UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JEREMIAH PATRICK, )

)

Plaintiff )

)

vs. ) CAUSE NO. 3:14-CV-782 RLM

)

OSCAR COWEN, JR., Sheriff of Starke )

County, Indiana, individually and in )

his official capacity; STARKE COUNTY, )

INDIANA; and STARKE COUNTY )

SHERIFF’S MERIT BOARD, )

)

Defendants )

OPINION AND ORDER

Jeremiah Patrick alleges that in July 2013 he was wrongfully terminated

from his position with the Starke County Sheriff’s Department. Mr. Patrick claims

in his action brought under 42 U.S.C. § 1983, 28 U.S.C. § 1331, and 28 U.S.C. §

1334 that the defendants violated his rights under the Fourteenth Amendment to

the United States Constitution (Count I), the defendants violated his procedural

and substantive due process rights under Indiana Code § 36-8-10 et seq. (Count

II), and the defendants’ actions constituted a breach of contract (Count III). The

case is before the court on the defendants’ motion for partial dismissal of Mr.

Patrick’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The

defendants say Starke County, Indiana is not a proper defendant and should be

dismissed, and Count II should be dismissed, as well, because Indiana Code § 36-

8-10-11 creates no private right of action. Mr. Patrick agreed in his response to
the motion that Starke County should be dismissed as a defendant, but disagrees

that Count II should be dismissed. Mr. Patrick filed his response brief along with

an amended complaint that substitutes the Starke County Sheriff’s Department

for Starke County, Indiana as a defendant. He represents that the substantive

allegations of the original complaint are otherwise unchanged. See Amd. Compl.,

at n.1. 

Because Mr. Patrick dismissed his claims against Starke County, Indiana

in his amended complaint, the defendants’ first ground for dismissal will be

denied as moot. And while the court generally would deny without prejudice a

motion to dismiss addressing an original complaint once an amended complaint

is filed, because Mr. Patrick’s amended complaint contains no substantive

changes to the facts or claims of the original complaint, the court will view the

defendants’ remaining ground for dismissal as addressing Count II of the amended

complaint.

Facts

Mr. Patrick alleges that on or about May 16, 2013, while employed as a

deputy with the Starke County Sheriff’s Department, he completed and submitted

the necessary paperwork to be granted time off under the Family Medical Leave

Act. Mr. Patrick says he didn’t receive any notice from the Sheriff’s Department

confirming that the leave time he was granted was designated as qualifying time

under FMLA. 

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On July 2, Sheriff Cowen wrote to Mr. Patrick to inform him that Sheriff’s

Department records showed that Mr. Patrick’s twelve weeks of FMLA leave was

due to expire on July 5; Sheriff Cowen indicated that Mr. Patrick should report

any disagreement he might have. Mr. Patrick presented a letter to the Sheriff on

July 3 setting forth his disagreement with the July 5 expiration date; at that same

time, Mr. Patrick gave the Sheriff a doctor’s note indicating that he would be

unable to return to work until July 29. Mr. Patrick says he received a second letter

from Sheriff Cowen on July 16 informing him that his FMLA leave had expired, his

position had been reassigned to another officer, and he was no longer employed

with the Starke County Sheriff’s Department based on his failure to contact his

employer during his time off. 

Mr. Patrick claims that before July 16, 2013 (the effective date of his

termination), he never received written notice of disciplinary charges, notice of a

hearing, notice of his right to a hearing, or notice of his right to counsel as

required by Indiana Code § 36-8-10-11. He asserts that “despite the clear due

process requirements applicable to all sheriff’s deputies provided via Indiana

statute, the Department (via the actions of Sheriff Cowen and the actions – or lack

thereof – of the Merit Board) terminated [his] employment in violation of his

statutory and constitutional protections.” Amd. Compl., ¶ 16. 

Mr. Patrick filed a petition for reinstatement with the Merit Board on

January 30, 2014, claiming that he had been illegally terminated and that the

Sheriff didn’t have the authority to unilaterally terminate his employment. He filed

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a supplement to his reinstatement petition on February 20, and the Merit Board

scheduled a hearing on his petition for March 11. According to Mr. Patrick, before

to that hearing, his attorney received a telephone call from the Merit Board

president, who told counsel that the Merit Board wouldn’t be granting Mr.

Patrick’s petition for reinstatement or his request for back pay regardless of any

evidence or argument presented at the hearing. Mr. Patrick reports that he

withdrew his petition for reinstatement on March 10, “[k]nowing that any hearing

before the Merit Board would be futile.” Amd. Compl., ¶ 21. 

Mr. Patrick claims in his amended complaint that the defendants violated

his procedural and substantive due process rights under the Fourteenth

Amendment by not filing formal disciplinary charges, not providing him with

notice of those charges, and not conducting a disciplinary hearing (Count I);

violated the procedural and substantive due process rights “conferred to him via

Indiana statute” by not conducting “the removal and appeals process proscribed

by Indiana Code § 36-8-10 et seq.” (Count II); and violated Indiana law by

breaching the parties’ contract (Count III). He seeks reinstatement to his prior

position, lost wages and benefits, compensatory damages, punitive damages

against defendant Oscar Cowen in his individual capacity, attorney fees, and

costs. 

The defendants move to dismiss Count II of the amended complaint based

on their argument that Mr. Patrick isn’t entitled to the relief he seeks under

Indiana Code § 36-8-10 et seq., the statute upon which he relies. According to the

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defendants, Section 36-8-10-11 sets forth a detailed framework for Sheriff’s

Department employees to challenge a termination decision, and because Mr.

Patrick didn’t take advantage of those remedies, a private right of action to enforce

the statute is not available to him.

Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must accept as true the factual allegations of the complaint and

draw all reasonable inferences in favor of the plaintiff without engaging in factfinding. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). “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. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). 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 (citing Bell Atlantic

Corp v. Twombly, 550 U.S. at 556). The allegations of the complaint “must be

enough to raise a right to relief above the speculative level” and give the defendant

fair notice of the claims being asserted and the grounds upon which they rest. Bell

Atlantic Corp. v. Twombly, 550 U.S. at 555.

Discussion

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Indiana Code § 36–8–10–11(a) creates in sheriff’s deputies a property

interest in their jobs and entitles them to procedural due process protections.

Marion County Sheriff’s Merit Bd. v. Peoples Broadcasting Corp., 547 N.E.2d 235,

239 (Ind. 1989). That section provides that a Sheriff 

may dismiss, demote, or temporarily suspend a county police officer

for cause after preferring charges in writing and after a fair public

hearing before the [merit] board, which is reviewable in the circuit

court. Written notice of the charges and hearing must be delivered by

certified mail to the officer to be disciplined at least fourteen (14) days

before the date set for the hearing. The officer may be represented by

counsel. The [merit] board shall make specific findings of fact in

writing to support its decision.

The scope of the property interest created by Section 36-8-10-11(a) is limited by

Section 36-8-10-11(b), which provides that a Sheriff may temporarily suspend an

officer without a merit board hearing for a period not exceeding fifteen days,

Vasquez v. Lake County Sheriff’s Dep’t, No. 2:07-CV-180, 2008 WL 5070450, at

*8 (N.D. Ind. Nov. 25, 2008), but neither party has argued that subsection (b)

applies here. A police officer dissatisfied with the merit board’s decision can file

an appeal in circuit court within thirty days of the date of the decision being

challenged. IND. CODE § 36-8-10-11(e). “The reasons for requiring a party to seek

administrative remedies are well established. Premature litigation may be avoided,

an adequate record for judicial review may be compiled, and agencies retain the

opportunity and autonomy to correct their own errors.” State Board of Tax

Comm’rs v. Montgomery, 730 N.E.2d 680, 684 (Ind. 2000).

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The defendants say that Mr. Patrick’s claim for violation of Indiana Code §

36-8-10-11(a) should be dismissed because he voluntarily chose to not take

advantage of the available procedures, negating his ability to plead a private right

of action in this court to enforce the statute. The defendants note that Mr. Patrick

says in his complaint that the merit board scheduled a hearing on his petition for

reinstatement, but he withdrew his petition before the hearing. The defendants

maintain that rather than filing suit in this court claiming a violation of the

statute, Mr. Patrick should have continued through the statutory process to

remedy the concerns he had about his termination. The defendants conclude that

because Mr. Patrick didn’t exhaust his administrative remedies, Count II of his

amended complaint should be dismissed for failure to state a claim upon which

relief can be granted.

Mr. Patrick has advanced two arguments – futility and estoppel – in

response to the defendants’ argument that he was required to exhaust his

administrative remedies, but the court needn’t reach the merits of the exhaustion

argument. Giving the words of the statute their plain and ordinary meaning, Miller

v. LaSalle Bank Nat’l Ass’n, 595 F.3d 782, 786 (7th Cir. 2010) (citing Basileh v.

Alghusain, 912 N.E.2d 814, 821 (Ind. 2009), and City of Carmel v. Steele, 865

N.E.2d 612, 618 (Ind. 2007)), Indiana Code § 36-8-10-11(a) and (b) provide that

a Sheriff can dismiss a county police officer for cause only “after a fair public

hearing before the [merit] board” if, as here, the punishment exceeds a fifteen-day

suspension. See McCorkle v. Henry County, No. 1:04-CV-1942, 2005 WL

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2035501, at *2 (S.D. Ind. Aug. 22, 2005) (“[T]he Board members had a statutory

duty under Indiana Code § 36-8-10-11 to conduct a hearing if the Sheirff’s

punishment exceeded a fifteen-day suspension.”). The defendants complain that

Mr. Patrick didn’t follow through with the March 2014 merit board hearing on his

petition for reinstatement, but Mr. Patrick has alleged that he wasn’t afforded a

hearing before his July 16, 2013 receipt of a letter from Sheriff Cowen telling him

that he was no longer employed with the Starke County Sheriff’s Department.

Accepting the amended complaint’s factual allegations as true, as the court must

do at this stage, Mr. Patrick’s allegations are sufficient to state a claim for

violation of Indiana Code § 36-8-10-11, and the defendants’ motion for dismissal

of Count II will be denied.

Conclusion

Based on the foregoing, the court DENIES as moot the defendants’ motion

to dismiss Starke County, Indiana as a defendant and DENIES the defendants’

motion to dismiss Count II of the amended complaint [docket #12].

SO ORDERED.

ENTERED: July 14, 2014 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

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