UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

WILLIAM B. CLARK, )

)

Plaintiff, ) 

)

v. ) No. 2:14 CV 160

)

MATTHEW DJUKIC, )

DAMIAN MURKS; )

FRANCISCAN ALLIANCE, INC., )

d/b/a St. Margaret Mercy Hospital, )

and TOWN OF SCHERERVILLE, IN, )

)

Defendants. )

OPINION and ORDER

Plaintiff William B. Clark alleges that, after a traffic stop, he consented to having

his blood drawn at St. Margaret’s Hospital while in the custody of Schererville police

officers, to confirm his blood alcohol level. (DE # 1.) Clark further alleges that, after the

blood draw, he was forcibly catheterized against his will so that officers could obtain a

urine sample. (Id.) Clark sued, amongst others, Franciscan Alliance, Inc., the company

doing business as St. Margaret’s, for assault, battery, and failure to properly train its

employees. (Id.)

A. Franciscan’s Motion for Summary Judgment

Franciscan has moved for summary judgment on the claims (DE # 43), alleging

that they sound in medical malpractice and therefore are barred because Clark failed to

present his proposed claim to a medical review panel before filing the claim in court, as

required by the Indiana Medical Malpractice Act (the “Act”), Ind. Code § 34-18-8-4. 
“[S]ummary judgment is appropriate — in fact, is mandated — where there are

no disputed issues of material fact and the movant must prevail as a matter of law.”

Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations

and quotation marks omitted). However, in this case, Franciscan is not entitled to

judgment as a matter of law. This case is clearly controlled by Elliott v. Rush Memorial

Hospital, 928 N.E.2d 634, 640 (Ind. Ct. App. 2010), wherein the Indiana Court of Appeals

held that a claim of forced catheterization to obtain a urine sample for law enforcement

purposes is not a “malpractice” claim for purposes of the Act. The Elliott court

reasoned: “Elliott’s catheterization clearly was not for his own medical benefit. It was

not related to any treatment he needed for any disease or injury, but was carried out

solely for law enforcement purposes.” Id.

Clark’s claim of forced catheterization similarly falls outside of the purview of

the Act, and is not barred for failure to submit the claim to a medical review panel.

Therefore, Franciscan’s motion for summary judgment is denied. Clark’s motion to

strike affidavits submitted by Franciscan in support of its motion for summary

judgment (DE # 51) is denied as moot, as the affidavits are not necessary to decide the

motion for summary judgment.

B. Clark’s Motion to Dismiss

Clark has also moved to dismiss Franciscan’s counterclaims alleging: (1) abuse of

process, and (2) “frivolous litigation.” (DE # 16.) Federal Rule of Civil Procedure

12(b)(6) requires the court to dismiss a complaint which fails to state a claim upon

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which relief may be granted. A complaint must go beyond providing “labels and

conclusions” and “be enough to raise a right to relief above the speculative level.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In order to prevail on an abuse of process claim, Franciscan must prove that

Clark used judicial processes for an end other than that for which it was designed.

Comfax Corp. v. North Am. Van Lines, Inc., 638 N.E.2d 476, 481 (Ind. Ct. App. 1994). For

example, utilizing litigation to intimidate the other party into signing a contract

constitutes abuse of process. Archem, Inc. v. Simo, 549 N.E.2d 1054, 1061 (Ind. Ct. App.

1990).

In this case, Franciscan’s abuse of process claim is rooted in its contention that

Clark is lying about being forcibly catheterized. However, this is a matter of credibility

to be assessed by a fact-finder in Clark’s case against Franciscan. Franciscan also claims

that Clark seeks to influence pending criminal charges and harm the reputation of St.

Margaret’s with this lawsuit. However, these allegations are speculative and

conclusory, and Franciscan states no further facts to plausibly suggest that Clark has

used the judicial process in this case for any end other than to recover damages against

Franciscan for assault, battery, and failure to train its employees. Accordingly, the abuse

of process claim is dismissed.

Franciscan’s claim of “frivolous litigation” is also meritless. Through this claim,

Franciscan simply requests attorneys’ fees pursuant to Indiana Code § 34-52-1-1, which

permits fees to the prevailing party if the action was frivolous, unreasonable, or

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groundless or was litigated in bad faith. However, Section 34-52-1-1 is inapplicable in

federal court, Williams v. State Farm Ins. Co., No. 2:09-CV-177-PPS, 2011 WL 2111988, at

*2 (N.D. Ind. May 26, 2011), so the claim is dismissed.

For the foregoing reasons, Franciscan’s motion for summary judgment is

DENIED (DE # 43); Clark’s Rule 56 motion to strike is DENIED as moot (DE # 51); and

Clark’s motion to dismiss is GRANTED (DE # 16).

SO ORDERED.

Date: March 31, 2017

s/James T. Moody________________

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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