UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOSHUA R. JONES, b/n/f )

MARCELLA AMOS; ESTATE OF )

JOSHUA R. JONES by Administratrix )

MARCELLA AMOS; and MARCELLA )

AMOS, individually, )

)

Plaintiffs, )

)

v. ) 2:14-cv-00026

)

TOWN OF HIGHLAND, INDIANA; )

DAN VASSER, individually and in his )

official capacity as President of )

Highland Town Council; HIGHLAND )

POLICE DEPARTMENT; PETER )

HOJNICKI, individually and in his )

official capacity as Town of )

Highland Chief of Police; SHAWN M. )

ANDERSON, individually and in his )

official capacity as Corporal in Highland)

Police Department; BRIAN ORTH, )

individually and in his official )

capacity as Officer in Highland Police )

Department, )

)

Defendants. )

OPINION AND ORDER

Plaintiff Marcella Amos filed this suit on her own behalf and on behalf of her

deceased son Joshua Jones and his Estate. Amos alleges that she asked the police to

come to her home to do a wellness check on Jones, who suffered from schizophrenia.

Two police officers came, the encounter became violent, and the police officers shot

Jones several times, killing him. Amos is suing the police officers who killed Jones, as
well as the police chief, the police department, the town, and the president of the town

council. Her federal and state claims allege excessive force, wrongful death,

unconstitutional policies or practices, and intentional infliction of emotional distress.

The defendants moved to dismiss certain claims against certain defendants. Amos

never responded. For the reasons below, the motion is GRANTED IN PART AND

DENIED IN PART.

FACTUAL BACKGROUND

Before his death in 2012, Jones lived with his mother, Amos. (Compl. ¶ 11.) Jones

suffered from schizophrenia. (Id. ¶ 12.) The tragic circumstances surrounding Jones’s

death started when Jones was acting out because of his illness. Late that night, or

shortly after midnight, Amos called her mother and asked her to call the police to do a

wellness check on Jones at Amos’s home. Highland Police Corporal Anderson and

Officer Orth responded to the call at approximately 12:45 a.m. (Id. ¶¶ 13-14.) Jones

opened the door for them and told Amos that the police were there. (Id. at ¶ 15.) Amos

let the officers in the house and told them that Jones was schizophrenic. She said that

earlier in the day Jones had been in Amos’s bedroom with a butcher knife, and also that

he had put his hands around her neck. (Id. ¶¶ 16-17.) This must have enraged Jones

because he responded by calling his mom a “n______” and then, in the presence of the

two officers, he hit her in the jaw with his fist. Amos fell to the ground in the hallway

and Jones landed on top of her, trying to hit her. (Id. ¶¶ 17-18.) Officer Orth attempted

to restrain Jones, and Officer Anderson used his Taser twice, attempting to end the

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struggle between Jones and Amos. (Id. ¶¶ 19-20.) Amos was able to escape, and moved

away, but she could see Jones being held down on the hallway floor. Amos heard Jones

tearfully shouting “get off me.” (Id ¶ 21.) Amos, feeling overwhelmed, moved away,

then heard gunshots. (Id. ¶ 22.) When Amos asked police officers outside of her home

what had happened to her son, she was given no answer. (Id. ¶ 23.) She then saw Jones

taken to an ambulance lying naked on a white sheet on a gurney. (Id. ¶ 24.) 

The coroner reported Jones’s cause of death as traumatic injuries due to multiple

gunshot wounds. The autopsy revealed nine gunshot wounds. (Id. ¶¶ 25, 24a.1

)

DISCUSSION

Amos’s Complaint alleges four claims. The defendants’ motion to dismiss

challenges one claim in its entirety, and two others only with respect to particular

defendants. I won’t address the claims the defendants don’t challenge. I will take up the

claims they do challenge, ultimately granting the defendants’ motion in part and

denying it in part. The defendants make several disparate arguments for the dismissal

of various parts of Amos’s claims: (a) Highland Town Council President Dan Vasser

should be dismissed because no relief is sought against him specifically; (b) Hojnicki

can’t be sued in his individual capacity because he wasn’t directly involved in the

alleged excessive use of force that led to this suit; (c) Indiana Tort Claims Act immunity

applies to the state law claims; and (d) the Highland Police Department can’t be sued

1

 The Complaint contains two paragraphs 24 and two paragraphs 25. For clarity I

refer to the second of each as 24a and 25a, respectively.

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because it’s not an entity independent from the Town. This piecemeal approach to

analyzing and dismissing claims against particular defendants is complicated, but it

will streamline the case for discovery, and for future proceedings and briefing. My task

has been made much more difficult by the fact that the plaintiff hasn’t bothered to

respond to the motion. 

For starters, I note that a plaintiff is not obligated to respond to a motion to

dismiss. This is because a plaintiff “can simply rest on the assumed truthfulness and

liberal construction afforded [her] complaint.” Curtis v. Bembenek, 48 F.3d 281, 287 (7th

Cir. 1995); see also Bugariu v. Town of St. John, No. 2:13-cv-00355, 2014 U.S. Dist. LEXIS

31782, at *4-5 (N.D. Ind. Mar. 12, 2014). It is probably not the wisest course for a litigant

to take, but in any event, the motion is now ripe for decision, although not fully briefed.

 Federal Rule of Civil Procedure 8 sets out the baseline for a viable claim. It

requires “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he traditional purpose of notice pleading . . . [is to]

give[] defendants fair notice of the claims against them and a reasonable opportunity to

form an answer.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).

To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

“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). At this stage I will accept all factual allegations as true and draw all reasonable

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

supported by purely conclusory statements. See Iqbal, 556 U.S. at 678. Therefore I must

first identify and disregard all “allegations in the complaint that are not entitled to the

assumption of truth,” especially any legal conclusions. Id. at 680-81. Then I will analyze

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

possibly 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.

Under 42 U.S.C. § 1983 a plaintiff can sue a defendant who “acts under color of

state law and violates a plaintiff’s rights under the Constitution or laws of the United

States.” Pittman v. Cnty. of Madison, 746 F.3d 766, 775 (7th Cir. 2014). 

Before delving into the details of the claims, one defendant must be dismissed

from the case entirely. “The naming of the Town’s Police Department as a defendant

adds nothing; it is almost certainly not a suable entity separate from the Town.” West by

& Through Norris v. Waymire, 114 F.3d 646, 646-47 (7th Cir. 1997) (citations omitted); see

also, e.g., Wiseman v. City of Mich. City, 966 F. Supp. 2d 790, 796 (N.D. Ind. 2013)

(collecting cases); Nevinger v. Town of Goodland, No. 4:11-cv-00025, 2011 U.S. Dist. LEXIS

75026, at *4-5, (N.D. Ind. July 12, 2011) (“Under Indiana law, although a ‘unit’ of local

government may be sued, its individual departments including its police department

may not. IC 36-1-4-3. Indiana Code defines a ‘unit’ of government as a ‘county,

municipality, or township.’ IC 36-1-2-23. The Police Department is none of these.”) The

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Highland Police Department is therefore dismissed from the suit, and won’t be

addressed in my consideration of the various claims.

1. Count 1: Unconstitutional Policy of Excessive Use of Police Force

Amos’s first claim is brought pursuant section 1983 against the Town of

Highland, Police Chief Hojnicki, Officers Anderson and Orth, the (now dismissed)

Police Department, and possibly Town Council President Dan Vasser. Amos states that

the Town and Police Department, and their leadership, permitted excessive use of

police force to such an extent that it constituted a policy or custom. (Compl. ¶¶ 27-37.)

Policymakers can be sued in their official capacity for promulgating

unconstitutional policies or allowing unconstitutional practices so regularly that they

have the force of policy. This is referred to as Monell liability. Valentino v. Vill. of S. Chi.

Heights, 575 F.3d 664, 674-75 (7th Cir. 2009) (citing Monell v. City of New York, 436 U.S.

658 (1978)). A plaintiff “can establish a ‘policy or custom’ by showing: (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.” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)

(internal quotation marks and citation omitted). Thus Monell liability may involve a

formal policy, but it need not. “‘If the same problem has arisen many times and the

municipality has acquiesced in the outcome, it is possible (though not necessary) to

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infer there is a policy at work.’” Valentino, 575 F.3d at 675 (quoting Lewis v. City of

Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Phelan v. Cook Cnty., 463 F.3d 773, 789

(7th Cir. 2006) (quoting Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)))). 

In order to recover against any particular state actor individually, a plaintiff must

show that the named defendant was personally involved in the alleged constitutional

violations. See Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 614-15 (7th Cir. 2002) (citing

Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)); see also J.H. v. Johnson, 346 F.3d

788, 793 (7th Cir. 2003), cert. denied, 541 U.S. 975 (2004), reh’g and reh’g, en band, denied,

2003 U.S. App. LEXIS 24287 (7th Cir. Dec. 1, 2003). Thus, a supervisor won’t be held

liable simply because she was a supervisor, but she may be liable if the violation

occurred with her knowledge or consent, or if she exhibited deliberate, reckless

indifference to subordinates’ misconduct. See Sanville, 266 F.3d at 740 (citations

omitted). 

An official capacity suit, on the other hand, is a “way of pleading an action

against an entity” of which the named defendant is an agent, but where “the real party

in interest is the entity.” Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). An official

capacity suit against an officeholder is therefore redundant to a suit against the office.

See, e.g., Budd v. Motley, 711 F.3d 840, 843-44 (7th Cir. 2013). The key to deciding the

defendants’ motion to dismiss here is understanding who can be sued, and in what

capacity, for section 1983 policy claims.

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The defendants concede that Hojnicki may be sued under Count 1 in his official

capacity (DE 10 at 3), but argue that Dan Vasser should be dismissed from the case

because “no relief is sought against [him] . . . in the allegations of the Complaint or in

the prayers for relief.” (DE 11 at 2.) This isn’t quite true, however. In the allegations of

her first claim, Amos states “defendant TOWN OF HIGHLAND, under the leadership

of DAN VASSER does not properly investigate police use of excessive force and

discipline officers for use of excessive force.” (Compl. ¶ 31.) While Amos didn’t list

Vasser in the Count 1 heading or the prayer for relief, the Complaint put Vasser on

notice of the allegations against him. Amos therefore states a Monell claim against

Vasser in his official capacity for an unconstitutional policy or practice under section

1983.

Nonetheless, the official capacity claims against Hojnicki and Vasser under

section 1983 are redundant, given the additional claim leveled against the Town

directly. Suing the individuals as officials is merely another way to sue the Town, and

including two unnecessary defendants muddles the claim without adding any benefit

for Amos. Vasser and Hojnicki are therefore dismissed from Count 1 in their official

capacities.

Now I turn to whether Amos’s suit is appropriate against defendants in their

individual capacities. The defendants argue that Police Chief Hojnicki can’t be sued in

his individual capacity in this case because “the Complaint does not allege any personal

involvement by him in the alleged use of force.” (DE 11 at 2.)

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To sustain a section 1983 claim against Hojnicki and Vasser, Amos must

adequately plead that they participated in the constitutional violation. Amos alleges

that the Town of Highland and its Police Department, led by Vasser and Hojnicki

personally, encourage use of excessive police force (through failure to train, supervise,

and investigate claims of wrongdoing) to the extent that excessive force is the policy or

accepted practice of the Highland Police Department. (Compl. ¶¶ 28, 31.) It is this

unconstitutional policy or practice that allegedly led to the constitutional deprivations

at issue in this case. (Compl. ¶ 34.) These allegations are fairly conclusory, and while

they make some sense with respect to Hojnicki (logically the police chief would be

personally responsible for police policy and investigating police misconduct), Amos

hasn’t met her burden with respect to Vasser. There is no suggestion in the complaint

that Vasser personally had any connection to police policy generally or the offending

policy in particular, and his position alone doesn’t necessarily connect directly to the

formation of police policy. The complaint therefore adequately pleads a section 1983

claim against Hojnicki in his individual capacity. I note that this won’t be an easy claim

to prove, and will require a showing that a constitutional violation occurred with

Hojnicki’s encouragement, or that he exhibited deliberate, reckless indifference to

subordinates’ misconduct.

Finally, I note that the heading of Count 1 lists Officers Anderson and Orth,

although the allegations in the Count sound in Monell liability. Monell liability for

unconstitutional policy, practice or custom naturally attaches to the actions of

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policymakers. There is no suggestion that either Anderson or Orth was a policymaker.

The complaint therefore doesn’t adequately allege a Monell claim against Officers

Anderson and Orth. Even if it did, they would be dismissed from this Count for the

same reason I dismissed Vasser and Hojnicki from this count. Officers Anderson and

Orth are therefore dismissed from Count 1 in their official and individual capacities, to

the extent that it was directed at them in either capacity.

2. Count 3: Intentional Infliction of Emotional Distress on Amos

Amos’s third Count alleges a state law claim on her own behalf of intentional

infliction of emotional distress against Officers Anderson and Orth. Amos bases her

claim on the officers’ failure to separate Amos from Jones, and then failure to tell Amos

what happened. (Compl. ¶¶ 39-40.) The defendants argue that the officers are immune

to such claims for intentional infliction of emotional distress under the Indiana Tort

Claims Act. (DE 11 at 5.) I agree with the defendants, because Anderson and Orth were

acting within the scope of their employment, so this claim against them is dismissed.

To make a successful intentional infliction of emotional distress claim a plaintiff

must show that the defendant: “(1) engages in extreme and outrageous conduct (2)

which intentionally or recklessly (3) causes (4) severe emotional distress to another.”

Brown v. Indianapolis Hous. Agency, 971 N.E.2d 181, 188 (Ind. Ct. App. 2012). Even

without immunity issues, this is a very difficult claim to prove, and requires showing

that the defendant’s behavior “exceeds all bounds typically tolerated by a decent society

and causes mental distress of a very serious kind.” Curry v. Whitaker, 943 N.E.2d 354,

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361 (Ind. Ct. App. 2011). While I’m not sure Amos even adequately alleges a claim for

intentional infliction of emotional distress, the defendants skip that argument and move

on to immunity, so, lacking any briefing on the issue, I will do the same.

Under the Indiana Tort Claims Act, a government entity or employee isn’t liable

for loss resulting from the enforcement of a law conducted within the scope of a

government employee’s employment. I.C. § 34-13-3-3(8)(A). To determine whether a

police officer is immune we determine whether he was acting in the scope of his

employment when the plaintiff was injured, and whether the officer was enforcing a

law at the time. Snyder v. Smith, No. 1:13-cv-00576, 2014 U.S. Dist. LEXIS 33321, at *72

(S.D. Ind. Mar. 14, 2014) (citing Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App.

2010) (citing City of Anderson v. Davis, 743 N.E.2d 359, 364 (Ind. Ct. App. 2001))). The

purpose of a police department includes preserving the peace, preventing offenses,

guarding the public health, and enforcing laws. A police officer is acting within the

scope of his employment when he is doing activities involving the pursuit of this

purpose. Pursuing this purpose negligently doesn’t mean the officer is no longer acting

within the scope of his employment, and, in fact, it is towards such instances of

negligence that Tort Claims Act immunity is often directed. See Harness v. Schmitt, 924

N.E.2d 162, 166 (Ind. Ct. App. 2010); City of Anderson v. Davis, 743 N.E.2d 359, 364-65

(Ind. Ct. App. 2001). “Even criminal acts may be considered as being within the scope of

employment if the criminal acts originated in activities so closely associated with the

11
employment relationship as to fall within its scope.” Bushong v. Williamson, 790 N.E.2d

467, 473 (Ind. 2003) (quotation marks, citation omitted). 

Another part of Indiana’s Tort Claims Act also addresses government

employees’ personal liability. After reiterating 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,” the statute explains what must be alleged to

successfully sue the employee if he was acting outside the scope of employment. I.C. §

34-13-3-5(b). A viable claim against a government employee personally must allege that

the wrongful act was subject to one of several aggravating circumstances, specifically

that it was (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 law also notes that the allegations must be supported by a reasonable factual basis.

I.C. § 34-13-3-5(c). 

Immunity is an affirmative defense. Haggerty v. Anonymous Party 1, 998 N.E.2d

286, 291 (Ind. Ct. App. 2013); see also Wilson v. City of Chi., No. 13-1279, 2014 U.S. App.

LEXIS 13459, at *12 (7th Cir. July 14, 2014). Typically “complaints do not have to

anticipate affirmative defenses to survive a motion to dismiss. The exception occurs

where, as here, the allegations of the complaint itself set forth everything necessary to

satisfy the affirmative defense . . . .” United States v. Lewis, 411 F.3d 838, 842 (7th Cir.

2005) (citation omitted), reh’g denied, 2005 U.S. App. LEXIS 17023, at *1 (7th Cir. Aug. 11,

2005).

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According to the allegations, Officers Anderson and Orth went to Amos’s home

when they were called to do a wellness check. They were clearly acting within the scope

of their employment; in fact, there is no allegation to the contrary. The first count, for

Monell liability, attempts to hold the officers’ employers liable for the policy or custom

under which the officers carried out their employment duties. The situation escalated as

Anderson and Orth tried to stop Jones’s assault on Amos, an enforcement of law. Amos

alleges that the failure to separate Amos from Jones “was intentional and done with

disregard for her safety and rights.” (Compl. ¶ 39.) In the same paragraph, however,

Amos alleges that the officers “were generally negligent and failed to maintain control

of the situation.” (Id.) Amos has attempted to inject language that might take her claim

out of Tort Claims Act immunity, but the facts she alleges indicate that the officers were

acting within the scope of their police duties in performing a wellness check and

interceding when Jones attacked Amos. They were only present because they were

acting within the scope of their employment, and Amos can only claim that they had

any duty to “maintain control of the situation” by dint of their employment. See, e.g.,

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

for dismissal of intentional infliction of emotional distress claim where officers

disobeyed order to charge plaintiff by summons rather than arrest warrant and

deliberately arrested plaintiff at public event, holding that officers’ behavior was within

scope of employment although it was callous and not to be condoned); Hendricks v. New

Albany Police Dep’t, 749 F. Supp. 2d 863, 869 (S.D. Ind. 2010). The allegations generally

13
sound in negligence rather than any of the aggravating factors that could destroy the

officers’ immunity. Count 3 therefore cannot survive a claim of immunity, and is

dismissed.

3. Count 4: Wrongful Death

Amos’s fourth count alleges that Jones’s death was wrongfully wrought by the

Town of Highland, the (already dismissed) police department, Police Chief Hojnicki,

and Officers Anderson and Orth. The defendants move for the dismissal of this count

against Hojnicki, Anderson and Orth, arguing that they are immune under the Indiana

Tort Claims Act. (DE 11 at 6.) The same Tort Claims Act immunity law applies as to

Amos’s claim of intentional infliction of emotional distress. See supra. Government

employees can’t be sued for acts done within the scope of their employment. The fact

that acts were negligent, or even criminal, doesn’t automatically remove those acts from

the scope of employment. Based on Amos’s allegations, the officers’ actions that

resulted in Jones’s death were done in the scope of the officers’ employment, as I’ve

explained with respect to the intentional infliction of emotional distress claim. The

officers went to the home because they were called there to do a wellness check on

Jones because of Jones’s violent and threatening behavior towards Amos that day.

Whether the officers exercised proper force is a question for other claims through

discovery and trial, but as a matter of law I find that the officers’ actions arose directly

out of their performance of their employment duties. Bushong v. Williamson, 790 N.E.2d

467, 473, 2003 Ind. LEXIS 571, 11 (Ind. 2003) (“Generally, whether the tortious act of an

14
employee is within the scope of employment is a question of fact. However, under

certain circumstances the question may be determined as a matter of law.”). This claim

is therefore dismissed.

* * *

For the sake of clarity, after the partial dismissal as ordered above, the following

claims remain:

• 42 U.S.C. § 1983 claim for unconstitutional policy or custom liability against the

Town of Highland; 

• 42 U.S.C. § 1983 claim of deliberate indifference against Chief Hojnicki in his

individual capacity;

• 42 U.S.C. § 1983 claim for excessive force against Corporal Anderson and Officer

Orth in their individual capacities; and

• a state law claim for wrongful death against the Town of Highland.

CONCLUSION

THEREFORE Defendants’ motion for partial dismissal is GRANTED IN PART

AND DENIED IN PART. Claims and defendants are dismissed, and the motion is

GRANTED IN PART, as follows:

1. The Highland Police Department is dismissed from the suit;

2. Count 1 is dismissed against Vasser, Hojnicki, Anderson and Orth in their

official capacities;

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3. Count 3, for intentional infliction of emotional distress against Officers

Anderson and Orth, is dismissed based on Tort Claims Act immunity; and

4. Count 4, for wrongful death, is dismissed with respect to Hojnicki, Anderson

and Orth based on Tort Claims Act immunity.

All other requests in Defendants’ motion for partial dismissal are DENIED. (DE

10.)

SO ORDERED.

ENTERED: September 3, 2014

/s/ Philip P. Simon

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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