UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DR. TONEY FORD, SR., )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:14-CV-320 PS 

)

DEREK SESSOMS, DAVID GILBERT, )

JAMES LOFTIN, WAYNE SEYBOLD, )

DON BATCHELOR, FRED TROXXEL, )

HENRY SMITH, MADONNA FRENCH, )

JOCELYN WHITTAKER, FRED )

THOMPSON JR., BRAD LUZZADER )

JIM BRUNER, MARION (IN) POLICE )

DEPARTMENT, DAVID PENTICUFF )

AND MISHELE WRIGHT, )

)

Defendants. )

OPINION AND ORDER

Dr. Toney Ford, Sr., a pro se plaintiff, seeks leave to file a complaint without payment of

the ordinarily required filing fee. His Petition to Proceed without Pre-Payment of Fees and Costs

[DE 2] is a sworn declaration supporting his financial eligibility for the request. Nonetheless,

under 28 U.S.C. §1915A, leave to file without the payment of the filing fee subjects Ford’s

complaint to a screening review, and to dismissal if I determine that the action is frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

against a defendant who is immune from such relief. 

Ford’s pleading is titled “Complaint for Civil Rights Violations, False Arrest, Wrongful

Prosecution, and Libel and Slander.” [DE 1.] Defendants include members of the Marion,

Indiana Police Department -- Chief of Police David Gilbert, Lieutenant James Loftin and Officer

Derek Sessoms. The mayor of Marion, Wayne Seybold, is named, along with eight members of
the City Council – Don Batchelor, Fred Troxxel, Henry Smith, Madonna French, Jocelyn

Whittaker, Brad Luzzader, Paul Thompson Jr., and Jim Bruner. Editor David Penticuff and

reporter Mishele Wright of the Chronicle Tribune newspaper of Marion are also defendants. 

Ford’s claims arise from a strange incident in which he alleges that he was followed by

what turned out to be a police car, causing him to have a traffic accident, after which he was

arrested on unexplained charges and unreasonably denied release on bond. Ford further

complains that in the aftermath of these events, the Marion Chronicle Tribune published an

article containing “false accusations and other slanderous and misleading statements” concerning

the matter, so as cover up the improper actions of the police and public officials involved. [DE 1

at ¶35.] Ford’s factual allegations do not identify the driver of the car that allegedly caused Ford

to have an accident, nor do they name the police officers who arrived on the scene thereafter and

placed him under arrest. [DE 1 at ¶29.] Despite this gap in the story, Count I attributes Ford’s

“initial harassment, subsequent arrest and unlawful detention” to “Defendant Sessoms or those

acting on behalf of Defendant Sessoms.” [DE 1 at ¶44]. 

To survive dismissal, the complaint must state a claim for relief that is plausible on its

face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “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.” Id. at 603. Thus, the

plaintiff “must do better than putting a few words on paper that, in the hands of an imaginative

reader, might suggest that something has happened to her that might be redressed by the law.”

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). Nevertheless, I must bear in mind

that “[a] document filed pro se is to be liberally construed, and a pro se complaint, however

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inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 

Counts I and III purport to be claims for violations of Ford’s free exercise rights under

the first amendment, brought under 42 U.S.C. §1983. The allegations of Count I refer to

defendant Sessoms, a Marion police officer, and unspecified “others.” [DE 1 at ¶¶45, 46.] The

actions complained of are “initial harassment, subsequent arrest and unlawful detention, cruel

and unusual fine, [and] libelous and slanderous posting with the local media.” [Id. at ¶44.] 

Count III names the Mayor, the Police Chief, Lieutenant Loftin, and the eight City Council

members, and charges them with vicarious liability for the unlawful acts of defendant Sessoms.

The free exercise clause of the first amendment is “an absolute prohibition against

governmental regulation of religious beliefs.” Bob Jones Univ. v. United States, 461 U.S. 574, 

603 (1983). “Free-exercise problems usually rise when a law, regulation, or some action of a

public official interferes with a religiously motivated practice, forbearance, or other conduct.” 

Korte v. Sebelius, 735 F.3d 654, 676 (7th Cir. 2013). Ford’s allegations do not disclose any

activity on his part in the nature of religious activity that would bring into play the protections of

the free exercise clause. Even the most generous construction does not yield a plausible claim

on the allegations and theory set forth in Counts I and III of Ford’s complaint, which will be

dismissed without prejudice.

Counts II and IV have a similar relationship with one another. Count II asserts that

Ford’s equal protection rights were violated when Sessoms “or those acting on behalf of

Defendant Sessoms” discriminated against Ford because of his race and nationality. [DE 1 at

¶49.] The specific challenged conduct referred to is Ford’s “unlawful arrest and detention.” [Id.] 

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Count IV asserts the vicarious liability of the other police and municipal official defendants for

Sessoms’ equal protection violations, by their authorization of and acquiescence in that conduct,

and due to a custom and policy of deliberate indifference to Ford’s constitutional rights. Count

II adequately pleads an equal protection claim against Sessoms, if the complaint is generously

construed to allege that Sessoms was one of the police officers who acted to harass, arrest and

detain Ford and did so based on his race or nationality.

The vicarious liability claim against the other defendants in Count IV is on shakier

ground. “Because there is no vicarious liability under Section 1983, these defendants could be

liable only if they personally did something that violated [plaintiff’s] rights.” Miller v.

Harbaugh, 698 F.3d 956, 960 (7th Cir. 2012). “Section 1983 limits liability to public employees

‘for their own misdeeds, and not for anyone else’s.’” Hoban v. Godinez, 502 F.3d Appx. 574,

578 (7th Cir. 2012), quoting Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). The

complaint contains no factual allegations of the personal involvement of Mayor Seybold, Chief

Gilbert, Lt. Loftin or the city council members in the arrest and detention of Ford, but only that

“[d]espite knowledge and adequate opportunity to learn of the misconduct of [Sessoms] and to

remedy such misconduct,” they “adopted, approved, and ratified the acts, omissions, and

misconduct of Defendant Sessoms.” [DE 1 at ¶41.] 

Under Monell v. Dep’t of Social Services, 436 U.S. 658, 694 (1978), a violation of

someone’s rights resulting from a municipal custom or policy may result in the city’s liability. 

But a municipal custom or policy does not somehow transfer liability to other individual

defendants who had no personal role in the alleged violation. “Public officials do not have a

free-floating obligation to put things to rights.” Burks, 555 F.3d at 595. A “contention that any

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public employee who knows (or should know) about a wrong must do something to fix it is just

and effort to evade, by indirection, Monell’s rule that public employees are responsible for their

own misdeeds but not for anyone else’s.” Id. at 596. The absence of allegations that the mayor,

the police chief, lieutenant, and the members of the city council took any actions that caused or

contributed to the violation of Ford’s rights means that the claim of an equal protection violation

against these defendants lacks facial plausibility, because the there’s no reasonable inference

from the pleading that they could be liable to Ford. Count IV will be dismissed without

prejudice.

Count V of the complaint is labeled “Violations of Title VI of the Civil Rights Act of

1964" and invokes 42 U.S.C. §2000d, which prohibits racial discrimination in programs

receiving federal financial assistance. The allegations of the complaint do not identify any

program receiving federal financial assistance. Count V contains references to the privileges and

immunities clause [DE 1 at ¶66] and to a failure to train defendant Sessoms and other members

of the police department [Id. at ¶68], which are conclusions unsupported by facts and don’t

support a facially plausible claim of any kind, much less one under Title VI. Count V will be

dismissed without prejudice.

The remaining five counts of the complaint, Counts VI through IX (but with two

different Count VIIIs), are all claims under state law: breach of implied contract, breach of

implied covenant of good faith and fair dealing, promissory estoppel, wrongful prosecution, libel

and slander. There is no federal question jurisdiction over these claims, and it does not appear

that diversity jurisdiction exists over them, given that plaintiff Ford and all the defendants are

citizens of Indiana. My jurisdiction over these claims would have to be supplemental

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jurisdiction under 28 U.S.C. §1367 on the ground that these claims are sufficiently related to the

remaining federal claim.

But I can decline to exercise supplemental jurisdiction for a number of reasons, several of

which I find applicable here. I can decline to exercise supplemental jurisdiction over claims that

raise novel or complex issues of state law. See §1367(c)(1). Applying legal theories of implied

contract, the implied covenant of good faith and fair dealing, and promissory estoppel against

municipal officers and officials arising out of a disputed arrest and detention certainly presents

novel issues of state law that are at least potentially complex. Moreover, contending with five

different state law theories against a multiplicity of municipal defendants plus the libel and

slander claims that involve the newspaper defendants would “substantially predominate” over

the sole remaining federal claim – the equal protection claim against defendant Sessoms – that

will otherwise survive this screening. On that basis, §1367(c)(2) also supports my decision to

decline to exercise supplemental jurisdiction over Counts VI through IX, which will be

dismissed without prejudice.

The case will proceed on Count II against defendant Sessoms. Because Ford is

proceeding in forma pauperis, the United States Marshal will serve defendant Sessoms without

cost. However, Ford has not submitted the required USM-285 form. Though Ford is not

obligated to have the United States Marshal serve defendant Sessoms, if he wants them to do so,

he must properly complete and file one of these forms. Without it, the U.S. Marshals Service

cannot effect service of process in this case.

For these reasons, the court:

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(1) GRANTS plaintiff Ford’s Petition to Proceed without Pre-Payment of Fees and Costs

[DE 2];

(2) GRANTS plaintiff leave to proceed on Count II of his complaint against defendant

Sessoms;

(3) DISMISSES all the other counts without prejudice, and DISMISSES all defendants

other than Sessoms;

(4) DIRECTS the clerk to send Ford a blank USM-285 form;

(5) GRANTS Ford to and including December 5, 2014, to either return the completed

form or notify the court that he would like to have the clerk issue the summons to him so that he

can effect service by some other method permitted by Federal Rule of Civil Procedure 4; 

(6) CAUTIONS Ford that if he does not respond by the deadline, this case will be

dismissed without further notice;

(7) in the event the USM-285 is returned DIRECTS the United States Marshals Service

to effect service of process on defendant Sessoms, pursuant to 28 U.S.C. § 1915(d); and

(8) ORDERS defendant Sessoms to respond, as provided for in the FEDERAL RULES OF

CIVIL PROCEDURE, only to the claim for which the plaintiff has been granted leave to proceed in

this screening order.

SO ORDERED.

ENTERED: November 20, 2014.

 /s/ Philip P. Simon 

Philip P. Simon, Chief Judge

United States District Court

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