UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DR. TONEY FORD, SR., )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:14-CV-320 PS 

)

DEREK SESSOMS, et al., )

)

Defendants. )

OPINION AND ORDER

On November 20, 2014, Dr. Toney Ford, Sr., a pro se plaintiff, was granted leave to

proceed in forma pauperis on Count II of his complaint as against defendant Derek

Sessoms, a Marion, Indiana police officer. [DE 3.] The surviving claim against Sessoms

is brought under 42 U.S.C. §1983, and alleges that Sessoms violated Ford’s equal

protection rights when he unlawfully harassed, arrested and detained Ford on

September 23, 2013 based on his race and nationality. [Id. at 4.] Now before me is

Sessoms’ motion to dismiss. 

The facts alleged in the complaint are that on the day in question, Ford noticed

that the car he was driving was being followed by a strange white car, which persisted in

its pursuit through multiple turns, causing Ford to “bec[o]me fearful for his safety.” [DE

1 at 5-6.] Ford claims that the car tailed him so closely it caused him to have an accident

in which he chose to veer off the street and hit a stop sign rather than risk being rearended. [Id. at 6.] After the collision, Ford got out of the car and walked or ran away
from the scene. [Id.] The white car turned out to be a police car, and Ford was arrested,

presumably by defendant Sessoms, although the complaint doesn’t identify the arresting

officer by name. [Id.] 

In addition to the motion to dismiss, Sessoms also filed a motion to stay the case

pending the resolution of the state criminal proceedings against Ford that arose out of

the same arrest. Magistrate Judge Collins granted the stay, which has subsequently been

lifted following Ford’s guilty plea to two of the state charges. [DE 35.] On October 16,

2015, Ford entered pleas of guilty to Count 2, resisting law enforcement, and Count 3,

failure to stop at the scene of an accident resulting in damage. [DE 34.] Pursuant to a

plea agreement, the charge of resisting law enforcement with use of a vehicle (Count 1)

was dismissed. [Id.]

The claim remaining in this case after the screening review under 28 U.S.C.

§1915(e)(2)(B) is an equal protection claim that Officer Sessoms “acted to harass, arrest

and detain Ford and did so based on his race or nationality.” [DE 3 at 4.] Ford’s specific

factual allegations about the events of September 23 don’t reference race or racial

motivation. More generally, however, Ford alleges that “Defendants individually and

collectively have shown a pattern of engaging in or allowing and condoning agents

under their control to engage in discriminatory patterns and practices against members

of the African-American race” [DE 1 at ¶39] and that “Defendants acted collectively to

discriminate against Plaintiff on the basis of his race and nationality” [Id. at ¶40.] 

Though it is true that Ford’s complaint fails to expressly identify his race as African2
American, his pro se pleading is liberally construed in that manner, particularly since

Ford’s race is clearly known to defendant Sessoms after the related criminal proceedings

and the claim is expressly made in the briefing here. [See, e.g., DE 30 at 2 (referring to

“defendant’s desire to target plaintiff solely based upon the fact that he was an African

American driving on the streets of Marion”).] 

Sessoms’ motion invokes Fed.R.Civ.P. 12(b)(6), contending that Ford’s Count II

fails to state a claim on which relief can be granted. The applicable standard of

Fed.R.Civ.P. 8(a)(2) requires only “a short and plain statement of the claim showing that

the pleader is entitled to relief.” The Supreme Court has held that: “[t]o 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. 662, 678 (2009). See

also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Seventh Circuit has clarified

that: “[s]pecific facts are unnecessary, but the complaint must give the defendant fair

notice of what the claim is and the grounds upon which it rests.” Huri v. Office of the

Chief Judge of the Circuit Court of Cook County, 804 F.3d 826, 832 (7th Cir. 2015). As to

claims of discrimination based on race, a complaint is sufficient if it “identifie[s] ‘the

type of discrimination’ the plaintiff thought occurred, ‘by whom, ... and when[.]’” Id. at

833, quoting Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010).

 As to claims concerning Ford’s arrest, Sessoms argues they are defeated by the

probable cause clearly demonstrated by Ford’s own factual allegations. Sessoms cites

Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009): “Probable cause is an absolute

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defense to such a claim.” “A police officer has probable cause to arrest if a reasonable

person would believe, based on the facts and circumstances known at the time, that a

crime had been committed.” McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009). Ford had

hit a stop sign but left the scene of the accident. [DE 1 at 6.] By his own account, he was

arrested a block and a half away, even after hearing the sirens that identified the white

car as a police vehicle. [Id.] Leaving the scene of an accident involving property damage

is a Class B misdemeanor under Indiana law. See Ind. Code §§9-26-1-4 & 9-26-1-8(b). 

The facts as Ford has pled them establish that Sessoms had probable cause for Ford’s

arrest. This determination would be fatal to a claim challenging the arrest on Fourth

Amendment grounds, which was the issue in Gonzalez.

But Ford’s claim is based on equal protection, not the Fourth Amendment. And

Sessoms cites no authority for the proposition that the existence of probable cause for an

arrest defeats an equal protection claim that the arrest was motivated by race. To the

contrary: “Police need not arrest everyone who committed the same offense; selectivity

is normal—and is proper, unless based on a forbidden classification such as race.” Del

Marcelle v. Brown Cty. Corp., 680 F.3d 887, 902 (7th Cir. 2012) (Easterbrook, J., concurring

in the judgment). 

Sessoms’ minimal treatment of Ford’s equal protection theory is merely to assert

that “there are no factual allegations to support an equal protection claim in Ford’s

complaint.” [DE 20 at 7.] But as I pointed out above, Ford clearly alleges that the official

behavior he complains of was motivated by discrimination against him on the basis of

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his race. The allegations provide “fair notice” of the claim of race-based discriminatory

treatment and “the grounds upon which they rest.” Swierkiewicz v. Sorema N.A., 534 U.S.

506, 514 (2002). The equal protection claim as it relates to the arrest is adequately pled to

survive a motion to dismiss. 

As the screening order indicated, I construe Count II’s equal protection claim to

have three prongs, challenging the arrest and detention, and making a claim of racebased harassment. [DE 3 at 4.] The harassment is alleged to be Officer Sessum’s closely

following Ford in his unmarked police car on the basis of Ford’s race. Sessoms’ motion

fails to address the allegation that Ford was in that manner unlawfully harassed on the

basis of his race. In any event, the pleading provides enough facts on the issue “to raise

a reasonable expectation that discovery will reveal evidence supporting the allegations.” 

Huri, 804 F.3d at 833. The harassment aspect of Count II is not shown to be subject to

dismissal.

Finally, Ford’s equal protection claim also challenges his detention, about which

Ford alleges that his bond was set more than three times higher than typically required

of similarly situated defendants in Grant and Marion Counties. [DE 1 at ¶32.] Even

assuming that is true, and that the excessive bond was motivated by Ford’s race, no

claim against Sessoms is supported by those facts. As the complaint acknowledges, a

judge sets the bond, not Officer Sessoms. [Id. at ¶31.] Ford has no viable claim against

Sessoms based on his detention, and any claim that the judge was motivated by race in

violation of the equal protection clause would be barred by judicial immunity, which

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“extends to all judicial acts save those taken in the complete absence of jurisdiction.” 

Alexander v. Shan, 161 Fed.Appx. 571, 574 (7th Cir. 2005), citing Mireles v. Waco, 502 U.S. 9,

11-12 (1991). To the extent Count II asserts a claim against defendant Sessoms

concerning Ford’s detention, it will be dismissed for failure to state a claim.

CONCLUSION

The remaining Count II of Ford’s complaint contains claims that he was denied

equal protection of the law when Officer Sessoms harassed, arrested and detained Ford

on the basis of his race. The motion to dismiss fails to demonstrate that the claims

relating to Ford’s harassment and arrest are insufficiently pled under the standards of

Rule 8, and those claims will remain pending against Sessoms in both his individual and

official capacities. The claim relating to Ford’s detention will be dismissed for failure to

state a claim against defendant Sessoms, a police officer who had no role in the detention

decision.

ACCORDINGLY:

Defendant Derek Sessoms’ Motion to Dismiss [DE 19] is GRANTED IN PART

with respect only to plaintiff Toney Ford’s claim that his detention by defendant

Sessoms violated the equal protection clause. In all other respects, the motion is

DENIED.

SO ORDERED.

ENTERED: January 11, 2016. /s/ Philip P. Simon 

Philip P. Simon, Chief Judge 

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