UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JAIME SMITH, as next friend of J.S. )

and K.S., minor children and next kin )

of GREGORY THOMAS SMITH, )

)

Plaintiff, )

)

v. ) Cause No. 2:15-CV-123

)

LAKE COUNTY, et al., )

)

Defendants. )

)

 )

)

LAKE COUNTY, INDIANA, )

)

Counter Claimant, )

)

v. )

)

JAIME SMITH, )

)

Counter Defendant. )

OPINION AND ORDER

This matter is before the Court for resolution of three pending motions to dismiss.

Defendant Lake County Sheriff John Buncich filed a motion to dismiss (DE 37), to which

Plaintiff Jaime Smith filed a response in opposition (DE 45) and Buncich filed a reply (DE 46).

Smith later filed her own motion to dismiss Defendant Lake County’s counter-complaint (DE

60), to which Defendant Lake County filed a response in opposition (DE 71) and Smith filed a

reply (DE 74). Finally, Defendants Town of Merrillville and Merrillville police officer Aaron

Ridgway also filed a motion to dismiss (DE 87), to which Smith filed a response indicating that

she had no objection to the motion (DE 88). For the reasons set forth in this Opinion and Order,
the motion to dismiss filed by Buncich is GRANTED in part, DENIED in part, and MOOT in

part. The motion is MOOT as to any and all claims asserted against Defendant Buncich in his

individual capacity; the motion is DENIED as to Plaintiff’s claims against Buncich in his official

capacity (i.e., the Plaintiff’s claim under Monell v. Dep’t of Soc. Servs. of City of New York); the

motion is DENIED as to the Plaintiff’s claim against Buncich based on a state law theory of

respondeat superior; and the motion is GRANTED as to the Plaintiff’s claim for

indemnification. The motion to dismiss filed by Town of Merrillville and Officer Ridgway is

GRANTED and those two Defendants are dismissed as parties to this case. The Plaintiff’s

motion to dismiss Defendant Lake County’s counterclaim is DENIED.

BACKGROUND

The underlying facts of this case are taken from the Plaintiff’s Second Amended

Complaint filed on April 19, 2016 (DE 33). Plaintiff Jaime Smith brought this lawsuit in her

capacity as Administratrix of the Estate of Gregory Smith, and as the mother of Mr. Smith’s

minor children, J.S. and K.S. Smith asserts various causes of action under 42 U.S.C. § 1983 and

state law claims. She names the following entities and individuals as defendants: Lake County,

Indiana; Lake County Sheriff John Buncich; Lake County Officers Fotia and Zimora; Lake

County Corrections Officers Peters, Savadra, Machinkowski, Buck, Hagen, Fotinos, Omamull,

and Laurent; the Town of Merrillville, Indiana; and Merrillville Police Officer Aaron Ridgway.

1

 The first names of the individual Defendant officers are nowhere to be found in the 1

record (at least so far as the Court could discover from examining the filings, which included

perusing each Defendant’s notice of waiver of service (DE 50-59) and their answers to the

Amended Complaint (DE 61-70)). The individual Defendants are always referred to as “Officer

Fotia,” “Officer Zimora,” and so forth. The Court discovered that Defendant Officer Ridgway’s

first name is Aaron only because he submitted an affidavit in support of his motion to dismiss

that includes that information. Town of Merrillville and Ridgway motion to dismiss (DE 87),

2
Smith states and alleges that on March 25, 2015, Gregory Smith was arrested in Hobart,

Indiana, by officers of the Hobart Police Department for driving 35 miles per hour in a 30 miles

per hour zone. Mr. Smith was transferred to the custody of the Crown Point Police Department

and taken to the Lake County Jail. While being held at Lake County Jail, Mr. Smith allegedly

became emotionally distraught and began suffering from a mental episode. At one point Mr.

Smith banged his hands and head on the glass window in his holding cell. Plaintiff alleges that

the individual Defendants–Officers Machinkowski, Peters, Savadra, and Buck–all witnessed Mr.

Smith suffering a mental episode. Plaintiff alleges that these four officers removed Mr. Smith

from his holding cell and physically assaulted him, beating him with their fists and using a taser

on him. Plaintiff alleges that the four officers were joined by jail corrections officers Hagen and

Laurent, who also allegedly assaulted Mr. Smith. Tragically, Mr. Smith went into cardiac arrest

and died in the jail. Plaintiff alleges that Mr. Smith’s death was the result of excessive force used

against him by the individual Defendants, and also alleges that the Lake County Sheriff’s

Department is liable for having a custom or practice of failing to provide adequately for the

mental health needs of inmates and detainees. Based on these facts and allegations, Plaintiff

brought the following claims:

1) Excessive force claims against all the individual officers named above (Amended Complaint,

p. 14 (Count I));

2) Failure to intervene claims against all the individual officers named above and Merrillville

Police Officer Ridgway (Id., p. 16 (Count II));

3) Claims against the Lake County Sheriff’s Department and Lake County pursuant to Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), for having an institutional custom,

Exh. A, Affidavit of Aaron Ridgway. This is merely an observation and is not pertinent to any of

the three pending motions. 

3
pattern or procedure that resulted in the deprivation of the constitutional rights of inmates and

detainees in need of mental health treatment (Id., p. 18 (Count III));

4) A “supplemental respondeat superior claim” alleging that Sheriff Buncich “as principal, is

liable for the actions of [his] agents under the doctrine of respondeat superior for all state law

claims herein.” (Id., p. 22 (Count IV));

5) An Indiana state law claim for “wrongful death battery” against all the individual Defendant

officers in contradiction of Indiana Code § 34-23-1-1 (Id., p. 23 (Count VII )); and 2

6) Indiana state law claims for indemnification against the Lake County Sheriff (Id., p. 22 (Count

V)), Lake County (Id., p. 23 (Count VI)), and Town of Merrillville (Id., p. 24 (Count VIII)).

STANDARD OF REVIEW

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) allows a defendant to move to

dismiss a complaint that fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P.

12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all

factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v.

County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The 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)(2).

In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege

facts that are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.

544, 555 (2007). Stated differently, the complaint must include “enough facts to state a claim to

relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009)

(internal citation and quotation marks omitted). To be facially plausible, the complaint must

allow “the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

 Count VII of Plaintiff’s Amended Complaint is misnumbered as “Count VIII.” 2

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DISCUSSION

I. Motion to dismiss by Town of Merrillville and Officer Ridgway.

Defendants Town of Merrillville and Merrillville police officer Aaron Ridgway argued in

their motion to dismiss that the Plaintiff’s claims against them must be dismissed since Ridgway

was not present on the date of Mr. Smith’s arrest or death (having been mistakenly identified as

appearing in a photograph taken at the jail on the day of the tragic incident). Plaintiff’s

concomitant claim against the Town itself thereby falls by the wayside since it was a claim for

indemnification from the Town for the alleged acts of its employee, Ridgway. Motion to Dismiss

(DE 87), pp. 1-3. Smith expressly concedes the motion, stating in her response that she “has no

objection to Defendants Ridgway’s and Town of Merrillville’s Motion to Dismiss.” Plaintiff’s

Response to Ridgway Motion, p. 1. Accordingly, the motion is granted and any and all claims

asserted against the Town of Merrillville or Merrillville police officer Aaron Ridgway are

dismissed.

II. Motion to dismiss by Sheriff Buncich.

The Court’s ruling on Buncich’s motion involves only the claims asserted against him

and does not affect any of the Plaintiff’s claims against any other Defendants. Buncich asks the

Court to “dismiss all claims that have been ambiguously alleged against . . . Buncich in his

individual capacity[,] . . . dismiss all Count III Monell claims alleged against . . . Buncich” and to

dismiss “Plaintiff’s state law respondeat superior claim alleged in Count IV[.]” Motion to

Dismiss, p. 1. Also, while he does not address it in his motion, Buncich makes clear in his brief

that he is seeking dismissal of Smith’s indemnification claim also, contending that it “is not

ripe[]” and therefore “it must fail for lack of subject matter jurisdiction.” Defendant’s

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Memorandum in Support (DE 38), p. 2. In other words, Buncich seeks dismissal of all the claims

asserted against hm, whether in his individual or official capacity. 

A. Individual capacity claims.

Buncich argued in his memorandum that all individual claims asserted against him, if

there were any, should be dismissed because he had no personal involvement with or knowledge

of the incident involving Mr. Smith, precluding any individual capacity claim. Memorandum in

Support, pp. 1-2. Plaintiff concedes this point and states in her response that she “has not alleged

an individual capacity claim against the Sheriff.” Plaintiff’s Response, p. 8. She further clarifies

that she “brings an official capacity claim against the Sheriff and individual capacity claims

against the individual officers.” Id., p. 9. Accordingly, the motion to dismiss as to the issue of

any individual claims against Buncich is MOOT. 

B. Monell claim.

Buncich argues that Smith’s Monell claim must be dismissed because it “is based on

generalized allegations of unrelated past misconduct by various members and divisions of the

Lake County Sheriff’s Department. Allegations that past generalized bad behavior led to future

generalized bad behavior fail the rigorous standards of culpability and causation required for

municipal liability. . . . Plaintiff’s Count III Monell claim is based upon scattered allegations,

spanning the past ten (10) years . . . .” Defendant’s Memorandum, p. 2 (citations omitted).

Buncich insists that Smith’s “Amended Complaint is devoid of any specific policy or custom that

led to [the alleged] underlying constitutional violation[]” and further insists that all Plaintiff

bases her Monell claim on is a vague assertion that there existed in the Lake County Sheriff’s

Department a pattern or practice of “lawlessness” that resulted in the violation of Mr. Smith’s

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constitutional rights. Id.

Claims against governmental entities (including a county sheriff) based on an allegedly

unconstitutional policy, practice, or custom are permitted under Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658 (1978). Here, Smith alleges that the Lake County Sheriff’s

Department has a policy, practice, or custom of egregious treatment of detainees and inmates in

general, and individuals with mental health disorders in particular. In order to prevail on such a

claim, a plaintiff must plead sufficient facts to show “a pattern or practice of constitutional

violations.” Wade v. Lain, 2016 WL 2910026, at *1 (N.D. Ind. May 19, 2016) (citing Monell,

436 U.S. at 690-91). A recent opinion from the Seventh Circuit summarizes a plaintiff’s burden

in such cases (and thereby informs this Court’s review). The court explained as follows:

To prove an official policy, custom, or practice within the meaning of Monell, [a

plaintiff] must show more than the deficiencies specific to his own experience[.] .

. . When seeking to rely upon indirect proof, he must come forward with evidence

that could allow a reasonable trier of fact to find, . . . “systemic and gross

deficiencies in staffing, facilities, equipment, or procedures in a detention center’s

medical care system.” If [a plaintiff] meets this mark, he must then show that a

policymaker or official knew about these deficiencies and failed to correct them. .

. . He need not present evidence that these systemic failings affected other specific

inmates. See Davis [v. Carter], 452 F.3d [686] at 695 [7th Cir. 2006)] (“To

establish a widespread custom or policy, the plaintiff here was not required to

show that Cook County’s alleged repeated pattern of delay . . . actually caused

pain and suffering to other inmates in need of medical intervention. . . .”).

Daniel v. Cook County, 833 F.3d 728, 734-35 (7th Cir. 2016) (some internal citations omitted).

In the present case, Smith’s Monell claim is supported in part, she argues, by a 2009

report prepared by the U.S. Department of Justice that was issued following an investigation by

the Department of the conditions in the Lake County Jail. Smith’s Amended Complaint

summarizes relevant portions of the DOJ report as follows:

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122. Subsequent to an investigation into conditions at the Lake County Jail, on

December 7, 2009, the United States Department of Justice issued a “Findings

Letter” pursuant to 42 U.S.C. § 1997 that concluded that the LCJ engages in a

pattern or practice of conduct that subjects inmates to systemic violations of

federal constitutional rights, specifically in regard to: (1) suicide prevention, (2)

mental health care, (3) the medical care, and (4) sanitary and safe living

conditions.

123. The investigation revealed that the LCJ’s medical care practices fall below

the minimum constitutionally required standards of care. Particularly, it found

constitutionally inadequate LCJ’s: (1) medical staffing; (2) access to medical care;

(3) acute and chronic medical care; (4) comprehensive health assessments; (5)

medication administration; (6) medical records; and (7) quality improvement.

124. Specifically in regards to Mental Health Care, the Department of Justice

called for the LCJ to: “Change the current “crisis response” mental health care

model to a system that proactively identifies inmates who are in need of treatment

or at risk of harm” and to “Ensure collaboration with medical and custody staff in

those areas that overlap, such as intake assessments, confidentiality for interviews,

suicide prevention and management, and treatment planning.”

125. Lake County Sheriffs, including . . . Buncich, . . . acted with deliberate

indifference to the rights of inmates in the jail by allowing lawlessness to occur.

Amended Complaint, pp. 19-20, ¶¶ 122-125. Oddly, Smith did not attach a copy of the DOJ

report to her Amended Complaint nor did she file it as an exhibit to any of her briefs.

Nonetheless, she expressly refers to it (and even quotes from it) in her Amended Complaint and

it is relevant to her Monell claim, so the Court can consider it. Also, the Court need not convert

the motion to dismiss to a motion for summary judgment in order to consider the Report as part

of the Amended Complaint. See, e.g., Am. Commercial Lines LLC v. Lubrizol Corp., 2014 WL

6673606, at *1 (S.D. Ind. Nov. 24, 2014) (“[I]t is well-established under Seventh Circuit law

that, for purposes of a Rule 12(b)(6) motion, the pleadings ‘consist generally of the complaint,

any exhibits attached thereto, and supporting briefs.’ . . . The court is allowed to consider such

materials on a motion to dismiss without converting it to a motion for summary judgment.”)

8
(internal citations omitted). In any event, the report is admissible for other reasons, including

because Buncich does not move to strike the references to the report or otherwise challenge

Smith’s recitation of the findings and conclusions contained in the report (instead, he simply

argues that it is not relevant), and because the report is a matter of public record and the Court

can take judicial notice of it for that reason. Also, the DOJ report is presumptively admissible

under Fed.R.Evid. 803(8)(A)(iii) as a “hearsay exception in civil cases for ‘factual findings from

a legally authorized investigation.’” Daniel, 833 F.3d at 731 (quoting Rule 803). The Defendants 3

bear the burden of rebutting the presumption of admissibility as well as the factual findings

contained in the report. “The defendants are entitled to a full opportunity to rebut it. . . . There

may be individual circumstances that might justify exclusion of the Report, perhaps because it is

no longer sufficiently timely or does not fit sufficiently well the issues in a particular case. But

the general presumption of admissibility in the text of Rule 803(8) has considerable force.’” Id. at

 The DOJ Report is a matter of public record. See “Justice Department Reaches 3

Agreement to Correct Conditions at Lake County Jail,” U.S. Department of Justice, Office of

Public Affairs, Dec. 3, 2010 (available at

https://www.justice.gov/opa/pr/justice-department-reaches-agreement-correct-conditions-lake-co

unty-jail) (visited February 7, 2017). Even a copy of a settlement agreement, which Lake County

and the Justice Department entered into on August 18, 2010, is published on the Justice

Department website. See Lake County Jail Settlement Agreement (available at

https://www.justice.gov/sites/default/files/crt/legacy/2011/01/05/lake_co_jail_settle_12-03-10.pd

f) (visited February 7, 2017). A court can take judicial notice of relevant evidence if that

evidence is a matter of public record. See Archer v. Chisholm, 191 F.Supp.3d 932, 959 n. 10

(E.D. Wis. 2016) (a court “may take judicial notice of [documents that are] publicly available

court records.”); see also, Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013) (a

court may take judicial notice of court records); Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 

2012) (“Taking judicial notice of matters of public record need not convert a motion to dismiss

into a motion for summary judgment.”) (citations omitted); Martinez v. Cook County, 2012 WL

6186601, at *4 n. 7 (N.D.Ill. Dec.12, 2012) (collecting cases that have admitted similar DOJ

reports at trial under Federal Rule of Evidence 803(8)).

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742.

In Daniel the plaintiff, in support of his Monell claim, submitted a Justice Department

report that found considerable deficiencies in medical care in the Cook County (Illinois) Jail. The

district court declined to consider the report, but the Seventh Circuit reversed and remanded the

case. In fact, many courts have addressed this precise issue and most have held that similar

Justice Department reports are admissible to assess a plaintiff’s Monell claim. See id., at 741

(listing cases addressing admissibility of Justice Department investigative reports). Accordingly,

for purposes of the present motion to dismiss, the DOJ Report is admissible, relevant, and will be

considered by the Court when assessing the sufficiency (or insufficiency, as Buncich contends) of

Smith’s allegations.

Turning back to Smith’s Monell claim, it is well established that a suit against a sheriff in

his official capacity is equivalent to a suit against the governmental entity that employs the

sheriff, meaning the county sheriff’s department. Kentucky v. Graham, 473 U.S. 159, 165-66

(1985); see also, Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (official capacity claims

against municipal officials are claims against the municipal body itself). In order to prevail on

such a claim, a plaintiff must plead sufficient facts to show a pattern or practice of constitutional

violations. Wade v. Lain, 2016 WL 2910026, at *1 (N.D. Ind. May 19, 2016) (citing Monell, 436

U.S. at 690-91). In Daniel, the Seventh Circuit summarized a plaintiff’s burden in such cases and

that summary informs and refines this court’s standard of review. The appellate court explained

as follows:

To prove an official policy, custom, or practice within the meaning of Monell, [a

plaintiff] must show more than the deficiencies specific to his own experience[.] .

. . When seeking to rely upon indirect proof, he must come forward with evidence

10
that could allow a reasonable trier of fact to find, . . . “systemic and gross

deficiencies in staffing, facilities, equipment, or procedures in a detention center’s

medical care system.” If [a plaintiff] meets this mark, he must then show that a

policymaker or official knew about these deficiencies and failed to correct them. .

. . He need not present evidence that these systemic failings affected other specific

inmates. See Davis [v. Carter], 452 F.3d [686] at 695 [7th Cir. 2006)] (“To

establish a widespread custom or policy, the plaintiff here was not required to

show that Cook County’s alleged repeated pattern of delay . . . actually caused

pain and suffering to other inmates in need of medical intervention. . . .”).

Daniel, 833 F.3d at 734-35 (some internal citations omitted). Of course, this case is before the

Court now on a motion to dismiss, so Smith need not prove that there were “systemic and gross

deficiencies” in medical care at the Lake County Jail, but she must present “enough facts to state

a claim to relief that is plausible on its face.” 

Buncich argues that Smith’s Amended Complaint fails to meet that standard. He contends

that “[P]laintiff’s Count III Monell claim . . . must fail because it has not adequately alleged that a

constitutional right was violated as a result of a specific ‘custom, policy, or practice’ of the

Sheriff’s Department. Plaintiff has instead tenuously filled her Amended Complaint with a ten

(10) year history of miscellaneous and unrelated allegations of past misconduct brought against

various officers in various divisions of the Lake County Sheriff’s Department, and without

sufficient explanation or specificity, she has rested her Monell claim entirely on that history. . . .

Stating a valid Monell claim requires more than merely listing previous instances of alleged

misconduct and from that alleging the existence of an ‘abstract [policy] of violating citizens’

constitutional rights.’” Defendant’s Memorandum, p. 7.

Buncich’s argument that Smith’s allegations and evidence are insufficient to support her

Monell claim and, consequently, that her Amended Complaint is too vague to pass muster under

the Rule 12(b)(6) standard, is unconvincing. Smith’s references to the findings and conclusions

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contained in the DOJ report are much more specific and detailed than Buncich admits. Smith

summarizes findings in the report and explains their purported relevance to her case as follows:

While Mr. Smith’s story may be shocking, Mr. Smith’s experience was far from

unusual. Rather, what happened to him is indicative of Lake County Jail’s long

and sordid record of failing to provide medical care for inmates suffering from

mental health diseases. Due to this and other disturbing allegations, the [DOJ]

inestigated Lake County Jail in 2009. . . . The [DOJ’s] investigation concluded

Lake County Jail “engages in a pattern or practice of conduct that subjects the

inmates to systemic violations of federal constitutional rights, specifically in

regard to: (1) suicide prevention, (2) mental health care, (3) . . . medical care, and

(4) sanitary and safe living conditions.” The report called for Lake County Jail to

“change the current crisis response mental health care model to ensure

collaboration with medical and custody staff in those areas that overlap, such as

intake assessments, confidentiality for interviews, suicide prevention and

management, and treatment planning.” 

Plaintiff’s Response, pp. 2-3 (quoting DOJ Report). 

Smith also argues in her brief that “troubling omissions from the autopsy performed on

Mr. Smith suggest that Lake County Coroner, Merilee D. Frey has been complicit in concealing

misconduct by Lake County Sheriff’s employees. . . . Suspiciously and profoundly absent in the

autopsy performed by Lake County Pathologist, Kim M. Young, was any review of the video

evidence of the assault on Mr. Smith and/or analysis of the use of force by Defendant Officers

immediately preceding his death.” Id., p. 3. 

Finally, Smith contends that “[p]rior acts of violence and examples of lawlessness at Lake

County Jail abound. For several months in 2006, Lake County Jail Officers prohibited inmates

from leaving overcrowded cells for 24 hours at a time . . . . In 2009, Lake County Jail officers

caused the death of a mentally ill inmate due to dehydration. . . . In 2011, Lake County Sheriff’s

officers ‘put a hit’ on an inmate in retaliation for reporting sexual abuse by officers. . . .[and] [i]n

2013, a Lake County Sheriff’s Deputy committed sexual assault while on duty.” Id. (citing DOJ

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Report findings). Even more specifically, Smith alleges that the Lake County Jail had a policy or

custom of deliberate indifference to the medical needs of inmates and detainees with mental

health issues. The Plaintiff states Buncich, as Sheriff, “by and through his officers, failed to

provide adequate “psychotropic medication management” or adequate “treatment and overall

attention from mental health staff,” that they “fail[ed] to identify many inmates that needed

mental health care,” and that they “fail[ed] to develop comprehensive treatment plans for inmates

suffering from mental illness.” Id., pp. 5-6. (These assertions are paraphrases of findings and

conclusions contained in the DOJ report.)

These examples of egregious behavior, argues Smith, support her contention that a

custom or policy of denying adequate medical care to mentally ill inmates and of general

“lawlessness” in the Lake County Sheriff’s Department resulted in Mr. Smith’s death. Many of

her factual statements come directly from the DOJ report. 

Recall that in order to survive a motion to dismiss under Rule 12(b)(6), a complaint must

be “facially plausible,” which means it must allow “the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556). Smith’s Amended Complaint meets this standard and is certainly specific and

detailed enough to put Buncich on notice of her intent to pursue a Monell claim and the

underlying facts and assertions on which that claim is based. She presents admissible evidence of

a pattern and custom of what she characterizes as general and egregious “lawlessness” in the

operation of the Lake County Jail. Smith alleges that this pattern of lawlessness reared its ugly

head on March 25, 2015, when Gregory Smith, who had been arrested for speeding, died just

hours after being detained in the Lake County Jail and after he was allegedly assaulted by

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Sheriff’s Department officers–allegations that sit undisputed at present. Nonetheless, Buncich

argues that Smith’s factual assertions and evidence are inadequate to state a claim, contending

that they are too vague and the evidence she uses to support her claim–the DOJ report–is

rendered meaningless because it includes evidence of problems at the jail that are too remote in

time to be relevant or are not relevant under the facts of this case. Maybe he is right, and maybe

when the record in this case is more developed Buncich will be able to establish that the

Plaintiff’s claim against him is not sustainable as a matter of law (as in a subsequent motion for

summary judgment or at trial). But we are not there yet, and the Plaintiff’s allegations, her

admissible evidence, and the (thus far) undisputed facts of this case are sufficient (arguably

overwhelmingly so) to defeat a Rule 12(b) motion to dismiss. For all of these reasons, Defendant

Buncich’s motion to dismiss the Plaintiff’s Monell claim, i.e., her official capacity claim, is

denied. 

C. Respondeat Superior claim.

The Plaintiff has asserted a claim against Buncich, again in his official capacity as

Sheriff, claiming he is liable for damages sustained as the result of his employees’ (that is, all of

the individual Defendants) alleged battery of Gregory Smith. Amended Complaint, p. 22 (Count

IV). Smith claims that Buncich, “as principal, is liable for the actions of [his] agents under the

doctrine of respondeat superior[.]” Id. Buncich argues this claim should be dismissed because

Smith is not permitted, under Indiana law, to recover on both a vicarious liability claim against

an employer or principal (such as a sheriff’s department) and individual liability claims against

that principal’s employees or agents. Defendant’s Memorandum, p. 9. Buncich contends that if

an agent or employee acting outside the scope of his employment commits a tort, no claim would

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lie against the principal. Id. If, on the other hand, the alleged tort is committed while the

employee is acting within the scope of his employment, then vicarious liability would attach and

the claims against the individuals themselves would fall by the wayside. Id. Buncich cites no

authority to support his position, but argues that it is supported by the Indiana Tort Claim Act

itself. That statute, argues Buncich, “allows recovery only from either the government entity if

the act or omission was within the scope of employment, or against the employee individually, if

the act or omission was outside the scope of employment.” Id., p. 10 (citing I.C. § 34-13-3-5).

Indeed, the statute states in relevant part 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.” Indiana Code § 34-13-3-5(b). So, Buncich argues that the Plaintiff’s respondeat

superior claim should be dismissed for two reasons: first, because she has failed to give “fair

notice of whether she seeks individual liability or entity liability for her state law claims pursuant

to the Indiana Torts Claim Act[]” and second because such a claim is not “plausible under the

[ITCA].” Id.

Smith’s retort to this argument is a bit curious. She claims that “[a]bsent support in

federal jurisprudence, Defendants argue that an Indiana Statute (Ind. Code § 34-13-3-5(b))

governs the pleading requirements for a federal action.” Plaintiff’s Response, p. 8. She then

asserts that Buncich’s “argument misses the mark as the Federal Rules of Civil Procedure apply”

to pleadings in federal court and “[a]s Defendants have [sic] applied a state statute to control a

federal pleading, Defendants’ motion on this score should be disregarded.” Id., pp. 8-9. She piles

on by arguing that “[a]s Defendants have [sic] failed to provide any legal support for the

proposition that Ind. Code § 34-13-3-5 is to be followed in construing a federal claim, Plaintiff

15
prays that this Court deny Defendants’ [sic] motion in this regard.” Id., p. 9.

In his reply brief, Buncich concedes that Smith has since clarified one thing–she is

pursuing only an official capacity claim against Buncich (and individual capacity claims against

the other Defendant officers). Still, he does not back down from his argument that the respondeat

superior claim against him must be dismissed since Smith cannot seek recovery from both the

Sheriff’s Department and the individual tortfeasing officers. Defendant’s Reply, p. 4. Buncich

contends that Smith “misinterprets her respondeat superior claim against . . . Buncich and her

wrongful death battery claim against the defendant officers as ‘federal claims.’ . . . [D]espite

Plaintiff’s argument otherwise, federal law provides the procedural law for the entire case and the

substantive law for the Section 1983 claim, while state law provides the substantive law for all

state law claims. . . . Therefore, Plaintiff must comply with Indiana Code § 34-13-3-5(b). . . . 

Therefore, Plaintiff’s Count IV respondeat superior claim against . . . Buncich should be

dismissed because, as pled, Plaintiff does not give fair notice of the claims that are asserted, nor

is it plausible under Indiana law.” Id., pp. 4-5.

Both parties’ arguments miss the point. While Buncich is correct that Smith cannot

recover under both theories, that does not render her respondeat superior claim subject to

dismissal at this point. Smith has pled alternative theories of recovery, or alternative claims, in

her Amended Complaint, and “pleading in the alternative is permissible.” Reiner v. Dandurand,

33 F.Supp.3d 1018, 1032 (N.D. Ind. 2014). In fact, Federal Rule 8 expressly provides that “[a] 

party may set out 2 or more statements of a claim or defense alternatively or hypothetically,

either in a single count or defense or in separate ones[]” and that “[a] party may state as many

separate claims or defenses as it has, regardless of consistency.” Fed.R.Civ.P. 8(d)(2)-(3). 

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This Court has addressed this issue before and explained as follows:

The Defendants are correct to the extent that they assert that under Indiana law the

Plaintiffs cannot have it both ways; if [the police officer] was acting within the

scope of his employment the Plaintiffs cannot prevail on their state law claims

against him individually since he would be entitled to immunity and, if [the

employee] was acting outside the scope of his employment, the City cannot be

held liable for his actions. Indeed, a party cannot recover separately on

inconsistent theories when one theory precludes the other. See Brookhaven

Landscape & Grading Co. v. J.F. Barton Contracting Co., 676 F.2d 516, 523

(11th Cir. 1982). Yet, while Plaintiffs cannot, at the end of the day, recover on

inconsistent claims, Plaintiffs may plead inconsistent claims, and such claims can

be submitted to the jury to be sorted out. Whitt v. E.I. DuPont de Nemours & Co.,

461 F.2d 1152, 1154 (6th Cir. 1972) (stating that inconsistent theories of recovery

may be submitted to the jury); 5 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1283 (3d ed. 2004) (“[A] pleader [m]ay set forth

inconsistent legal theories in his or her pleading and will not be forced to select a

single theory on which to seek recovery against the defendant.”). Accordingly,

although Plaintiffs have asserted inconsistent claims in that they cannot

simultaneously recover on their tort claims against both the City and [the

employee], this does not require the Court to find, as a matter of law, that one or

the other of the claims is foreclosed at this stage of the proceedings.

Miller v. City of Plymouth, 2010 WL 1474205, at *7-8 (N.D. Ind. Apr. 9, 2010) (J. Van

Bokkelen); see also, Richmond v. Swinford, 2012 WL 5903808, at *4 (N.D. Ind. Nov. 26, 2012)

(refusing to dismiss plaintiff’s respondeat superior claim against town while she also pursued

battery claims against individual officers); Townsend v. Wilson, 2015 WL 4742115, at *10 (N.D.

Ind. Aug. 10, 2015), aff’d, 652 F.App’x 449 (7th Cir. 2016) (“While [a plaintiff] arguably can

plead inconsistent claims, he ‘cannot, at the end of the day, recover on inconsistent claims.’”)

(quoting Miller, 2010 WL 1474205, at *8). For these reasons, Buncich’s motion to dismiss is

denied as to Smith’s claim against him under the theory of respondeat superior.

D. Indemnification claim.

In Count V of her complaint, Smith asserts a claim for indemnification against Buncich.

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Amended Complaint, pp. 22-23. Such claims are available under Indiana statute and provide that

public entities may be liable to pay judgments in cases involving civil rights violations for which

present or former public employees are found liable. See I.C. § 34-13-4-1. Buncich argues that

Smith’s indemnification claim must be dismissed because it is premature. He contends that the

Court should dismiss this claim for lack of subject jurisdiction since “‘a claim for indemnity is

not ripe until the underlying liability has been established.’” Defendant’s Reply, p. 11 (quoting

Sowell v. Dominguez, 2011 WL 294758 (N.D.Ind. Jan. 26, 2011)). As Judge Moody explained in

Sowell:

No one has been found liable yet in this case and no judgment has been entered.

This court only has subject matter jurisdiction over a case in which the

controversy is ripe. A claim is not ripe if it ‘rests upon contingent future events

that may not occur as anticipated, or indeed may not occur at all.’ Texas v. United

States, 523 U.S. 296, 300, . . . (1998) (internal quotations omitted). Accordingly,

any claim for indemnity resulting from this suit is not ripe until the underlying

liability has been established. See Doe v. City of Chi., 360 F.3d 667, 672 (7th Cir.

2004) (‘We have warned repeatedly against trying to resolve indemnity before

liability.’); Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 583 (7th Cir.

2003) (‘We regularly say that decisions about indemnity should be postponed

until the underlying liability has been established.’).

Sowell, 2011 WL 294758, at *14. Buncich argues that “[a]t this point, it is not clear whether any

individual officer defendants named in this litigation will be held liable under any claim[] alleged

by Plaintiff. Therefore, Plaintiff’s state law indemnity claim . . . is premature . . . [and] must be

dismissed for lack of subject matter jurisdiction.” Defendant’s Memorandum, p. 11.

Smith’s response on this issue is again a curious one. She argues that her indemnification

claim is proper at the initial complaint stage and cites several cases she claims support her

position. Plaintiff’s Response, p. 11. Buncich, however, argues in his reply brief that Smith’s

argument “erroneously cites case law concerning the analysis of the Illinois indemnification

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statute, . . . which is inapplicable to the instant case.” Defendant’s Reply, p. 5. Buncich is

correct–none of the (four) cases cited by Smith (see Plaintiff’s Response, p. 11) are applicable.

The Sowell case, on the other hand, is. And for the same reasons, Smith’s indemnification claim

must be dismissed. 

Dismissal of this claim, however, must be without prejudice, since the court is not

reaching the merits of the claim. See Henderson v. Adams, —F.Supp.3d—, 2016 WL 3548645, at

*8 (S.D. Ind. June 30, 2016) (“‘A dismissal for lack of federal jurisdiction is without

prejudice.’”) (quoting Bovee v. Broom, 732 F.3d 743 (7th Cir. 2013)); see also El v. AmeriCredit

Fin. Servs., Inc., 710 F.3d 748, 751 (7th Cir. 2013) (“Dismissals because of absence of federal

jurisdiction ordinarily are without prejudice . . . ‘because . . . once a court determines it lacks

jurisdiction over a claim, it perforce lacks jurisdiction to make any determination of the merits of

the underlying claim.’”) (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1217 (10th

Cir. 2006)). For these reasons, Smith’s claim for indemnification against Buncich is dismissed

without prejudice. 

III. Plaintiff’s motion to dismiss Defendant Lake County’s counterclaim.

Defendant Lake County filed its answer to Smith’s Amended Complaint on April 20,

2016, and included a counterclaim for abuse of process. Lake County Answer and Counter-Claim

(DE 34), pp. 38-40. Specifically, the County alleged that Smith “has committed the tort of abuse

of process under Indiana law as she has misused or misapplied civil process, for an end other

than that which it was designed to accomplish, by filing and continuing to prosecute groundless

and frivolous claims against an improper party, namely Lake County, Indiana.” Id., p. 40. Lake

County argues that it is a municipal entity separate and apart from the Lake County Sheriff’s

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Department and that “official capacity and Monell claims against Correctional Officers are

deemed, as a matter of law, claims against the Lake County Sheriff’s Department and not Lake

County . . . .” Lake County Response to Plaintiff’s Motion to Dismiss Counterclaim, p. 7

(citations omitted). Even worse, claims Lake County, Smith knew this all along but still pressed

claims against Lake County that are “‘improper, redundant, without merit and will require[] Lake

County to appear and defend against frivolous allegations for which it cannot be held liable.’”

Id., p. 6 (quoting Answer and Counterclaim). This conduct, according to Lake County, is

“‘malicious and made in bad faith.’” Id. By way of its counterclaim, Lake County seeks to

recover compensatory damages, punitive damages, costs, and attorneys’ fees from Smith for what

it characterizes as her “improper” and “frivolous” pursuit of claims against the County, an entity

she knew all along she could not sue under the facts of this case.

Smith’s motion to dismiss the counterclaim, which she brings pursuant to Rule 12(b)(6),

is based on her contention that Lake County “has failed to demonstrate the[] elements” of an

abuse of process claim. Plaintiff’s Motion to Dismiss Counterclaim (DE 60), p. 5. Smith

maintains that she has done nothing wrong, that her use of the legal process “was not

improper[,]” and her actions in asserting claims against the County “were procedurally and

substanti[ve]ly proper.” Id.

As one Indiana court explained in E. Point Bus. Park, LLC v. Private Real Estate

Holdings, LLC: “[a]n action for abuse of process has two elements: (1) ulterior purpose or

motives, and (2) a willful act in the use of process not proper in the regular conduct of the

proceeding. . . . However, if a party’s acts are procedurally and substantively proper under the

circumstances, then that party’s intent is irrelevant. . . . A party may not be held liable for abuse

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of process if the legal process has been used to accomplish an outcome which the process was

designed to accomplish. Id., see also Cent. Nat'l Bank of Greencastle v. Shoup, 501 N.E.2d 1090,

1095 (Ind.Ct.App. 1986) (“[a] regular and legitimate use of process, though with an ulterior

motive or bad intention is not a malicious abuse of process”) (quoting Brown v. Robertson, 120

Ind.App. 434, 92 N.E.2d 856, 858 (Ind.Ct.App. 1950)).” E. Point Bus. Park, LLC v. Private Real

Estate Holdings, LLC, 49 N.E.3d 589, 604-05 (Ind.Ct.App. 2015).

Both Smith in her motion to dismiss and Lake County in its opposition brief argue about

the elements of an abuse of process claim. That is, they debate whether Smith’s inclusion of

claims against the County was malicious or frivolous (in that it needlessly forced the County to

appear and answer this lawsuit, and incur costs and attorney’s fees to defend it) or whether she

had a legitimate basis for doing so (in that she believed she had valid Monell or respondeat

superior claims against the County even though it did not employ the alleged tortfeasors). But 4

none of this matters now. The only task facing the Court is determining whether Lake County’s

allegations supporting its counterclaim are sufficient to state a claim under Rule 12(b)(6); the

merits of that claim (or of Smith’s defenses) are not at issue. 

Lake County’s allegations in support of its counterclaim are recited in great detail in its

Answer and Counterclaim. By way of summary, they include the following:

 It did not escape the Court’s notice that Smith fails to elaborate on the legal basis for her

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claims against the County, given that she does not dispute (and therefore tacitly concedes) that

the County has no supervisory or administrative control over the Lake County Sheriff’s

Department, Sheriff Bunich, or the individual officer defendants. Instead, she merely implies that

she has such a basis and, therefore, her actions in pursuing claims against the County are and

were proper. But again, this goes to the merits of Lake County’s counterclaim and Smith’s

defenses, not to the issue of whether the County has pleaded its counterclaim sufficiently, which

it has. 

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1) Smith “asserts official capacity and Monell claims against Lake County that are, as a matter of

law, claims against . . . the Lake County Sheriff and/or the Lake County Sheriff’s Department.”;

2) Smith “knew, or had reason to know, at the time the Amended Complaint was filed that Lake

County had no supervisory control or policymaking authority over the . . . defendant Correctional

Officers, the Lake County Sheriff or the Lake County Sheriff’s Department.”;

3) Smith knew, at the time she filed her Amended Complaint, “that Lake County cannot be held

liable under respondeat superior for claims related to” torts allegedly committed by employees of

the Sheriff’s Department; and

4) Smith “has misused or misapplied civil process . . . by filing and continuing to prosecute

groundless and frivolous claims against an improper party[.]”

Lake County Response, pp. 5-6 (quoting Answer and Counterclaim). 

Taken as true, and drawing all reasonable inferences in favor of Lake County, those

allegations are sufficient to allow the Court “to draw the reasonable inference that the defendant

is liable for the misconduct alleged,” which is all that is necessary to survive a Rule 12(b)(6)

motion to dismiss. For these reasons, the Plaintiff’s motion to dismiss Defendant Lake County’s

counterclaim is denied. 

CONCLUSION

For the reasons set forth in this Opinion and Order, the motion to dismiss filed by

Buncich is GRANTED in part, DENIED in part, and MOOT in part. The motion is MOOT as to

any and all claims asserted against Defendant Buncich in his individual capacity; the motion is

DENIED as to Plaintiff’s claims against Buncich in his official capacity (i.e., the Plaintiff’s claim

under Monell v. Dep’t of Soc. Servs. of City of New York); the motion is DENIED as to the

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Plaintiff’s claim against Buncich based on a state law theory of respondeat superior; and the

motion is GRANTED as to the Plaintiff’s claim for indemnification. The motion to dismiss filed

by Town of Merrillville and Officer Ridgway is GRANTED and those two Defendants are

dismissed as parties to this case. The Plaintiff’s motion to dismiss Defendant Lake County’s

counterclaim is DENIED.

Date: February 13, 2017.

 /s/ William C. Lee 

William C. Lee, Judge

United States District Court

Northern District of Indiana

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