UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

DAVID MCDOWELL, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Cause No. 2:14-cv-466 

 ) 

CARROLL COUNTY, IN, and PATRICK ) 

CLAWSON, in his personal and official ) 

capacities, ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 This matter is before the court on the Motion to Strike Affirmative Defenses [DE 11] 

filed by the plaintiff, David McDowell, on March 13, 2015. For the following reasons, the 

motion is GRANTED. 

Background 

 On December 24, 2014, the plaintiff, David McDowell, filed his Complaint, which 

alleged violations of the First and Fourteenth Amendments to the U.S. Constitution and sought 

relief under the Civil Rights Act of 1871, 42 U.S.C. § 1983. On January 1, 2008, McDowell was 

hired as the Director of the Carroll County Emergency Management Agency (EMA). McDowell 

has alleged that the EMA was an agency established under the laws of the State of Indiana. 

 McDowell has claimed that he signed one year employment contracts to remain the 

Director of the EMA in 2009, 2010, 2011, and 2012, and that the contracts required thirty days 

written notice of termination. McDowell’s contract was not renewed for 2013. He has alleged 

that his termination deprived him of a property interest without due process rights under the 

Fourteenth Amendment. Additionally, he has claimed that the defendant, Patrick Clawson, made 
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false, stigmatizing, and inflammatory public comments that have prevented him from pursuing 

his chosen occupation and have deprived him of a liberty interest under the Fourteenth 

Amendment. Last, he has argued that the defendants terminated his contract because of his 

political affiliation in violation of the First Amendment. 

 In their Answer, the defendants pled nine affirmative defenses. McDowell has requested 

the court to strike the third, fourth, fifth, seventh, eighth, and ninth affirmative defenses. The 

affirmative defenses are listed as follows: 

3. The allegations in Plaintiff’s Complaint against these 

Defendants fail to state a claim upon which relief may be granted. 

4. To the extent that Plaintiff seeks to hold the individual 

defendant liable under Indiana State Law, he is generally immune 

for losses which occur within the scope and course of his 

employment under the Indiana Tort Claims Act, I.C. § 34-13-3-5. 

5. To the extent that Plaintiff seeks to hold the individual 

defendant liable under Indiana State Law, he is generally immune 

for a loss which results from the performance of a discretionary 

task under I.C. § 34-13-3-3(7). 

7. To the extent that Plaintiff’s Complaint seeks punitive damages 

against Defendants, these claims are barred under the Indiana Tort 

Claims Act as punitive damages may not be recovered against 

Defendants, because at all relevant times Patrick Clawson was 

acting within the scope and course of his employment as an 

employee of a governmental entity. I.C. § 34-13-3-4(b). 

8. These Defendants are otherwise immune under the Indiana Tort 

Claims Act, specifically I.C. § 34-13-3-3. 

9. These Defendants reserve the right to plead additional 

affirmative defenses as they become known to them. 

The defendants did not respond to this motion. 

Discussion 

 Federal Rule of Civil Procedure 12(f) states that “the court may strike from a pleading 

any . . . redundant, immaterial, impertinent, or scandalous matter.” Motions to strike generally 

are disfavored, although they may be granted if they remove unnecessary clutter from a case and 

expedite matters, rather than delay them. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 
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F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade School, 552 F. Supp. 2d 816, 825 

(C.D. Ill. 2008). The decision whether to strike material is within the discretion of the court. 

Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). “Affirmative 

defenses will be stricken only when they are insufficient on the face of the pleadings.” Heller, 

883 F.3d at 1294. 

 First, McDowell has requested the court to strike the defendants’ third affirmative 

defense. The third affirmative defense alleged that McDowell’s Complaint failed to state a claim 

upon which relief could be granted. “Failure to state a claim” is a recognized defense, but it is 

not an affirmative defense because it does not assume that the allegations of the Complaint are 

true and then articulate a separate reason why the defendant is not liable. Cottle v. Falcon 

Holdings Mgmt., LLC, 2012 WL 266968, at *3 (N.D. Ind. Jan. 30, 2012). The defendants did 

not explain how McDowell failed to state a claim, but rather, provided an insufficient bare bone 

legal assertion. See Cottle, 2012 WL 266968 at *3 (striking a “failure to state a claim” defense 

because the defendant did not provide any allegations to show how the plaintiff failed to state a 

claim). Therefore, the court STRIKES the defendants’ third affirmative defense. 

 Next, McDowell has requested the court to strike the defendants’ fourth, fifth, seventh, 

and eighth affirmative defenses. Each defense is based on the Indiana Tort Claims Act. 

Indiana’s Tort Claims Act bars claims against political subdivisions unless notice is filed with 

the governing body of that political subdivision within 180 days of the loss. Estate of Connor v. 

Ambrose, 990 F. Supp. 606, 617 (N.D. Ind. 1997); IND. CODE § 34-13-3-8. McDowell has 

brought a Section 1983 action that is based on violations of his due process rights under the First 

and Fourteenth Amendments. Indiana’s Tort Claims Act, a notice-of-claim statute, does not 

apply to federal Section 1983 actions. Estate of Connor, 990 F. Supp. at 617; see Felder v. 
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Casey, 487 U.S. 131, 134, 108 S. Ct. 2302, 2304–05, 101 L. Ed. 2d 123 (1988). “This is because 

§ 1983 was intended to provide a federal remedy, independently enforceable whether or not it 

duplicates a parallel state remedy.” Craig v. Witucki, 624 F. Supp. 558, 559 (N.D. Ind. 1986) 

(quoting Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985)). Therefore, 

the court STRIKES the fourth, fifth, seventh, and eighth affirmative defenses because they do 

not apply to McDowell’s federal Section 1983 claims. 

 Last, McDowell has requested the court to strike the defendants’ ninth affirmative 

defense. The ninth affirmative defense reserved the right to plead additional affirmative 

defenses. A reservation to plead additional affirmative defenses is not an affirmative defense. 

Moreover, the parties may amend their pleadings pursuant to Federal Rule of Civil Procedure 15. 

Therefore, the court STRIKES the ninth affirmative defense because it is not an affirmative 

defense. 

 For the foregoing reasons, the Motion to Strike Affirmative Defenses [DE 11] is 

GRANTED. 

 ENTERED this 7th day of May, 2015. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge