dismiss includes an

accurate representation of Thomas’ factual allegations, and the Court has

borrowed liberally from Defendants’ brief for this section. (See DE #21,

pp.2-3.) 

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to “come here.” Officer French grabbed Brian’s left arm, pulled

him to the middle of the parking lot, and pulled Brian onto the

ground. While still holding Brian’s arm, Officer French pushed his

knee into Brian’s back five times.

Thomas told Officer French that Brian had a broken back and

that she was worried that he would break it again. Thomas insisted

that she and Brian didn’t do anything wrong. Officer French told

her to “shut up.” Officer French then pulled Brian back to his

feet, pushed him back to the ground, and pulled him across the

pavement for five to ten minutes. He then grabbed Brian’s other

arm and told him he was under arrest for resisting arrest. Thomas

responded that Brian had not been resisting and that Officer French

was “beating him up for no reason at all.” 

After putting Brian in handcuffs, Officer French told Thomas

that she was under arrest well. Thomas put her hands behind her

back and turned around so she could be cuffed. Officer French

grabbed her left arm and chest, ripping her T-shirt and bra.

Officer French then pushed Jessica into the pavement and pulled her

across the pavement. After all of this had occurred, Officer

French called for backup. It took the other officers about three

minutes to arrive at the scene.

Officer Tislow and Officer Prothero arrived and stood Brian up

against a white van, and Officer French proceeded to choke Brian. 

Officer Prothero then took Brian to his police car.

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Officer Tislow and Officer French helped Thomas off the ground

to walk with them. She stated that her right hip and knee were

hurting. While Officer French scoffed at her claims of injury,

Officer Tislow lifted her shirt to see that her right hip was

bleeding and her right knee was bleeding through her pants. 

Officer Tislow then called for medics. Thomas was placed in

Officer Tislow’s car until medics arrived. The medics said that

Thomas should be taken to the hospital but that Brian was fine.

During this time, Officer French was “going through” the

Thomases’ car and emptied out Brian’s shoulder bag onto the trunk

of a police car. Officer French took Brian’s medication, money,

cell phone, and the bag to the police department. He also

confiscated Jessica’s video recorder and changed a setting so that

her recording of the incident would play only audio.

Officer Prothero took Brian to jail, and Officer Tislow took

Jessica to the hospital. Officer Prothero spoke to witnesses at

the apartment complex. Thomas alleges that Officer Prothero’s

report shows that he was “coaching” the witnesses as to what to

say.

ANALYSIS

A plaintiff may bring a cause of action under 42 U.S.C.

section 1983 against “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . .

. subjects, or causes to be subjected, any citizen of the United

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States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. In order to prevail on

a section 1983 claim, a plaintiff must show that she “was deprived

of a right secured by the Constitution or federal law” “by a person

acting under color of law.” Thurman v. Vill. of Homewood, 446 F.3d

682, 687 (7th Cir. 2006). Liability under 42 U.S.C. section 1983

must be based upon a finding that the defendant caused the alleged

constitutional deprivation. Palmer v. Marion Cnty., 327 F.3d 588,

594 (7th Cir. 2003). In other words, a defendant must be

“personally responsible” for the constitutional deprivation for an

individual liability claim to succeed. Backes v. Vill. of Peoria

Heights, Ill., 662 F.3d 866, 869 (7th Cir. 2011). Thus, “[b]ecause

there is no theory of respondeat superior for constitutional torts,

a plaintiff ‘must plead that each Government-official defendant,

through the official’s own individual actions, has violated the

Constitution.’” T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010)

(citing Iqbal, 556 U.S. at 676). 

That said, a state actor’s inaction, or failure to intervene,

can subject him to liability under certain circumstances pursuant

to section 1983. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). 

For example, an officer has a duty to “to intervene to prevent a

false arrest or the use of excessive force if the officer is

informed of the facts that establish a constitutional violation and

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has the ability to prevent it.” Montano v. City of Chicago, 535

F.3d 558, 569 (7th Cir. 2008) (citing Morfin v. City of East

Chicago, 349 F.3d 989, 1001 (7th Cir. 2003)). However, to

establish liability, a plaintiff must show that a defendant alleged

to have failed to intervene had both “reason to know” that a

constitutional harm was being committed and had a “realistic

opportunity to intervene to prevent the harm from occurring.” Id.

(citing Yang, 37 F.3d at 285).

Defendants argue that Officer Phillips is entitled to

dismissal because, while he is listed as a defendant, he is not

mentioned anywhere in the body of the complaint. (DE #21,

p. 1.) Defendants next point out that Officer Tislow and Officer

Prothero are alleged to have arrived on the scene after Officer

French had beaten and arrested Thomas so they cannot be held liable

for Officer French’s actions or for a failure to intervene. (Id.) 

Furthermore, they point out that the factual allegations do not

make out a plausible claim of constitutional deprivation by Officer

Tislow or Officer Prothero after they arrived on the scene. (Id.) 

In response, Thomas states:3

Officers Phillips, Tislow and Prothero was

present on April 2, 2012. They help

themselves tp gp throw my car, my husbands and

my belongings. Officers Phillips, Tislow and

Prothero stood by watching and done nothing

while Officer Ryan French was beating my

3

 The Court has inserted Thomas’ response and has not attempted to make

spelling or grammatical corrections. This is true throughout the order when

directly quoting Thomas. 

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husband Brian Thomas witch is a disable

american. Then Officers Tislow and Phillips

again stood by watching and done nothing while

Officer French and Officer Prothero chocking

my husband. They also stood by while officer

French grabbing my chest and wripping my tshirt and bra making my chest area open for

everyone to see my chest, they didnt do

nothing but stood there watching this officer

beating on two citizences. They stood by

watching officer French draging me across the

pavement. They was present and watching this

officer do these things and so much more to my

husband and me. 

(DE #28, p. 1.)

The Court has carefully reviewed Thomas’ complaint and

response brief. While the Court must take the well-pleaded

allegations as true and draw all reasonable inferences in Thomas’

favor, it need not credit the additional facts in her response

brief if they are inconsistent with the allegations of the

complaint. See Chavez v. Ill. State Police, 251 F.3d 612, 650 (7th

Cir. 2001).

Here, as to Officer Phillips, Thomas’ assertions in her

response brief that he went through the contents of her car, stood

by and watched as she and Brian were beaten and dragged across the

pavement, and did nothing when Thomas’ shirt and bra were ripped

open are directly contradicted by the allegations in her complaint. 

She specifically alleges in her complaint that Officer French beat

and arrested her prior to calling for backup and that it was

Officer French alone who conducted the search of her car. (DE #1,

p. 6.) Officer Phillips is not mentioned in the body of Thomas’

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complaint, and her response brief does nothing to clarify her

allegations against him.4

 It has not been adequately alleged that

he committed any unconstitutional acts or that he had reason to

know a constitutional harm was being committed while having had a

realistic opportunity to intervene. See Backes, 662 F.3d at 869

(defendant must be “personally responsible” for the alleged

constitutional deprivation); see also Montano, 535 F.3d at 569

(defendant alleged to have failed to intervene must have had both

“reason to know” of constitutional deprivation and a “realistic

opportunity to intervene” ). As such, the complaint does not state

a claim against Officer Phillips that is plausible on its face, and

all claims as stated against him are DISMISSED without prejudice.

As to Officer Tislow, as Defendants correctly point out, he is

also alleged to have arrived on the scene after Officer French had

allegedly beaten and arrested Thomas. Officer Tislow cannot be

held liable for Officer French’s actions in beating or arresting

Thomas or for failing to intervene to prevent such conduct because,

according to Thomas’ own allegations in her complaint, he was not

4

 In her response brief, Thomas claims that “Officers Tislow and Phillips

again stood by watching and done nothing while Officer French and Officer

Prothero chocking my husband.” (DE #28, p. 1.) Again, this is directly

contradicted by the allegations in her complaint wherein she states that

“[t]he other officers showed up, two went over to Brian along with officer

Ryan French. The two other officers later deified as officer Tislow and

officer Prothero, the took Brian over to the back of our white van and made

Brian stooded there with his back up against it. Officer Ryan French walked

over to Brian and with his right hand started to chock Brian.” (DE #1, p. 6)

(emphasis added). Thomas’ complaint specifically alleges that only two of the

officers, Officer Tislow and Officer Prothero, walked Brian over to the van

and that it was specifically Officer French who choked Brian. 

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present at that time.5 See Backes, 662 F.3d at 869; see also

Montano, 535 F.3d at 569. Furthermore, once Officer Tislow did

arrive, Thomas simply alleges in her complaint that he took Brian

over to the van and stood him up against it,6 helped Thomas off the

ground, noticed her injuries and asked if she needed medical

attention, called for medics to examine her, and eventually took

Thomas to the hospital himself. (DE #1, pp. 6-7.) Thomas also

alleges that Officer Tislow helped Officer French count Brian’s

medication later on at the police station. (Id. at 7.) None of

these allegations describe any sort of constitutional violation by

Officer Tislow. To the extent that Thomas claims in her response

brief that Officer Tislow searched her car, went through Brian’s

5

 Thomas’ statements in her response brief that Officer Tislow stood by and

watched while she was beaten and arrested are in direct contradiction to the

allegations made in her complaint and need not be credited by this Court. 

6

 In her response brief, Thomas states that “Officers Tislow and Phillips

again stood by watching and done nothing while Officer French and Officer

Prothero chocking my husband.” (DE #28, p. 1.) In addition to being in

direct contradiction to the allegations of her complaint (wherein she states

that two officers, Officer Tislow and Officer Prothero, walked Brian over to

the van to stand him up and then “Officer Ryan French walked over to Brian and

with his right hand started to chock Brian”), the Court notes that Brian is

not a plaintiff in this lawsuit. Fourth Amendment rights, which are

considered personal, cannot be vicariously asserted. See United States v.

Amaral-Estrada, 509 F.3d 820, 826 (7th Cir. 2007). Thomas may not allege such

failure to intervene claims on his behalf. See also Niehus v. Liberio, 973

F.2d 526, 532-34 (7th Cir. 1992) (finding that ex-wife who attributed her

divorce to the “psychological consequences” of her ex-husband’s violent

encounter with the police could not recover damages under the constitution for

loss of consortium because “the courts have confined ‘liberty’ to the core of

personhood.”) (collecting cases and citing Coon v. Ledbetter, 780 F.2d 1158,

1160-61 (5th Cir. 1986) (shock experienced by bystander wife who witnessed the

shooting and killing of her husband by police is not actionable)). 

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belongings, and seized its contents,7 those statements are directly

contradicted by the allegations in her complaint wherein she

specifically states that Officer French performed the search and

seizure.8 (DE #1, pp. 6-7.) In sum, the complaint does not state

a claim against Officer Tislow that is plausible on its face, and

all claims stated against him are also DISMISSED without

prejudice.9

As to Officer Prothero, for the same reasons described in the

preceding sections and footnotes, he cannot be held liable for

Officer French’s actions in beating or arresting Thomas or for

failing to intervene to prevent such conduct. See Backes, 662 F.3d

at 869; see also Montano, 535 F.3d at 569. The only other post7

 In her response brief, Thomas specifically states that Officer Phillips,

Officer Tislow, and Officer Prothero “help themselves tp gp throw my car, my

husbands and my belongings.” (DE #28, p. 1) (emphasis added). She does not

allege that they failed to intervene while Officer French conducted the search

and seizure. 

8

 Thomas’ complaint alleges that while Officer Tislow was helping Thomas

receive medical attention, “Officer Ryan French was going through our car and

grabbed out Brian’s shoulder bag. He empty out the bag onto his police car

trunck. Officer Ryan French empty out Brian’s medication. Officer Ryan

French left with Brian’s medication, money, cell phone and shoulder bag and

took them to the police department. Officer Prothero took Brian to the county

jail. Officer Tislow took me to the Old Satin Elizabeth hospital.” (DE #1,

pp. 6-7.) 

9

 Thomas alleges in her response brief that, once at the hospital and

handcuffed to the bed, Officer Tislow watched as she undressed even though the

doctor and nurse asked him to step into the hallway. However, it is not clear

whether the alleged disrobing was at the direction of the medical staff or

Officer Tislow, nor is it clear whether Officer Tislow personally searched

Thomas’ pockets at the hospital. She does not allege that Officer Tislow

touched her person in any way. The Complaint itself is completely silent as

to any of these allegations and simply states that Officer Tislow helped her

deal with her injuries at the scene and then took her to the hospital. 

Because the Court is dismissing the claims against Officer Tislow without

prejudice and is allowing Thomas to file a motion to amend her complaint to

clarify any post-arrival allegations against the officers, the Court need not

address these vague allegations at this point. 

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arrest conduct related to Thomas and attributable to Officer

Prothero that has not been discussed by the Court is that he spoke

to witnesses after the incident and “coached” them for purposes of

completing his report; Thomas simply alleges that “[i]f you look at

his report you can tell that officer Prothero was coaching

witnesses what to say in there report.” (DE #1, p. 7.) She does

not elaborate on this assertion in her response brief. Thomas does

not allege that she was prosecuted, tried, or held in jail, nor

does she suggest that any trial or proceeding was rendered unfair

by Officer Prothero’s report. Defendants are correct that such a

bare allegation is insufficient to state a claim against Officer

Prothero. See Brooks v. City of Chicago, 564 F.3d 830, 833 (7th

Cir. 2009) (dismissal was proper when plaintiff alleged that

defendant officers violated his due process rights by, among other

things, submitting false police reports because a plaintiff cannot

state a claim “by combining what are essentially claims for false

arrest under the Fourth Amendment and state law malicious

prosecution into a sort of hybrid substantive due process claim

under the Fourteenth Amendment.”) (citation omitted)); see also

Alexander v. McKinney, 692 F.3d 553, 556 (7th Cir. 2012) (“In order

to bring a Brady claim, a plaintiff must demonstrate that: (1) the

prosecution suppressed evidence; (2) the evidence was favorable to

the accused; and (3) the evidence was material, that is, there was

a reasonable probability that prejudice ensued.”) (citation

omitted)). As such, the complaint does not state a claim against

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Officer Prothero that is plausible on its face, and all claims

stated against him are DISMISSED without prejudice as well. 

Finally, Defendants ask that final judgment be entered under

Federal Rule of Civil Procedure 54(b). “Rule 54(b) permits entry

of a partial final judgment only when all of one party’s claims or

rights have been fully adjudicated, or when a distinct claim has

been fully resolved with respect to all parties.” Factory Mut.

Ins. Co. v. Bobst Group USA, Inc., 392 F.3d 922, 924 (7th Cir.

2004). Final judgment under Rule 54(b) should only be entered

“when the subjects of the partial judgment do not overlap with

those ongoing in the district court.” Id. (citing Horn v. Transcon

Lines, Inc., 898 F.2d 589 (7th Cir. 1990); Jack Walters & Sons

Corp. v. Morton Building, Inc., 737 F.2d 698 (7th Cir. 1984)). A

district court must first determine that a judgment is final and

must then consider whether there is any just reason for delay. 

Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8 (1980).

Here, because the Court has dismissed the claims against

Officer Phillips, Officer Tislow, and Officer Prothero without

prejudice, the judgment is not final and Defendant’s request to

enter judgment pursuant to Federal Rule of Civil Procedure 54(b) is

DENIED. While it is clear that Thomas does not have viable claims

against these officers based on the actions of Officer French prior

to their arrival on the scene, the Court will allow Thomas to move

to amend her complaint in order to clarify any post-arrival

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allegations that are not inconsistent with her original complaint. 

If Thomas feels she can amend her complaint in this manner and in

accordance with Federal Rule of Civil Procedure 11,10 she may file

a motion to amend her complaint provided that she: (1) does so

within thirty (30) days of the date of this order; (2) follows the

procedural requirements of Northern District of Indiana Local Rule

15-1 which include reproducing the entire pleading as amended; and

(3) clearly states the nature of and reasons for each of her claims

against each defendant in detail. 

CONCLUSION

For the reasons set forth above, the instant motion is GRANTED

in part and DENIED in part. The motion to dismiss is granted to

the extent that all claims against Brian L. Phillips, Jeff C.

Tislow, and Steven R. Prothero are DISMISSED. However, the

10 Federal Rule of Civil Procedure 11 provides, in part, that “[e]very

pleading, written motion, and other paper must be signed by . . . a party

personally if the party is unrepresented. The paper must state the signer's

address, e-mail address, and telephone number . . .” and “[b]y presenting to

the court a pleading, written motion, or other paper . . . [an] unrepresented

party certifies that to the best of the person's knowledge, information, and

belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to

harass, cause unnecessary delay, or needlessly increase the cost

of litigation; 

(2) the claims, defenses, and other legal contentions are

warranted by existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing law or for

establishing new law; [and]

(3) the factual contentions have evidentiary support or, if

specifically so identified, will likely have evidentiary support

after a reasonable opportunity for further investigation or

discovery . . . .” 

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dismissal is without prejudice, and Defendants’ request to direct

entry of final judgment pursuant to Federal Rule of Civil Procedure

54(b) is DENIED. All claims against Ryan C. French REMAIN PENDING. 

Furthermore, provided that she does so within thirty (30) days and

as otherwise directed in accordance with this order, Plaintiff may

file a motion to amend her complaint if she so chooses. 

DATED: March 28, 2014 /s/RUDY LOZANO, Judge

United States District Court

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