UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CHARLES HARTZ, et al., )

)

Plaintiffs )

)

v. ) CAUSE NO. 2:13-CV-9 RLM

)

DAVID LAIN, individually and in his )

official capacity as Sheriff of Porter )

County Indiana, et al., )

)

Defendants )

OPINION AND ORDER

Charles Hartz was serving a 30-day sentence in the Porter County Jail when

he fell from the top bunk in his cell and was injured. He brought suit on behalf of

himself and his minor daughter under 42 U.S.C. § 1983, the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and state common law, seeking

compensatory and punitive damages “for the physical injury and the pain and

suffering caused by Defendant[s’] denial of necessary prescriptions, medical care

or treatment and violations of the Plaintiff’s constitutional, statutory, and

administrative rights,” and for his daughter’s loss of consortium. Porter County

Sheriff David Lain, Porter County Jail Warden John Widup, Porter County, the

Porter County Board of Commissioners and its members (John Evans, Nancy

Adams, Carol Knoblock, and Laura Blaney), and the “Porter County Jail

Governing Board or Body” filed a partial motion to dismiss under FED. R. CIV. P.

12(b)(6). For the following reasons, the court grants their motion in part and

denies it in part.

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I. BACKGROUND

The complaint alleges that Mr. Hartz was being treated with prescription

medications for a “serious medical condition” when he was taken into custody in

December 2010;1

 that he was denied access to those medications during his

incarceration pursuant to a jail policy or custom that Sheriff Lain “established and

maintained”; that he began to exhibit “strange, erratic and bazaar behavior” in

December but wasn’t transferred to the infirmary or monitored; and that he was

seriously injured on January 6 or 7, 2011, when he fell from his bunk. Mr. Hartz

asserts claims against the defendants collectively under 42 U.S.C. § 1983 and

Indiana common law, alleging that they were deliberately indifferent to his serious

medical condition in violation of his rights under the Fourteenth Amendment

and/or negligent, that he was injured as a result of “Defendants’ systemic and

individual actions and inactions”; and that his daughter suffered the loss of his

services, society, companionship and support. Mr. Hartz also asserts a claim

under the ADA, alleging that his medical condition qualifies as a disability within

the meaning of the Act, and that the defendants generally, and Sheriff Lain

specifically, “intentionally or with deliberate indifference” discriminated against

him based on that disability when they refused to provide prescribed medications

1 The complaint doesn’t identify the nature of Mr. Hartz’s “serious medical condition,” but it does

allege that: “Plaintiff’s physician prescribed psychotropic, other controlled substances or methadone

drugs to suppress the Plaintiff’s desires and mental health issues,” and that “[i]f he adheres to his

prescribed medication regimen, he...is expected to remain stable or improve from his affective disorders

and/or additions (sic).” [Doc. No. 1, ¶¶ 21 and 22].

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and failed to ensure adequate access to medical services, and/or refused to

provide reasonable accommodations for the treatment of Mr. Hartz’s medical

condition.

The defendants moved to dismiss some, but not all, of the claims asserted

against them under FED. R. CIV. P. 12(b)(6), contending that Indiana doesn’t

recognize a cause of action for “loss of parental consortium when the parent is

negligently injured by a third person,” see Dearborn Fabricating and Engineering

Corp., Inc. v. Wickham, 551 N.E.2d 1135, 1139 (Ind. 1990), and that Indiana’s

two-year statute of limitations for personal injury actions, IND. CODE § 34-11-2-4,

bars any claim (federal or state) based on acts or omissions that occurred before

January 7, 2011. The defendants also contend that the complaint doesn’t state

a plausible claim against them under the ADA, against Warden Widup in his

individual capacity under § 1983, or against Porter County, the Porter County

Board of Commissioners, or the “Porter County Jail Governing Board or Body,”

under any of the theories espoused. 

 Mr. Hartz concedes that the loss of consortium claim should be dismissed,

but summarily concludes that his complaint was timely filed and that the

defendants’ motion to dismiss the remaining claims is premature and should be

denied because it’s based on factual issues that can’t be resolved until discovery

is completed.

II. STANDARD OF REVIEW

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The court can defer considering or deny a motion for summary judgment

under FED. R. CIV. P. 56 to allow the non-movant to take discovery, but the

defendants brought their motion under FED. R. CIV. P. 12(b)(6), challenging the

sufficiency of the complaint, not the merits of the plaintiff’s claims. When

considering a Rule 12(b)(6) motion to dismiss, the court construes the complaint

in the light most favorable to the nonmoving party, accepts all well-pleaded facts

as true, and draws all inferences in the nonmoving party's favor. Reynolds v. CB

Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). FED. R. CIV. P. 8(a)(2),

however, "demands more than an unadorned, the-defendant-unlawfully-harmedme accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, 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. at 678

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 570); see also Morrison v. YTB

Int'l, Inc., 649 F.3d 533, 538 (7th Cir. 2011); Brooks v. Ross, 578 F.3d 574, 581

(7th Cir. 2009). A claim is plausible if "the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678; see also Swanson v.

Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)("the plaintiff must give enough

details about the subject-matter of the case to present a story that holds

together."). "Threadbare recital of the elements of a cause of action, supported by

mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678. 

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III. DISCUSSION

A. Statute of Limitations 

The parties agree that Indiana’s two-year statute of limitations for personal

injury actions, IND. CODE 34-11-2-4, applies to each of Mr. Hartz’s claims, see

Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013); Soignier v. Am. Bd. of Plastic

Surgery, 92 F.3d 547, 551 n.3 (7th Cir. 1996); Schott v. Huntington National

Bank, 914 F.Supp.2d 933, 939 (S.D. Ind. 2012), but disagree on when the

limitations period began to run. The defendants maintain that it began to run

when the conduct complained of (the denial of medical care and medications)

occurred, and that the statute of limitations bars Mr. Hartz’s claims to the extent

he seeks damages for any act or omission that occurred before January 7, 2011. 

Mr. Hartz contends that the limitations period didn’t begin to run until January

6-7, 2011, when he fell and was physically injured, and that his complaint was

filed within two years of that date (on January 7, 2013).2 

Deciding when Mr. Hartz’s claims accrued for purposes of a statute of

limitations defense involves a fact-intensive inquiry that generally would preclude

dismissal at this early stage of the proceedings. See United States v. Norwood, 602

F.3d 830, 837 (7th Cir. 2010); Devbrow v. Kalu, 705 F.3d at 768; Hileman v.

Maxe, 367 F.3d 694, 696 (7th Cir. 2004); Soignier v. Am. Bd. of Plastic Surgery,

2

 Mr. Hartz points out that the Clerk’s Office was closed and inaccessible on Saturday

and Sunday, January 5 and 6, 2013, so he had until January 7 to file his compliant under FED. R.

CIV. P. 6.

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92 F.3d at 551-53; Schott v. Huntington National Bank, 914 F.Supp.2d at 939.

An exception exists when “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), but Mr. Hartz wasn’t required to “anticipate or

attempt to defuse potential defenses” in his complaint, U.S. Gypsum Co. v.

Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003), and his complaint “does

not fail to state a claim simply because it omits facts that would defeat a statute

of limitations defense.” Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir.

2006); see also Cancer Foundation, Inc. v. Cerberus Capital Mgmt, LP, 559 F.3d

671, 674 (7th Cir. 2009). Under the applicable accrual rules, the statute of

limitations begins to run “when the plaintiff learns that he [has] been injured, and

by whom.” United States v. Norwood, 602 F.3d 830, 837 (7th Cir. 2010); see also

Devbrow v. Kalu, 705 F.3d at 768; Schott v. Huntington Nat’l Bank, 914

F.Supp.2d 933, 939 (S.D. Ind. 2012). 

At this stage of the proceedings, no one disputes that Mr. Hartz’s claim for

injuries sustained when he fell from his bunk on January 6 or 7, 2011 was timely

filed. But those don’t appear to be the only injuries he alleges. The complaint

seeks damages not only for the physical injuries sustained in the fall, but also for

the pain and suffering allegedly “caused by Defendant[s’] denial of necessary

prescriptions, medical care or treatment and violations of the Plaintiff’s

constitutional, statutory, and administrative rights.” Mr. Hartz hasn’t asserted a

continuing violation (although it might be inferred from the complaint) or grounds

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for equitable tolling, and his complaint doesn’t state when the alleged violations

occurred, or when Mr. Hartz knew, or should have known, that he’d been injured

by acts or omissions that occurred on or before January 7, 2011. 

But neither does the complaint foreclose the possibility of a continuing

violation or equitable tolling. When a complaint, like this one, doesn’t “set forth

everything necessary to satisfy the affirmative defense,” dismissal under Rule

12(b)(6) would be premature. United States v. Lewis, 411 F.3d 838, 842 (7th Cir.

2005); see also Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003) (“affirmative

defenses do not justify dismissal under Rule 12(b)(6)”).

B. Sufficiency of the Complaint

1. The ADA Claim

Although the caption in the complaint indicates that Mr. Hartz’s ADA claim

is “Against Defendant Lain in [his] Official Capacity,” the substantive allegations

refer to the “Defendants” collectively and/or the “Defendant” (presumably Sheriff

Lain). The complaint alleges that: “Defendants violated Plaintiff’s rights under the

American[s] with Disabilities Act,” “impermissibly discriminated against Plaintiff

on the basis of his medical condition and need for prescription treatment, a

recognizable disability under the A.D.A.” and “intentionally discriminated against

Plaintiff solely on the basis of his disability, in violation of his rights under the

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ADA.”3

 The complaint alleges, in the alternative, that “Defendant intentionally or

with deliberate indifference to Plaintiff’s serious medical need, refused to [make

reasonable accommodations for his disability]”, and “denied [him] access to 

medical services provided by Defendant.”4

The defendants moved to dismiss the ADA claim in its entirety, contending

that the alleged denial of medical care might provide a basis for a claim under the

Eighth Amendment, but it doesn’t state a claim under the ADA.5

 The court agrees.

The ADA applies to inmates, Pennsylvania Dept of Corrections v. Yeskey,

524 U.S. 206 (1998), but Mr. Hartz hasn’t stated a plausible claim under that

statute. His complaint simply recites the elements of an ADA claim and makes

conclusory statements about the defendants’ actions. It doesn’t identify the nature

of Mr. Hartz’s disability, what services, programs, or activities he was alleged

denied, but others received, or which defendant or defendants he’s referring to.

Such allegations are insufficient. See Ashcroft v. Iqbal, 556 U.S. at 678; Swanson

v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010); Perrey v. Donahue, 2007 WL

4277621, at *4 (N.D. Ind. 2007).

3 See Paragraphs 1, 3, and 65-73 of the Complaint [Doc. No. 1].

4 See Paragraphs 74-75 of the Complaint [Doc. No. 1].

5 The defendants also contend that Mr. Hartz’s ADA claim is barred by the applicable two-year

statute of limitations because it accrued “the [first time] that he was allegedly informed by Porter County

Jail staff that he would not be given medications.” Citing Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp., 522 U.S. 192, 195 (1996); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d

547, 551 n.3 (7th Cir. 1996). For the reasons previously stated, dismissal under Rule 12(b)(6) based on a

statute of limitations defense would be premature.

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 2. Section 1983 Claim Against Warden Widup

The defendants also have moved to dismiss any claim against Warden

Widup in his individual capacity under 42 U.S.C. § 1983, contending that the

complaint doesn’t sufficiently allege that he was personally involved in the denial

of medication and medical care. Although Mr. Hartz believes the allegations of the

complaint are sufficient as pleaded, he maintains that “discovery is necessary to

reveal if Warden Widup qualifies as one of the John Does personally involved with

the Plaintiff or if he knew of their conduct, facilitated it, approved, condoned or

turned a blind eye or acted outside of his scope of employment as it relates to this

action,” and asks the court to deny the defendants’ motion as premature. 

The issue before the court isn’t whether defendants are entitled to judgment

on the merits, but whether the compliant sufficiently states a plausible claim for

relief. To survive a motion to dismiss, "the plaintiff must give enough details about

the subject-matter of the case to present a story that holds together." Swanson v.

Citibank, N.A., 614 F.3d at 404. Mr. Hartz hasn’t done that. 

The complaint makes several conclusory statements about the defendants

collectively, but contains only two references to Warden Widup specifically. The

complaint alleges that Mr. Hartz was in the custody of various officials at the

Porter County Jail, including Warden Widup, and that Porter County was a

necessary party to the litigation because the plaintiff was seeking damages against

Warden Widup and Sheriff Lain in their official capacities. The complaint alleges

that “the Defendants” knew about Mr. Hartz’s medical condition, disregarded his

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“requests for treatment . . . and failed to take reasonable measures to meet [his]

serious medical needs”, and did so in furtherance of an “unreasonable” policy or

custom that Sheriff Lavin established and maintained,” and that “Defendants’

actions, inactions, policies, and/or widespread customs caused Plaintiff actual

injury.” But those conclusory statements aren’t supported by any factual content

from which the court could reasonably infer that Warden Widup knew about Mr.

Hartz’s condition, or was personally involved in, or liable for, the alleged

deprivation of Mr. Hartz’s constitutional rights under the Fourteenth Amendment.

Dismissal of the individual capacity claim against Warden Widup is warranted.

See Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (“to be liable

under 1983, an individual defendant must have ‘caused or participated in a

constitutional deprivation’”); Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006)

(“To be personally responsible, an official ‘must know about the conduct and

facilitate it, approve it, condone it, or turn a blind eye.’”), overruled on other

grounds, Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013). 

3. The County, Board, and “Jail Governing Board or Body”

Porter County, the County Board of Commissioners, and the individual

Board members move to dismiss all claims against them, contending that they

don’t exercise control over the Sheriff or the Sheriff’s Department, aren’t

responsible for administering the manner of an inmate’s incarceration, Donahue

v. St. Joseph County, 720 N.E.2d 1236, 1240 (Ind. App. 1999), and aren’t liable

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for the acts or omissions of the Sheriff or Sheriff’s Department under a respondeat

superior theory or any other theory. See Argandona v. Lake County Sheriff’s

Department, 2007 WL 518799 *3 (N.D. Ind. Feb. 13, 2007); Kocon v. Lake County

Sheriff’s Dept., 2007 WL 1959239 *8 (N.D. Ind. June 29, 2007); Carver v.

Crawford, 564 N.E.2d 330, 334 (Ind. App. 1990). The defendants also contend

that the “Porter County Jail Governing Board or Body” isn’t a viable legal entity

and that the complaint doesn’t sufficiently identify what board or body Mr. Hartz

refers to, and so falls short the notice pleading requirements of FED. R. CIV. P.

8(a)(2). 

Mr. Hartz doesn’t address the sufficiency of the allegations against the

County, the Board, its members, or the “Porter County Jail Governing Board or

Body,” or point to any factual content in the complaint from which the court could

reasonably infer that the named defendant are liable for the misconduct alleged.

He simply asserts that the motion to dismiss should be denied because “discovery

is needed to determine or reveal if the county or the Board of Commissioners acted

beyond [their] statutory authority . . .” and if there is, in fact, a “Porter County Jail

Governing Board or Body.” For reasons previously stated, the court once again

disagrees.

The complaint alleges that “Defendants were aware of [Mr. Hartz’s]

condition,” and were deliberately indifferent to his medical condition and/or were

negligent when they failed to provide him with his medications and medical

treatment; that “Defendants” discriminated against Mr. Hartz on the basis of his

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disability (the undisclosed medical condition) when they failed to provide “effective

medical services” and access to the services, benefits, activities, programs, or

privileges that other non-disabled inmates have, or to make reasonable

accommodations for his medical condition/disability; and that Mr. Hartz was

injured as a result of “Defendants’ actions, inactions, policies, and/or widespread

customs.” But the complaint also alleges that Sheriff Lain established and

maintained the policies or customs in question. No allegations tend to show that

the County, the Board of Commissioners, or the “Jail Governing Board or Body”

knew or should have known about the Sheriff’s alleged policies and customs, that

they were the “moving force” behind the alleged misconduct, see Board of County

Comm’rs of Bryan County, Ok. v. Brown, 520 U.S. 397, 404 (1997), or that the

alleged violations occurred at their direction or with their consent. See Smith v.

Rowe, 761 F.2d 360, 369 (7th Cir. 1985). The only allegations in the complaint

that make any reference to the County, the Board of Commissioners, and the

“County Governing Board or Body” are found in paragraphs 10 and 12, which

state:

10. Advanced Correctional Healthcare provides medical services at

the Porter County Jail at the direction of Porter County Sheriff David

Lain or the Porter County Jail Governing Board or Body and /or

Porter County by its Board of Commissioners.

12. Defendant Porter County is a necessary party because Plaintiff

is seeking damages from Defendant David Lain and Joseph Widup in

each [of] their official capacities as Sheriff of Porter County and

Warden of the Porter County Jail, respectively. Defendant Porter

County by its Board of Commissioners Nancy A. Adams, Carol

Knoblock[,] Laura Shurr Blaney, and John Evans is joined in this

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action pursuant to the Indiana Code and have received notice

pursuant to I.C. 34-13-3-5 and I.C. 34-13-3-8 or such other notice

statute section. 

“Plaintiff must to better than putting a few words on paper that, in the hands of

an imaginative reader, might suggest that something has happened to [him] that

might be redressed by the law.” Swancon v. Citibank, N.A., 614 F.3d at 403

(emphasis in original). Mr. Hartz’s complaint offers nothing more.

4. Loss of Consortium

The defendants contend, and Mr. Hartz concedes, that the loss of

consortium claim filed on behalf of his minor daughter is subject to dismissal

under Dearborn Fabricating and Engineering Corp., Inc. v. Wickham, 551 N.E.2d

1135, 1139 (Ind. 1990). The court agrees. 

IV. CONCLUSION

For the reasons stated, defendants’ partial motion to dismiss [Doc. No. 22]

is GRANTED in part, and DENIED in part. The defendants’ motion to dismiss all

claims to the extent they’re based on acts or omissions that occurred before

January 7, 2013 is DENIED. In all other respects, the motion is GRANTED. The

ADA claim, all claims asserted against Porter County, the Porter County Board of

Commissioners, the individual Board members, and the “Porter County Jail

Governing Board or Body,” the individual capacity claim against Warden Widup

under 42 U.S.C. § 1983, and the loss of consortium claim on behalf of Mr. Hartz’s

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minor daughter are DISMISSED without prejudice. If Mr. Hartz wishes to amend

his complaint, he must seek leave of court or obtain the opposing parties’ written

consent, pursuant to FED. R. CIV. P. 15(a)(2).

SO ORDERED.

ENTERED: November 5, 2013 

 /s/ Robert L. Miller, Jr. 

Judge

United States District Court

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