UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RYAN VERMILLION, )

)

Plaintiff, )

)

v. ) No. 3:14 CV 529

)

PERU CITY OF, ET AL., )

)

Defendants. )

OPINION AND ORDER

This matter is before the court on defendants Bill Raber, Steve Gough, James

Walker, Bill Berkshire, Chris Betzner, the Peru Police Department, J.O. Buffington,

Andrew Johnson, and the City of Peru’s partial motion to dismiss plaintiff Ryan

Vermillion’s complaint. (DE # 6.) Plaintiff has not filed a response, and the time to do so

has now passed. For the following reason, defendants’ motion to dismiss is granted in

part and denied in part.

I. Facts and Background

Plaintiff’s complaint is sparse, and the court must treat the facts alleged in the

complaint as true for purposes of evaluating defendants’ motion to dismiss. On

February 26, 2012, plaintiff was detained and arrested by City of Peru police officers

Buffington and Johnson. (DE # 3 at 2.) During his arrest, plaintiff was “battered” by

Buffington and Johnson, which resulted in plaintiff suffering a physical injury. (Id.) As a

result of this incident, plaintiff filed suit against defendants alleging the following

claims: “intentional battery” against Buffington and Johnson (id. at 2), “negligent
battery” against Buffington and Johnson (id. at 3), and a 42 U.S.C. § 1983 claim for

excessive force against all defendants. (Id. at 3-4.) In his complaint, plaintiff alleges that

defendant Bill Raber is the Chief of Police for the City of Peru, that James Walker is the

Mayor of Peru, and that defendants Raber, Steve Gough, Walker, Bill Berkshire, and

Chris Betzner make up the City of Peru Board of Works. (Id. at 1.) Defendants have now

moved to dismiss portions of plaintiff’s complaint. (DE # 6.) 

II. Legal Standard

Defendants have moved to dismiss plaintiff’s claims under RULE 12(b)(6) of the

FEDERAL RULES OF CIVIL PROCEDURE for failure to state a claim upon which relief may be

granted. A judge reviewing a complaint under a RULE 12(b)(6) standard must construe

it in the light most favorable to the non-moving party, accept well-pleaded facts as true,

and draw all inferences in the non-movant’s favor. Erickson v. Pardus , 551 U.S. 89, 93

(2007); Reger Dev., LLC v. Nat’l City Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the

liberal notice-pleading requirements of the FEDERAL RULES OF CIVIL PROCEDURE, the

complaint need only contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To satisfy RULE 8(a), “the statement

need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.’” Erickson, 551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). 

“While the federal pleading standard is quite forgiving, . . . the complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

2
plausible on its face.” Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011);

Twombly, 550 U.S. at 555, 570. A plaintiff must plead “factual content that allows the

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

alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To meet this standard, a complaint

does not need detailed factual allegations, but it must go beyond providing “labels and

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

Twombly, 550 U.S. at 555 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, 40 F.3d 247,

251 (7th Cir. 1994) among other authorities). As the Seventh Circuit recently explained,

a complaint 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 400, 404 (7th Cir. 2010). 

However, the plaintiff does not need to plead facts that establish each element of

a cause of action and, “[a]t this stage the plaintiff receives the benefit of imagination, so

long as the hypotheses are consistent with the complaint.” Sanjuan, 40 F.3d at 251. Even

if the truth of the facts alleged appears doubtful, and recovery remote or unlikely, the

court cannot dismiss a complaint for failure to state a claim if, when the facts pleaded

are taken as true, a plaintiff has “nudged their claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 555, 570.

III. Analysis

A. Plaintiff’s Claims Against Defendants Raber, Gough, Walker, Berkshire,

and Betzner

In their motion to dismiss, defendants argue that all of plaintiffs’ claims against

defendants Raber, Gough, Walker, Berkshire, and Betzner must be dismissed. (DE # 6 at

3
2.) First, defendants argue that plaintiff has failed to state a claim against these

defendants for battery because the complaint “fails to allege that [Raber, Gough,

Walker, Berkshire, and Betzner] made any harmful or offense [sic] contact with

plaintiff.” (Id. at 2.) “‘[A]n actor is subject to liability to another for battery if (a) he acts

intending to cause a harmful or offensive contact with the person of the other or a third

person, or an imminent apprehension of such a contact, and (b) a harmful contact with

the person of the other directly or indirectly results.’” Mullins v. Parkview Hosp., Inc., 865

N.E.2d 608, 610 (Ind. 2007) (quoting Restatement (Second) of Torts § 13 (1965)).1

It does not appear from plaintiff’s complaint that plaintiff is bringing a battery

claim against Raber, Gough, Walker, Berkshire, or Betzner. (DE # 3.) To the extent that

plaintiff is alleging a battery claim against any of these defendants, however, the court

agrees that plaintiff has failed to allege any facts or present any argument that would

support a claim that these defendants are liable for battery. Defendants’ motion to

dismiss will therefore be granted on this ground. 

Defendants also argue that plaintiff has failed to allege facts that would support

a claim that Raber, Gough, Walker, Berkshire, and Betzner are liable under Section 1983.

 As noted earlier, in addition to alleging that defendants are liable for intentional 1

battery, plaintiff also alleged that defendants are liable for “negligent battery.”

“Negligent battery, of course, does not exist: battery is an intentional tort, not a tort of

negligence.” Boruff v. Jesseph, 576 N.E.2d 1297, 1298 n.3 (Ind. Ct. App. 1991). Plaintiff has

not responded to defendants’ motion to dismiss to elaborate on his “negligent battery”

theory. Therefore, the court will treat both claims as an intentional battery claim. 

4
(DE # 6 at 2.) In his complaint, plaintiff appears to bring a Section 1983 claim against

these defendants in both their individual and official capacities. (DE # 3 at ¶ 2.) 

“An individual cannot be held liable in a § 1983 action unless he caused or

participated in an alleged constitutional deprivation.” Kuhn v. Goodlow, 678 F.3d 552,

556 (7th Cir. 2012) (citation and quotation omitted) (emphasis in original); Wolf–Lillie v.

Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (same); see also Drago v. Winnebago County Jail

Staff, No. 12 C 50116, 2013 WL 6512479, at *5 (N.D. Ill. Dec. 11, 2013) (“To hold a party

liable in their individual capacity under 42 U.S.C. § 1983, a plaintiff must allege the

individual was personally involved in the alleged constitutional deprivation.”).

Plaintiff’s complaint lacks any facts that would indicate these defendants were in any

way personally involved in plaintiff’s arrest. Therefore, defendants’ motion to dismiss

will be granted as it relates to plaintiff’s Section 1983 claim against Raber, Gough,

Walker, Berkshire, and Betzner in their individual capacities.

Plaintiff, however, also brings this claim against these defendants in their official

capacities. A suit against a city employee in their official capacity is essentially a suit

against the city itself. Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987); see also Jones v.

City of Elkhart, Cause No. 2:10–CV–402, 2012 WL 5947707, at *15 (N.D. Ind. Nov. 28,

2012). Thus, plaintiff’s claim against these employees in their official capacities are

actually claims against the City of Peru, and will be analyzed below. 

B. Plaintiff’s Claim Against The City of Peru Police Department 

5
Defendants argue that the City of Peru Police Department must be dismissed

because it is not a legal entity capable of being sued. (DE # 6 at 3.) Defendants are

correct that the Peru Police Department is not an entity that can be sued, and therefore,

defendants’ motion to dismiss will be granted as it relates to the Peru Police

Department. Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011) (“[T]he Indiana

statutory scheme does not grant municipal police departments the capacity to sue or be

sued.”).

C. Plaintiff’s Battery Claim Against Buffington and Johnson

Defendants argue that plaintiff’s state law battery claim against Buffington and

Johnson must be dismissed pursuant to the Indiana Tort Claims Act. (DE # 6 at 3.)

Defendants direct the court to Ind. Code. § 34-13-3-5, which states, in part: 

A lawsuit filed against an employee personally must allege that an act or

omission of the employee that causes a loss is:

(1) criminal; 

(2) clearly outside the scope of the employee’s employment; 

(3) malicious; 

(4) willful and wanton; or 

(5) calculated to benefit the employee personally. 

The complaint must contain a reasonable factual basis supporting the

allegations.

6
Ind. Code. § 34-13-3-5(c). Defendants argue that plaintiff has failed to allege any facts

that would support an inference that the Buffington and Johnson’s actions were

criminal, outside the scope of their employment, malicious, willful and wanton, or

calculated to benefit these defendants personally, as required by Ind. Code. § 34-13-3-

5(c). (DE # 6 at 4.) 

The factual allegations in his complaint are sparse, but plaintiff has alleged that

during his encounter with defendants Buffington and Johnson on February 26, 2012, he

was “battered” by those officers, which resulted in plaintiff suffering a physical injury.

(DE # 3 and 2.) Although the complaint does not go into further detail about the alleged

incident, at this stage of the litigation, the allegation that the officers “battered” him is

sufficient to create a reasonable factual basis to suggest criminal conduct took place. See

Richmond v. Swinford, No. 2:12–CV–243, 2012 WL 5903808, at *3 (N.D. Ind. Nov. 26,

2012); see also Ind. Code. § 35-42-2-1. Therefore, defendants’ motion to dismiss will be

denied as it relates to plaintiffs’ state law battery claim against Buffington and Johnson.

D. Plaintiff’s Claim Against the City Of Peru

Defendants also argue that plaintiff’s Section 1983 claim against the City of Peru

must be dismissed for failing to properly allege municipal liability. (DE # 6 at 4-5.) A

plaintiff can establish municipal liability under Section 1983 by producing evidence of: 

“(1) an express policy that, when enforced, causes a constitutional

deprivation; (2) a widespread practice that, although not authorized by

written law or express municipal policy, is so permanent and well settled as

to constitute a custom or usage with the force of law; or (3) an allegation that

the constitutional injury was caused by a person with final policymaking

authority.” 

7
Phelan v. Cook Cnty., 463 F.3d 773, 789 (7th Cir. 2006) (quoting Roach v. City of Evansville,

111 F.3d 544, 548 (7th Cir. 1997)); see also Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649,

664 (7th Cir. 2012). Thus, to state a claim for municipal liability, “a plaintiff must plead

the constitutional violation was caused by (1) an express municipal policy; (2) a

widespread, though unwritten, custom or practice; or (3) a decision by a municipal

agent with final policymaking authority.” Drager v. Village of Bellwood, 969 F.Supp.2d

971, 981 (N.D. Ill. 2013). 

Plaintiff has not done that in this case. Although plaintiff sues several defendants

in their official capacities and the City of Peru, he has not alleged the constitutional

violation set out in his complaint (excessive force) was the result of an express

municipal policy, a widespread practice, or a decision by an official with final

policymaking authority. In fact, plaintiff’s complaint lacks any factual detail that would

indicate that the City of Peru was in any way directly or indirectly involved in his arrest

in a way that would be relevant to municipal liability. Defendants’ motion to dismiss

will therefore be granted as to plaintiff’s Section 1983 claim against the City of Peru. 

IV. Conclusion 

For the foregoing reasons, defendants’ partial motion to dismiss is granted in

part and denied in part. Defendants’ motion to dismiss is GRANTED as it relates to the

following claims, which are now dismissed: Plaintiffs’ Section 1983 claim against

8
defendants Bill Raber, Steve Gough, James Walker, Bill Berkshire, and Chris Betzner;2

plaintiff’s Section 1983 claim against the City of Peru; and plaintiff’s Section 1983 claim

against the City of Peru Police Department. Defendants’ motion to dismiss is DENIED

as it relates to plaintiff’s state law battery claim against J.O. Buffington and Andrew

Johnson. The only claims that remain in this case are plaintiff’s state law battery claim

and Section 1983 individual capacity claim against defendants Buffington and Johnson. 

SO ORDERED.

Date: August 14, 2014

s/James T. Moody________________

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

2

 As noted above, to the extent that plaintiff is also alleging a battery claim

against any of these defendants, that claim is dismissed too.