1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION AT LAFAYETTE 

DARRELL LEE FERGUSON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 4:13-cv-061 JD 

 ) 

STATE OF INDIANA, et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

This case arises from an allegedly unlawful arrest. Darrell Lee Ferguson, a pro se

plaintiff, filed a complaint alleging claims under 42 U.S.C. § 1983 and a motion for leave to 

proceed in forma pauperis. [DE 1, 2.] The lawsuit was originally filed in the Southern District 

of Indiana. That court granted the IFP petition [DE 4] and then transferred the case to the 

Northern District of Indiana [DE 5].1

Mr. Ferguson named three defendants in his complaint. One of them, Don Hoftetler, has 

not been served. (His summons was returned unexecuted.) [DE 17.] The defendants who have 

appeared—Tim Kendall (a detective with the Indiana State Police) and the State of Indiana—

have moved to dismiss the claims against them. [DE 21.] Those Defendants filed the required 

pro se notice to Mr. Ferguson of their motion to dismiss. [DE 26.] 

Mr. Ferguson has filed a number of documents since the filing of the motion to dismiss, 

many of which could be construed as a response to the motion to dismiss.2

 [DE 23, 25, 27, 28, 

29, 30, 34, 35, 37, 40.] Trooper Kendall and the State filed a reply in support of their motion to 

 

1

 Mr. Ferguson has another pending case before the undersigned. Ferguson v. James, 4:13-cv-50. The lawsuits 

share some common facts, though the other lawsuit is brought against different defendants and challenges actions 

related to Indiana state court child custody and support proceedings. 

2

 Almost all of the filings carry the case numbers of both of Mr. Ferguson’s currently pending cases, and so contain 

some facts not relevant to the claims in this particular lawsuit. 
2 

dismiss. [DE 31.] The motion is ripe for decision. For the reasons stated below, Defendants’ 

motion to dismiss is GRANTED. [DE 21.]

I. Factual Background 

Mr. Ferguson’s claims arise out of an arrest that occurred on May 9, 2013. The 

allegations are, at times, difficult to follow and sparse on facts. However, the Court has 

reviewed the complaint, as well as Mr. Ferguson’s later filings, to attempt to determine what 

exactly Mr. Ferguson alleges that the Defendants did. See Geinosky v. City of Chicago, 675 F.3d 

743, 745 n.1 (7th Cir. 2012) (plaintiff may elaborate on factual allegations in response to a Rule 

12(b)(6) motion, so long as the new facts are consistent with the pleadings). 

On May 9, police went to the home of Mr. Ferguson’s former wife, who is also the 

mother of his son. [DE 25 at 1.] Police were informed that Mr. Ferguson was fishing with his 

son. [Id.] They were also informed that there was an order from an Indiana state court which 

barred Mr. Ferguson from having contact with his son. [Id.] Later that day, police questioned a 

person with whom Mr. Ferguson lives, as well as Mr. Ferguson’s son. [Id. at 2.] Mr. Ferguson 

alleges that each of the people with whom police spoke told police that Mr. Ferguson was sober, 

non-violent, and did not have any weapons. [Id. at 1–2.] Also, at some point (the exact timing is 

not clear), Don Hoftetler,3 an attorney in the office of the Indiana Attorney General, contacted 

police to inform them that Mr. Ferguson called Mr. Hoftetler and threatened to kill people. [DE 

1 at 4.] Mr. Ferguson alleges that such a statement was a lie. [DE 25 at 3.] 

On May 9, Mr. Ferguson walked out his door and was surrounded by police officers. 

[DE 1 at 4; DE 25 at 1.] The police pointed guns at Mr. Ferguson and took him into custody. 

[Id.] Mr. Ferguson was interviewed by Trooper Kendall and requested a lawyer. [DE 1 at 4.] It 

 

3

 This may be a spelling error on the part of Mr. Ferguson. An internet search indicates that there is a Don Hostelter 

who was at some point employed by the Indiana Attorney General, but who appears to no longer work in that office. 

Consistent with the complaint, this opinion refers to him as “Mr. Hoftetler.” 
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is not clear from the factual allegations whether or not Trooper Kendall was one of the arresting 

officers. 

Mr. Ferguson claims that the arrest was done without probable cause. [DE 25 at 3–4.] 

However, Mr. Ferguson also alleges that on May 11, 2013, he appeared before a judge who 

found probable cause. [DE 25 at 2.] Mr. Ferguson alleges that he was held for five days and that 

no charges were ever filed. [DE 1 at 3.] 

Based on these allegations, Mr. Ferguson seeks monetary damages of $500,000. [DE 1 at 

6.] In one filing, Mr. Ferguson referenced the standards for granting injunctive relief and a 

temporary restraining order [DE 27 at 1]; however, he has not requested any injunctive relief in 

his complaint, has never moved for a temporary restraining order, and the Court cannot locate 

any injunctive relief requested in any filing. 

II. Standard of Review 

The Defendants who have appeared move to dismiss the claims against them under Rule 

12(b)(6) of the Federal Rules of Civil Procedure. In ruling on this motion, the Court is cognizant 

that a “document filed pro se is to be liberally construed, and a pro se complaint, however 

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). 

Rule 12(b)(6) authorizes dismissal of a complaint when it fails to set forth a claim upon 

which relief can be granted. When considering a Rule 12(b)(6) motion to dismiss, the Court 

must decide whether the complaint satisfies the “notice-pleading” standard. Indep. Trust Corp. 

v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). The notice-pleading standard 

requires that a complaint provide a “short and plain statement of the claim showing that the 

pleader is entitled to relief,” sufficient to provide “fair notice” of the claim and its basis. Id. 
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(citing Fed. R. Civ. P. 8(a)(2)); Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011) (internal 

citations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. 

R. Civ. P. 8(a)(2)). In determining the sufficiency of a claim, the Court construes the complaint 

in the light most favorable to the nonmoving party, accepts all well-pleaded facts as true, and 

draws all inferences in the nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 

1143, 1146 (7th Cir. 2010) (internal citations omitted). 

 The Supreme Court has adopted a two-pronged approach when considering a Rule 

12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). First, pleadings 

consisting of no more than mere conclusions are not entitled to the assumption of truth. Id. This 

includes legal conclusions couched as factual allegations, as well as “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing

Twombly, 550 U.S. at 555). Second, if well-pleaded factual allegations are present in the 

complaint, courts should “assume their veracity and then determine whether they plausibly give 

rise to an entitlement to relief.” Id. at 679. 

 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 

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

Iqbal, 556 U.S. at 678. The complaint “must actually suggest that the plaintiff has a right to 

relief, by providing allegations that raise a right to relief above the speculative level.” Maddox, 

655 F.3d at 718 (internal citations omitted). A plaintiff’s claim, however, need only be plausible, 

not probable. Indep. Trust Corp., 665 F.3d at 934 (quoting Twombly, 550 U.S. at 556). “[A] 

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those 

facts is improbable, and that a recovery is very remote and unlikely.” Id. In order to satisfy the 

plausibility standard, a plaintiff’s complaint must “supply enough facts to raise a reasonable 
5 

expectation that discovery will yield evidence supporting the plaintiff’s allegations.” Twombly, 

550 U.S. at 556. Determining whether a complaint states a plausible claim for relief is “a 

context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted). Factual allegations, 

however, “that are merely consistent with a defendant’s liability . . . stop[] short of the line 

between possibility and plausibility of entitlement to relief.” Id. at 678. 

III. Discussion

Mr. Ferguson brings his claims under 42 U.S.C. § 1983. Section 1983 gives federal 

courts the jurisdiction to hear lawsuits that allege violations of constitutional rights by persons 

acting under color of state law. However, there are limits to a court’s ability to adjudicate 

actions under section 1983. “Section 1983 only permits an individual to sue a ‘person’ who 

deprives that individual of his or her federally-guaranteed rights under color of state law.” 

Snyder v. King, 745 F.3d 242, 246 (7th Cir. 2014). Additionally, certain defendants are immune 

from claims for monetary liability. 

The State and Trooper Kendall raise such defenses to Mr. Ferguson’s claims. Each of the 

Defendants is addressed, in turn, below. 

A. The State of Indiana

The State raises several arguments in support of dismissing the claims against it. [DE 22 

at 2–6.] However, one argument is dispositive of any and all monetary claims against the State 

(which is the only type of claim that Mr. Ferguson brings), so the Court need only reach that 

argument. 

Specifically, the State correctly argues that it is not a “person” under section 1983 for the 

purposes of a claim for damages. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) 
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(“We hold that neither a State nor its officials acting in their official capacities are ‘persons’ 

under § 1983.”); Johnson v. Supreme Court of Ill., 165 F.3d 1140 (7th Cir. 1999) (citing Will). 

Mr. Ferguson alleges no other jurisdictional basis for his monetary claim against the State, and 

the Court cannot identify any other potential basis that could exist. Because this argument is 

dispositive, the Court need not consider the State’s other arguments. See Mercado v. Dart, 604 

F.3d 360, 361–62 (7th Cir. 2010) (statutory rule that a state is not a “person” under section 1983 

“makes it unnecessary and inappropriate to consider what limits the eleventh amendment would 

create.”) 

No matter the allegations against the State, it cannot be sued under section 1983 for 

monetary damages. Accordingly, the claim against the State of Indiana is DISMISSED WITH 

PREJUDICE. 

B. Trooper Kendall

With respect to the claims against Trooper Kendall, it is unclear whether Mr. Ferguson is 

suing him in his official or personal capacity. Because of Mr. Ferguson’s pro se status, the Court 

liberally construes the complaint to include both official and personal claims. However, both 

types of claims have legal flaws that require the Court to dismiss them at this time. 

With respect to any claim against Trooper Kendall in his official capacity, the claim 

suffers from the same deficiency as the claim against the State. Like the State, a state official 

acting in his official capacity is not a “person” under section 1983. Will v. Michigan Dept. of 

State Police, 491 U.S. 58, 71 (1989) (“Obviously, state officials literally are persons. But a suit 

against a state official in his or her official capacity is not a suit against the official but rather is a 

suit against the official’s office. As such, it is no different from a suit against the State itself.” 

(citations omitted)). 
7 

“Whether a particular official is the legal equivalent of the State itself is a question of that 

State’s law.” Garcia v. City of Chicago, 24 F.3d 966, 969 (7th Cir. 1994). The Indiana State 

Police is a unit of the government of Indiana. Endres v. Indiana State Police, 349 F.3d 922, 927 

(7th Cir. 2003). Employees of the State Police, like Trooper Kendall, are thereby state officials 

and not subject to suit in their official capacity under section 1983. Estate of O’Bryan v. Town of 

Sellersburg, No. NA 02-238-CH/H, 2003 WL 21852320, at *2 (S.D. Ind. July 2, 2003). 

Accordingly, the claim asserted against Trooper Kendall in his official capacity is DISMISSED 

WITH PREJUDICE. 

Turning to the claim against Trooper Kendall in his individual capacity, that claim fails 

because the allegations in Mr. Ferguson’s complaint are insufficient to support a claim of any 

deprivation of a constitutional right. The Court believes the only potential way to construe Mr. 

Ferguson’s claim against Trooper Kendall is as one for false arrest or imprisonment. However, 

there is no allegation or suggestion in Mr. Ferguson’s complaint that Trooper Kendall had any 

role in Mr. Ferguson’s arrest. Because Mr. Ferguson’s complaint does not allege sufficient facts 

against Trooper Kendall to state a plausible claim, dismissal on that basis is justified. 

Additionally, even assuming for the sake of argument that Trooper Kendall did take some 

part in Mr. Ferguson’s detention, probable cause existed. “Police officers have probable cause to 

arrest an individual when ‘the facts and circumstances within their knowledge and of which they 

have reasonably trustworthy information are sufficient to warrant a prudent person in believing 

that the suspect had committed’ an offense.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th 

Cir. 2006) (quoting Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998)). “[A]s long as a 

reasonably credible witness or victim informs the police that someone has committed a crime, or 

is committing, a crime, the officers have probable cause.” Matthews v. City of East St. Louis, 
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675 F.3d 703, 706–07 (7th Cir. 2012) (quoting Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 

1999)). When the facts before the Court on a motion to dismiss establish that the arresting 

officers had probable cause, granting a motion to dismiss a section 1983 claim on that basis is 

proper. Williamson v. Curran, 714 F.3d 432, 443 (7th Cir. 2013). 

Here, the complaint alleges that an Assistant Attorney General called police and informed 

them that Mr. Ferguson had threatened to kill people. [DE 1 at 4.] Trooper Kendall argues that, 

if they were made, such threats would violate Indiana state law. Ind. Code § 35-45-2-1(b)(1)(A) 

(intimidation is a Class D felony, if “the threat is to commit a forcible felony”). Trooper Kendall 

does not address that statute’s requirement that the person communicating the threat has an intent 

“that the other person engage in conduct against the other person’s will” or “that the other person 

be placed in fear of retaliation for a prior lawful act,” § 35-45-2-1(a). However, the Court 

determines that the facts pleaded by Mr. Ferguson establish such intent, where Mr. Ferguson’s 

alleged call was to an official within the Indiana Attorney General’s Office, during a time in 

which Mr. Ferguson had ongoing child custody disputes with which he exhibited substantial 

frustration. Moreover, the facts pleaded by Mr. Ferguson establish that officers had probable 

cause to arrest him for violation of a no-contact order, which was shown to the officers by Mr. 

Ferguson’s former wife. Abbott v. Sangamon Cnty., 705 F.3d 706, 715 (7th Cir. 2013) (“an

arrest can be supported by probable cause that the arrestee committed any crime, regardless of 

the officer’s belief as to which crime was at issue.”). Additionally, the Court notes that a judge 

found probable cause for Mr. Ferguson’s arrest and detention. [DE 25 at 2.] 

Because the complaint does not state sufficient facts to state a plausible claim for relief 

and—based on those facts that were alleged—probable cause existed for Mr. Ferguson’s arrest, 
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the claim against Trooper Kendall in his individual capacity is DISMISSED WITHOUT 

PREJUDICE.

 IV. Conclusion 

The allegations raised in Mr. Ferguson’s complaint fail to state a claim on which relief 

can be granted. Accordingly, the Motion to Dismiss [DE 21] is GRANTED. Mr. Ferguson’s 

claims against the State of Indiana and Tim Kendall (in his official capacity) are DISMISSED 

WITH PREJUDICE. Mr. Ferguson’s claim against Tim Kendall (in his individual capacity) is 

DISMISSED WITHOUT PREJUDICE. The Court also notes that one of Mr. Ferguson’s 

filings was titled “Objection to Any Dismissal and Request for Hearing if Dismissal is Granted.” 

[DE 30.] Because he has failed to demonstrate any cause for a hearing, the request for a hearing 

is DENIED. 

SO ORDERED. 

ENTERED: July 31, 2014 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court