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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

GARY HARRISON, )

Plaintiff, )

)

v. ) Case No. 2:15-CV-00037

)

CAPTAIN MORRIS, JEFF BANG, )

GREG MANEE, D. BORGETTI, )

ST. CATHERINE HOSPITAL, and )

ALLISON O’KEEFE, )

Defendants. )

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Defendant, Allison O’Keefe, by counsel, Carly Brandenburg of Eichhorn & 

Eichhorn, LLP, pursuant to the Federal Rules of Civil Procedure files this 

Memorandum of Law in Support of Defendant’s Motion to Dismiss Plaintiff’s 

Complaint. In support thereof, Defendant’s counsel shows the Court as follows: 

I. INTRODUCTION 

Defendant Ms. O’Keefe is a traveling occupational therapist who worked with 

patients at several area hospitals in Northwest Indiana during the time frame 

involved in this Complaint. Mr. Harrison has filed a handwritten complaint against 

Ms. O’Keefe and the other defendants using the form complaint for 42 U.S.C. § 1983 

actions. Ms. Harrison’s complaint contains a long, run-on paragraph citing multiple 

statutes, without clearly stating the factual allegations upon which he relies or 
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clearly delineating separate causes of action against Ms. O’Keefe based upon each 

statute. 

Specifically, as to Ms. O’Keefe, his allegations paragraph provides: “Dr. Allison 

O’Keefe—employed at St. Catherine Hospital mental facility in Hammond, Indiana, 

assigned as doctor and who had a chance to evaluate plaintiff who denied him 

medical attention and medical care who was later x-rayed and was his hand was 

[sic] left neglected broken for the time period of the stay at St. Catherine.” (Docket 

No. 1, Pltf.’s Compl., p. 3.) 

Mr. Harrison then makes the following request for relief: “1. Nominal Damages, 

to jurisdiction over the defendants thruout [sic] Plaintiff complaint in the sum of 

$200. 2. Punitive Damages to conspiracy to cover up the illegal activity to plaintiff 

on disability act under Title VII forbids discriminatory asking for relief of one point 

five million dollars ($1,500,000.00). 3. Compensatory Damages- serious bodily 

injury and loss of use of left hand, serious disfigurement with extreme pain and 

suffering, police brutality and excessive force. I am asking for relief in the amount of 

fifteen million and for physical and emotional depression ($15,000,000.)” (Docket 

No. 1, Pltf.’s Compl., p. 3.) In his request for relief, Mr. Harrison makes no further 

allegations and provides no additional explanation of his claim against Ms. O’Keefe. 

Mr. Harrison’s Complaint should be dismissed with prejudice for failing to 

state a viable cause of action against Ms. O’Keefe. On its face, Mr. Harrison’s

Complaint violates the rules of procedure because it fails to clearly and succinctly 

lay out a cause of action against Defendant O’Keefe. More importantly, even if 
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Plaintiff would be granted leave to re-plead, the statutes and facts cited could not 

provide for a private cause of action against an independent health care provider. 

For these reasons, the Complaint should be dismissed with prejudice. 

II. STANDARD OF LAW 

Defendant has filed this motion under Fed. R. Civ. P. 12(b)(6) arguing that 

Plaintiff has failed to adequately plead a claim upon which relief can be granted, 

which would also include a failure by Plaintiff to meet the requirements of Federal 

Rules 8 and 10. In reviewing a motion to dismiss as to Rule 12(b)(6), the Court 

reviews all facts alleged in the complaint and any inferences reasonably drawn from 

it in the light most favorable to the Plaintiff. See, Marshall-Mosby v. Corporate 

Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A complaint fails to state a 

claim upon which relief can be granted pursuant to Rule 12(b)(6) when “it appears 

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 

In determining whether Mr. Harrison has made a claim upon which relief can be 

granted, the Court must also determine whether the Plaintiff has met the pleading 

requirements set forth in Rule 8. A complaint fails to comply with Rule 8 when the 

plaintiff has failed to plead “enough facts to state a claim to relief that is plausible 

on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is 

plausible on its face “when 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, 129 S. Ct. 1937, 1949 (2009). When reviewing a 
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complaint, the courts are obligated to accept factual allegations as true; however, 

some factual allegations may be so “sketchy or unbelievable” that they fail to 

provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th 

Cir. 2009). 

III. ARGUMENT

A. On Its Face, Plaintiff’s Complaint Violates the Federal Rules of 

Procedure.

Plaintiff’s complaint against Defendant O’Keefe should be dismissed due to 

numerous deficiencies throughout the Complaint. The most obvious deficiency is the 

format of the allegations and claims alleged against Defendant O’Keefe. Rule 8(a)(2) 

requires that the Plaintiff must provide “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Moreover, 

each allegation is to “be simple, concise, and direct.” Fed. R. Civ. Proc. 8(d)(1). 

Additionally, each paragraph must be “limited as far as practicable to a single set of 

circumstances.” Fed. R. Civ. Proc. 10(b). 

Plaintiff has failed to meet any of these requirements in providing a single, 

confusing, run-on paragraph complaint with references to multiple statutes and 

Defendants. And as to the portion of the paragraph directed to Ms. O’Keefe, 

Plaintiff fails to provide any assertion of improper action or the results of said 

action with the exception of stating that O’Keefe “denied him medical attention.”1

 

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 It appears most likely that Plaintiff is attempting to assert a claim for medical negligence 

against Ms. O’Keefe. However, if this is indeed an attempt at a malpractice action, Mr. 

Harrison’s Complaint makes no reference to any effort he has made to comply with the 

Indiana Medical Malpractice Act. See, e.g. Elliott v. Rush Mem'l Hosp., 928 N.E.2d 634, 
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Plaintiff’s Complaint is deficient to the point that Defendant O’Keefe cannot be 

expected to understand the allegations against her. Under Federal Rule 8, a 

complaint “must be presented with intelligibility sufficient for a court or opposing 

party to understand whether a valid claim is alleged and if so what it is.” Vicom, 

Inc. v. Harbridge Merchant Servs. Inc., 20 F.3d 771, 776 (7th Cir. 1994). Due to the 

lack of any clarity in Mr. Harrison’s allegations, Defendant O’Keefe cannot 

determine the claims at issue before the Court. On this basis alone, the Court 

should exercise its authority to dismiss the Complaint. 

B. Plaintiff cannot state a claim under 42 U.S.C. § 1983 because Ms. 

O’Keefe was not a state actor. 

With regard to Mr. Harrison’s citation to 42 U.S.C. § 1983, he cannot state a 

claim upon which relief can be granted where Ms. O’Keefe is not a state actor. When 

a plaintiff brings a § 1983 claim against a defendant who is not a government 

official or employee, the plaintiff must show that the defendant acted under the 

“color of state law.” Rodriguez v. Plymouth Ambulance Service, et al., 577 F.3d 816, 

822 (7th Cir. 2008). Thus, Mr. Harrison must provide allegations to sufficiently 

show that Ms. O’Keefe was acting under color of state law when providing medical 

 

638 (Ind. Ct. App. 2010) (“Ordinarily, a medical malpractice action in Indiana must be 

commenced by first filing a proposed complaint with the Department of Insurance and 

cannot proceed until the proposed complaint is reviewed by a Medical Review Panel. See

Ind.Code § 34–18–8–4.”); see also, Hines v. Elkhart Gen. Hosp., 603 F.2d 646, 647 (7th Cir. 

1979) (affirming the district court’s decision to dismiss plaintiffs’ medical malpractice 

claim—which invoked federal jurisdiction on the basis of diversity of citizenship—because 

plaintiffs failed to comply with the provisions of the Indiana Medical Malpractice Act and, 

therefore, the federal court lacked jurisdiction over the claim.).
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care to him. For a defendant to act under color of state law for § 1983 purposes 

means to “misuse [] power, possessed by virtue of state law and made possible only 

because the wrongdoer is clothed with the authority of state law.” Honaker v. 

Smith, 256 F.3d 477, 484 (7th Cir. 2001); see also, Estate of Rice ex rel. Rice v. Corr. 

Med. Servs., 596 F. Supp. 2d 1208, 1218 (N.D. Ind. 2009) (“Before a private party's conduct can 

be deemed to be state action, there generally must be a sufficiently close association between the 

state and the private conduct so that the action ‘may be fairly treated as that of the State itself.’”) 

(quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 228, 295 (2001)). 

Since Ms. O’Keefe completed any services for Mr. Harrison independently of the 

state, Ms. O’Keefe cannot be said to have acted under the color of state law. Here, 

there no allegations that would suggest Ms. O’Keefe acted in any way as a state 

actor, and as such, any claim under 42 U.S.C. § 1983 should be dismissed with 

prejudice. 

C. Mr. Harrison’s claims against Ms. O’Keefe appear to relate solely 

to medical care, and thus, do not provide any basis for claims of 

discrimination under 42 U.S.C. § 2000 or 20 USC § 1983. 

Plaintiff’s Complaint appears to allege claims against Ms. O’Keefe pursuant to 

42 U.S.C. 2000 and 20 U.S.C. § 1983. Notwithstanding the fact that there are 

insufficient allegations to know the basis for asserting these statutes against a 

private occupational therapy provider, Mr. Harrison cannot go forward under these 

statutes, as there is no claim of discrimination against Ms. O’Keefe. Both of these 

statutes relate to the failure to provide services or access to services due to some 

type of discriminatory animus. In this case, there only appear to be claims related to 
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the alleged denial of medical attention for unspecified reasons, and as such, any 

claim under these statutes should be dismissed with prejudice. 

III. CONCLUSION 

For all of the foregoing reasons, Defendant, Allison O’Keefe, requests that Gary 

Harrison’s Complaint be dismissed with prejudice. 

Respectfully submitted:

EICHHORN & EICHHORN, LLP

By: /s/ Carly A. Brandenburg

Attorney for Defendant, Allison O’Keefe

Carly A. Brandenburg, #27038-45

200 Russell Street

Hammond, IN 46320
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CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of March, 2015, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ ECF system, which sent 

notification of such filing to all counsel of records who are CM/ ECF participants. I 

have also mailed the foregoing to Plaintiff, Mr. Harrison, via certified U.S. mail, 

return receipt requested, with sufficient and proper postage affixed thereto.

/s/ Carly A. Brandenburg