UNITED STATES DISTRICT COURT

NORTHER DISTRICT OF INDIANA

FORT WAYNE DIVISION

EDDIE TOWNSEND, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:13-CV-315

)

M. WILSON, et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court is pro se Plaintiff Eddie Townsend’s motion to amend his complaint

(Docket # 14), seeking to dismiss his claims against John/Jane Doe, “an employee of the Allen

County Prosecuting Attorney Office” (Compl. ¶ 5); and add state law claims of negligence, false

arrest, false imprisonment, and malicious prosecution against the individual Defendant officers.

Defendants do not object to Plaintiff’s dismissal of the Doe Defendant, but oppose Plaintiff’s

assertion of state law tort claims against the individual officers, contending that Indiana Code §

34-13-3-5(b) precludes a suit against employees of a governmental entity that alleges they

committed torts within the course and scope of their employment. (Docket # 15.)

A. Background

Plaintiff filed his complaint against Defendants in Allen Superior Court on September 25,

2013, advancing various federal civil rights claims arising out of his arrest. (Docket # 1.) 

Defendants removed the case to this Court on October 29, 2013 (Docket # 2), and filed an

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answer on November 22, 2013 (Docket # 7).1

 The Doe Defendant filed a motion to dismiss for

failure to state a claim on December 6, 2013. (Docket # 10.) On January 2, 2014, Plaintiff filed

the instant motion to amend. (Docket # 14.)

B. Standard of Review

Under Federal Rule of Civil Procedure 15, “[a] party may amend [his] pleading once as a

matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a

responsive pleading is required, 21 days after service of a responsive pleading or 21 days after

service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P 15(a)(1). 

“In all other cases, a party may amend its pleading only with the opposing party’s written

consent or the court’s leave. The court should freely give leave when justice so requires.” Fed.

R. Civ. P. 15(a)(2). 

The right to amend a pleading “is not absolute . . . .” Brunt v. Serv. Emps. Int’l Union,

284 F.3d 715, 720 (7th Cir. 2002). Leave to amend can be denied for undue delay, bad faith,

dilatory motive, prejudice, or futility. Ind. Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347

F.3d 652, 655 (7th Cir. 2003).

C. Analysis

As Defendants emphasize, Indiana Code § 34-13-3-5(b) states that “[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.” To advance a state law tort lawsuit against an officer

individually, a plaintiff must allege, among other things, that the officers acted “clearly outside

1

 Plaintiff incorrectly recites in his motion that Defendants have not yet filed an answer to his complaint.

(Mot. for Leave to File Am. Compl. ¶ 2.) Because an answer was filed on November 22, 2013, Townsend must have

leave of court to amend his complaint. 

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of the scope of [their] employment.” Ind. Code § 34-13-3-5(c)(2). 

Here, Plaintiff asserts in his proposed amended complaint that the Defendant officers

were “all employees of the Fort Wayne Police Department and . . . acting in their official and

individual capacities” and “under the color of state law.” (Proposed Am. Compl. ¶¶ 22-23.) 

Thus, neither Plaintiff, nor Defendants in their answer, suggest that the Defendant officers were

acting outside the scope of their employment with respect to the events giving rise to this

lawsuit. As a result, Plaintiff’s attempt to advance state law tort claims against the individual

Defendant officers is futile. See, e.g., Wilson-El v. Majors, No. 1:12-cv-638, 2012 WL 5929983,

at *3 (S.D. Ind. Nov. 27, 2012) (dismissing state law tort claims against individual defendant

officers where the complaint alleged that the officers were “employed by and on duty with the

Marion County jail at the time of the incident”). 

Of course, Plaintiff could advance these state law tort claims against the City of Fort

Wayne as the Defendant officers’ employer under the doctrine of respondeat superior. See

Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008) (“The general rule is that vicarious liability

will be imposed upon an employer under the doctrine of respondeat superior where the

employee has inflicted harm while acting within the scope of employment.” (citations and

internal quotation marks omitted)); see also Fidler v. City of Indianapolis, 428 F. Supp. 2d 857,

866 (S.D. Ind. 2006) (opining that plaintiff could pursue his state law tort claims against the City

of Indianapolis, but not against the individual Defendant officers); see generally Ind. Code § 34-

13-3-5(d) (“Subject to [certain exceptions], the governmental entity shall pay any judgment of a

claim or suit against an employee when the act or omission causing the loss is within the scope

of the employer’s employment, regardless of whether the employee can or cannot be held

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personally liable for the loss.”). Plaintiff has not, however, named the City of Fort Wayne as a

defendant in this case.

In sum, Plaintiff’s motion to amend will be GRANTED, and his claims against John/Jane

Doe, “an employee of the Allen County Prosecuting Attorney” (Compl. ¶ 5), will be dismissed. 

His state law claims of negligence, false arrest, false imprisonment, and malicious prosecution

against the individual Defendant officers, however, will be STRICKEN without prejudice to his

refiling them against the City of Fort Wayne as the officers’ employer.

D. Conclusion

For the foregoing reasons, Plaintiff’s motion to amend his complaint (Docket # 14) is

GRANTED and the Clerk is DIRECTED to show his amended complaint filed, except that

Plaintiff’s state law tort claims against the individual Defendant officers are STRICKEN without

prejudice. Since Plaintiff’s claims against John/Jane Doe, an employee of the Allen County

Prosecuting Attorney, have been dropped from the amended complaint, Defendant Allen County

Prosecutor’s Motion to Dismiss (Docket # 10) is deemed MOOT. 

SO ORDERED.

Enter for January 27th, 2014.

S/Roger B. Cosbey 

Roger B. Cosbey

United States Magistrate Judge

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