IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOSEPH STAMBAUGH, )

)

Plaintiff, )

)

v. ) CAUSE NO. 3:14 CV 582

)

ST. JOSEPH COUNTY )

SHERIFF MIKE GRZEGOREK, )

et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss

Plaintiff’s First Amended Complaint, filed by Defendant, St. Joseph

County Sheriff Mike Grzegorek, on December 4, 2014 (DE #34). For

the reasons set forth below, the Motion (DE #34) is GRANTED and the

claims against the John/Jane Doe Defendants and St. Joseph County

Sheriff Mike Grzegorek are DISMISSED WITH PREJUDICE. The case

remains pending against Defendant, Beacon Health Ventures, Inc. 

BACKGROUND

The following facts are based on the allegations of the first

amended complaint, which this Court accepts as true at this stage

of the litigation. This lawsuit stems from the policies and

practices engaged in by Defendants at the St. Joseph County Jail in

South Bend from approximately May 25, 2013 to approximately
November 28, 2014. Plaintiff, Joseph Stambaugh, claims he was

denied adequate medical care for a serious medical condition while

in St. Joseph County Jail. 

Beacon Health Ventures, Inc., d/b/a Memorial Home Care, Inc.,

a/k/a Memorial Home Care (hereinafter “Beacon”), is a company doing

business at 3355 Douglas Road, in South Bend, Indiana. (First Am.

Compl., DE #21 at ¶4.) Beacon employed the John Does/Jane Does as

medical personnel at the St. Joseph County Jail that were

responsible for the medical care of Stambaugh during his

incarceration. (Id.) Stambaugh was arrested on or about May 12,

2012. (Id. at ¶5.) During his arrest, Stambaugh was shot

approximately fourteen times prior to being apprehended, with at

least three of the shots hitting him in his hands causing damage to

his fingers and hands. (Id.) Stambaugh’s physician ordered that

he receive bone grafts and repair of severed nerves, which needed

to be reconnected in his upper right arm. (Id.) After his arrest,

the Plaintiff was booked into the St. Joseph County Jail, on or

about May 25, 2012, where he continued to require significant

medical care and treatment of his injuries. (Id.)

During the six months Stambaugh remained incarcerated at the

jail, he never actually received nerve surgery for his right arm,

contrary to his physician’s advice. (Id. at ¶6.) Plaintiff

alleges the surgery was necessary for him to have the potential to

regain movement and functioning in his right hand. (Id.) After

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asking the St. Joseph County Jail Warden and the Jail Medical

Director about the nerve surgery, Stambaugh was told that the

nearest specialist who could do the surgery was in Indianapolis,

Indiana, and required payment of the surgery up front, or they

could not do the surgery. (Id.) Stambaugh was indigent and could

not pay up front for the surgery, so the nerve surgery was never

scheduled. (Id.) However, the bone graft surgery did occur. 

(Id.) Stambaugh alleges because the John Doe/Jane Doe jail and

medical personnel never arranged for or scheduled the nerve surgery

for Plaintiff, his right arm is paralyzed and has atrophied. (Id.

at ¶7.) 

Stambaugh has sued St. Joseph County Sheriff, Mike Grzegorek,

and Beacon Health Ventures, Inc., d/b/a Memorial Home Care, Inc.,

a/k/a Memorial Home Care. Stambaugh’s first amended complaint,

pursuant to section 1983, alleges that the individually named

Defendants, John Does/Jane Does were deliberately indifferent to

his serious medical need for nerve surgery in his right arm and by

failing to arrange for and schedule his surgery, they subjected him

to a denial of adequate medical care in violation of Plaintiff’s

federally protected right to be free from cruel and unusual

punishment under the Eight Amendment of the United States. (Id. at

¶8.) 

Stambaugh further contends that the individually named

Defendants John Does/Jane Does were acting pursuant to the

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“unconstitutional/constitutionally deficient policies, practices,

procedures, and/or customs of the St. Joseph County Sheriff

pertaining to the provision of the medical care to prisoners,

including indigent prisoners such as the Plaintiff when they denied

him adequate medical care.” (Id. at ¶9.) Stambaugh alleges that

the Sheriff, “in his official capacity,” is therefore liable for

the denial of adequate medical care as well. (Id.) Further,

Stambaugh claims that John Doe/Jane Doe jail medical personnel who

were the direct employees of Memorial Home Care, Inc., acted

carelessly, recklessly and with negligence as to the provision of

medical care to the Plaintiff, making Memorial Home Care Inc.

liable to him under respondent superior. (Id. at ¶10.) 

Defendant, St. Joseph County Sheriff, Mike Grzegorek, filed

the instant Motion to Dismiss the First Amended Complaint under

Rule 12(b)(6) for failure to state a claim on December 4, 2014 (DE

#34.) Stambaugh filed a response in opposition to the Motion to

Dismiss on December 30, 2014 (DE #38.) Defendant then filed a

reply on January 5, 2015 (DE #40.) This motion is fully briefed

and ripe for adjudication.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to

be dismissed if it fails to “state a claim upon which relief can be

granted.” Allegations other than fraud and mistake are governed by

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the pleading standard outlined in Federal Rule of Civil Procedure

8(a), which requires a “short and plain statement” that the pleader

is entitled to relief.

In order to survive a Rule 12(b)(6) motion, the complaint

“must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face’.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must

be accepted as true, and all reasonable inferences from those facts

must be resolved in the plaintiff’s favor. Pugh v. Tribune Co.,

521 F.3d 686, 692 (7th Cir. 2008). However, plaintiffs may plead

themselves out of court if the complaint includes allegations that

show they cannot possibly be entitled to the relief sought. 

McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). 

Motion to Dismiss John/Jane Does Individually

Federal Rule of Civil Procedure Rule 10(a) states that every

pleading must have a caption with the court’s name, a title, a file

number and a Rule 7(a) designation. The title of the complaint

must name all the parties; the title of other pleadings, after

naming the first party on each side, may refer generally to other

parties. Also, Federal Rule of Civil Procedure Rule 4m states: If

a defendant is not served within 120 days after the complaint is

filed, the court . . . must dismiss the action without prejudice

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against the defendant or order that service be made within a

specified time. 

Defendant, Sheriff Grzegorek, moves to dismiss the claims

against the John/Jane Doe Defendants, names unknown, who are named

in their individual capacity pursuant to 42 U.S.C. § 1983, because

the John/Jane Doe Defendants were not listed in the caption. (DE

#34 ¶5.) Defendant further moves to dismiss the claims because

Stambaugh has failed to serve the John/Jane Doe Defendants within

120 days of the filing of the complaint in compliance with Fed. R.

Civ. P. 4m. (Id. ¶6.) Finally, Defendant argues that “[a]ny

attempt by Plaintiff now to amend his First Amended Complaint in

order to identify and name the John/Jane Doe Defendants would be

futile since such an action would be barred by the statute of

limitations.” (Id. ¶ 7.)

Stambaugh filed his original complaint on March 24, 2014,

naming John/Jane Doe Defendants. (DE #5.) On September 4, 2014,

Stambaugh filed his first amended complaint modifying his claim by

removing the John/Jane Doe Defendants from the caption1 and adding

Beacon as a defendant. (DE #21.) It has been over 120 days since

the complaint was filed. Plaintiff’s claim brought under 42 U.S.C.

§ 1983 has a two year statute of limitations, which began running

1 However, there are still allegations in the first amended

complaint that the “individually-named Defendants are John/Jane

Does (names unknown) who are named in their individual capacity

pursuant to 42 U.S.C. § 1983.” (First Am. Compl., DE #21, ¶ 2.)

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on the date which Plaintiff discovered he had been injured - in

this case, at the latest, on November 28, 2012 (the latest date

Plaintiff claims he was deprived of medical care). Wallace v.

Kato, 549 U.S. 384, 387 (2007); Cada v. Baxter Healthcare Corp.,

920 F.2d 446, 450 (7th Cir. 1990). 

Stambaugh concedes that “there are no John/Jane Doe Defendants

as they were never identified and the statute of limitations has

expired.” (DE #38. P. 1.) Plaintiff also states “there are no

individually-named Defendants who are liable in their individual

capacity” (emphasis in original) and that “the individual capacity

claims against the individual actors were not filed within the

appropriate statute of limitations.” (DE #39, pp. 1-2.) The Court

concurs that even if Stambaugh tried to amend the complaint in the

future again to identify John Doe and Jane Does, it would be

inappropriate to grant such leave to amend because a plaintiff

cannot, “after the statute of limitations period, name as

defendants individuals that were unidentified at the time of the

original pleading.” Jackson v. Kotter, 541 F.3d 688, 696 (7th Cir.

2008). Therefore, the claims against the John/Jane Doe Defendants

are hereby dismissed with prejudice as untimely. See, e.g., Todd

v. Lake Cnty. Sheriff’s Dep’t, No. 2:08 CV 314, 2013 WL 2156470, at

*10-11 (May 17, 2013)(dismissing case against John Doe defendants

with prejudice where Court found the limitations period had expired

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as to John Doe defendants).2

Motion to Dismiss Claims Against the Sheriff

There are two main allegations against Sheriff Mike Grzegorek

in the first amended complaint. Plaintiff alleges that he, in his

official capacity, was responsible for the policies, practices,

procedures, and customs in effect at the St. Joseph County Jail

pertaining to the provision of medical care to prisoners, which

resulted in an unconstitutional denial of adequate medical care to

Plaintiff from May 25, 2012 through November 28, 2013. (DE #21,

¶3.) Further, Stambaugh argues the individually-named Defendants

John Does/Jane Does were acting pursuant to the

unconstitutional/constitutionally deficient policies, practices,

procedures and/or customs of the St. Joseph County Sheriff

pertaining to the provision of medical care to prisoners, including

indigent prisoners such as Plaintiff when they denied him adequate

medical care, so the Sheriff is liable in his official capacity for

the denial of adequate medical care, which violated Plaintiff’s

rights under the Eighth Amendment and 42 U.S.C. § 1983. (DE #21,

¶9.) The complaint specifies Sheriff Grzegorek “is named in his

official capacity” (DE #21, ¶3), and it is settled that “the

2 To the extent Defendant requests in his reply memorandum

that certain paragraphs of the first amended complaint be

stricken (DE #40, pp. 1- 3), this request violates the local rule

that motions must be filed separately. N.D. Ind. L.R. 7-1. As

such, the request is denied. 

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capacity in which litigation proceeds is largely the plaintiff’s

choice . . . [t]he plaintiff may plead a claim either way . . . .” 

Walker v. Rowe, 791 F.2d 507, 508 (7th Cir. 1986) (citation

omitted). 

42 U.S.C. § 1983 states in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any

State . . . subjects, or causes to be subjected,

any citizen of the United States . . . to the

deprivation of any rights . . . secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

As an initial matter, it is important to note that §1983 “does

not create substantive rights; rather, ‘it is a means for

vindicating federal rights conferred elsewhere’.” Padula v.

Leimbach, 656 F.3d 595, 600 (7th Cir. 2011) (quoting Ledford v.

Sullivan, 105 F.3d 354, 356 (7th Cir. 1997)). Thus, in order to

state a valid claim for relief under § 1983, the “[plaintiff] must

establish that [he was] deprived of a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.” American

Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Padula, 656

F.3d at 600; Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th

Cir. 2006). 

A claimant can impose personal liability on a government

official under section 1983 by demonstrating that the official,

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acting under color of state law, caused the deprivation of a

federal right. Kentucky v. Graham, 473 U.S. 159, 166 (1985). A

suit against a government officer in his official capacity is

really suit against an entity of which the officer is an agent. 

Mihelic v. Will Cnty., Illinois, 826 F.Supp.2d 1104, 1117 (N.D.

Ill. 2011) (citing Franklin v. Zaruba, 150 F.3d 682, 684 n.1 (7th

Cir. 1998)). Governmental liability cannot attach where there is

no finding that the individual officer is liable on the underlying

substantive claims. Durkin v. City of Chicago, 341 F.3d 606, 615

(7th Cir. 2003) (affirming dismissal of section 1983 claim where no

individual officer was liable on the underlying substantive claim,

so “a municipality cannot be found liable if there is no finding

that the individual officer is liable on the underlying substantive

claim”.). If the individual has not suffered a constitutional

deprivation at the hands of an individual officer, the fact that

departmental policies might have authorized the officers’ actions

is irrelevant. Mihelic, 826 F.Supp.2d at 1117 (“Governmental

liability cannot attach where there is no finding that the

individual officers are liable on the underlying substantive

claims.”). 

In the instant motion, Defendant argues that the claim against

Sheriff Grzegorek should be dismissed because there is a lack of an

underlying claim against the individual jail medical personnel (who

were dismissed). Plaintiff simply contends “this argument is

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ridiculous,” and cites two cases from other circuits, Colvin v.

McDougall, 62 F.3d 1316, 1318 (11th Cir. 1995) (merely stressing

the difference between an official capacity suit and an individual

capacity suit), and Gean v. Hattaway, 330 F.3d 758, 765-66 (6th

Cir. 2003) (reviewing the difference between official capacity

suits and individual capacity suits), which factually are not on

par with this case, and legally, have no relevance to this case. 

In stark contrast, Defendant Sheriff Grzegorek has cited a case

that is directly on point. In Mihelic, on a motion to dismiss,

the Court dismissed the claims against the individual sheriffs

because it found the first and second amended complaints did not

relate back to the initial complaint, and the claims against the

individual officers were barred by the statute of limitations. 

Mihelic, 826 F.Supp.2d at 1115-16. The Court then reasoned that:

[G]overnmental liability cannot attach where there is no

finding that the individual officers are liable on the

underlying substantive claims. Where an individual has

not suffered a constitutional deprivation at the hands of

an individual officer, the fact that departmental

policies might have authorized the officers’ actions is

besides the point. Here, because the Court has dismissed

the underlying claims against the individual officers,

there is no underlying constitutional violation. 

Accordingly, Plaintiff’s claims against [the sheriff] in

his official capacity . . . are dismissed.

Id. at 1117-18 (citations omitted).

Similarly, Plaintiff in this case has conceded that the

statute of limitations has expired on the John and Jane Doe

defendants, thus there cannot be a finding that the individual

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officers or care givers are liable on underlying substantive

claims. As such, because there is no underlying constitutional

violation, the claim against Sheriff Grzegorek in his official

capacity must be dismissed. See, e.g., Schlatter v. Fries, No.

1:11-CV-211, 2013 WL 3288412, at *13-14 (N.D. Ind. June 27, 2013)

(dismissing official capacity claim against sheriff where plaintiff

failed to first show an underlying constitutional violation by

individual employees). 

CONCLUSION

For the reasons set forth below, the Motion (DE #34) is

GRANTED and the claims against the John/Jane Doe Defendants and St.

Joseph County Sheriff Mike Grzegorek are DISMISSED WITH PREJUDICE. 

The case remains pending against Defendant, Beacon Health Ventures,

Inc. 

DATED: April 28, 2015 /s/ RUDY LOZANO, Judge

United States District Court 

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