UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LORENA E. BOSTIC, )

 Plaintiff, )

 )

 v. ) CAUSE NO.: 2:15-CV-429-PRC

)

SALVADOR VASQUEZ, CLARENCE D. )

MURRAY, DIANE ROSS BOSWELL, THOMAS )

P. STEFANIAK, JR., SAMUEL L. CAPPAS, )

JAN PARSONS, and MIROSLAV RADICESKI, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on the State Court Judges’ Motion for Judgment on the

Pleadings [DE 91], filed by Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross

Boswell, Thomas P. Stefaniak, Jr., and Samual L. Cappas (collectively “Superior Court Judge

Defendants”) on January 22, 2018. Plaintiff Lorena E. Bostic filed a response on February 6, 2018,

and Defendants filed a reply on February 13, 2018.

PROCEDURAL BACKGROUND

Plaintiff Lorena E. Bostic filed her Second Amended Complaint on December 15, 2017,

alleging that she was sexually assaulted in the Lake County Government Center by Defendant

Miroslav Radiceski while he was serving as her probation officer. Bostic seeks remedies for the

alleged “deprivation of constitutionally protected rights by Defendants, individually, which result

from the commission of multiple non-consensual sexual and non-sexual acts committed upon

Plaintiff, Lorena Bostic.” (ECF 81, p. 1). Count I is brought against the Superior Court Judge

Defendants under 42 U.S.C. § 1983 for the alleged violation of Ms. Bostic’s rights under the Fourth,

Fifth, and Fourteenth Amendments to the United States Constitution. Id. at ¶ 45. The claim in Count

II for willful and wanton misconduct is not brought against the Superior Court Judge Defendants.
The Second Amended Complaint includes the following relevant “General Allegations”:

4. At all relevant times the individual Judges of the Superior Court of Lake

County, Criminal Division, had a duty to the public at large, and more

specifically to Lorena E. Bostic to, inter alia, monitor and provide adequate

security for all public areas of the Lake County Government Center, 2293

North Main Street, Crown Point, Indiana 46307, including, but not limited

to the public stairwells, through the Lake County, Indiana, Board of

Commissioners as the executive officer of Lake County, Indiana.

5. At all relevant times the individual Judges of the Superior Court of Lake

County, Criminal Division, acted with deliberate or reckless disregard for

the Constitutional Rights of the Plaintiff and failed to monitor and provide

adequate security for the public stairwells of the Lake County Government

Center, Courts Building, despite their knowledge that Defendant Miroslav

Radiceski, as a Probation Officer of the Superior Court of Lake County,

Criminal Division, had previously sexually assaulted a felony division

probationer in a public stairwell of the Lake County Government Center.

. . . 

11. The Judges of the Superior Court of Lake County, Criminal Division,

oversee, administer, supervise and direct the work force of the Probation

Department of the Superior Court of Lake County, Criminal Division.

12. Probation Officers of the felony Probation Department in their position of

authority and trust have wide latitude in setting the terms and conditions of

probation and reporting compliance, all of which has a direct effect upon the

liberty of probationers.

. . . 

14. At all relevant times Defendant Miroslav Radiceski was duly employed as a

felony Probation Officer by the Superior Court of Lake County, Criminal

Division.

15. Defendant individual Judges of the Superior Court of Lake County, Criminal

Division; the Director of the felony Probation Department of the Superior

Court of Lake County, Criminal Division; and Miroslav Radiceski, felony

Probation Officer had a duty not to interfere with or deprive the Plaintiff of

her Constitutional Rights.

16. At all times relevant to this SECOND AMENDED COMPLAINT, Defendant

Judges of the Superior Court of Lake County, Criminal Division, and Jan

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Parsons, Director and Chief Probation Officer of the felony Probation

Department, were aware of problems and investigations and past incidents

involving misconduct by Miroslav Radiceski in his relations with and

supervision of probationers that deprived them of their constitutionally

protected rights.

17. Defendant Judges of the Superior Court of Lake County, Criminal Division,

and Jan Parsons, Director and Chief Probation Officer of the felony

Probation Department, notwithstanding their knowledge of misconduct by

Miroslav Radiceski which had occurred in the past acted with deliberate or

reckless disregard to the Constitutional Rights of the Plaintiff and consented

to such deprivation of rights.

(ECF 81) (emphasis added).

In relevant part, Count I alleges:

18. On or about March 26th, 2013, the Plaintiff, Lorena E. Bostic, was a

probationer, having been placed on probation on October 31st, 2011, by the

Honorable Clarence D. Murray, Judge of the Superior Court of Lake County,

Criminal Division, Room Two, in Case No.: 45G02-0911-FC-00139.

19. Commencing on or about March 26th, 2013, Miroslav Radiceski was the

felony Probation Officer assigned to Ms. Bostic and under the guise of

needing to meet alone with Ms. Bostic he commenced a course of improper

conduct which included repeated acts of non-consensual, forcible, sexual and

non-sexual behavior and deprivations of her liberty which continued over the

ensuing months at various times and at locations of Probation Department

offices until it culminated on November 26th, 2013, with non-consensual

sexual conduct.

. . . 

21. On March 26th, 2013, Ms. Bostic rebuffed such misconduct whereupon

Miroslav Radiceski, deliberately and maliciously retaliated the next day by

filing a Petition To Revoke Probation, which remained pending until January

8th, 2014.

22. On November 26th, 2013, Miroslav Radiceski engaged in improper,

non-consensual, forcible, sexual and non-sexual misconduct against the

Plaintiff, Lorena E. Bostic, on the rarely utilized, dimly lighted alcove off the

third “dead end” level or roof access level landing of the enclosed, east

stairwell of the Courts Building of the Lake County Government Center.

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23. Immediately after court proceedings, rather than lead Ms. Bostic directly to

the Probation Department, Miroslav Radiceski directed her to the second

floor east hallway of the Courts Building, which Ms. Bostic had never before

used, opened the stairwell door and instructed Ms. Bostic to go “up” to his

“office.”

. . . 

25. On November 26th, 2013, at the direction of Miroslav Radiceski, Ms. Bostic

found herself confined and alone on the rarely utilized, dimly lighted alcove

off the third “dead end” level or roof access level landing of the east stairwell

with Defendant Radiceski, who thereupon improperly compelled her to

engage in non-consensual, forcible sexual conduct.

26. Thereafter Miroslav Radiceski falsely reported that such incidents had not

occurred or that they constituted sexual and non-sexual advances by Ms.

Bostic toward Radiceski.

. . . 

28. At all relevant times the Judges of the Superior Court of Lake County,

Criminal Division, supervised, administered and directed the work force of

the felony Probation Department of the Superior Court of Lake County,

Criminal Division.

. . . 

31. In accordance with Ind. Code § 34-13-3-8 and in compliance with Ind. Code

§ 34-13-3-10, the Plaintiff on April 17th, 2014, inter alia, caused a Notice of

Tort Claim to be timely forwarded to Jan Parsons and the other Defendants,

who were duly served on or about April 21st, 2014.

32. The only response received to such service was the May 14th, 2014, notice

from the Indiana Political Subdivision Risk Management Fund that Lake

County, Indiana, did not participate as a member of such Fund.

33. Notwithstanding service of the Notice of Tort Claim upon the Defendants

and the requirements imposed by Ind. Code §34-13-3-11, the Defendants

never notified the Plaintiff of their approval or denial of her claims.

34. On October 30th, 2014, Ms. Bostic appeared at the offices of the Porter

County Adult Probation Department, as had been routinely scheduled, was

advised that Lake County was transferring her probation back to Crown Point

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for unknown reasons and was instructed to report to Jan Parsons at the Lake

County Probation Department the following morning at 11:30 a.m.

35. On October 30th, 2014, the presiding Judge of the Superior Court of Lake

County, Criminal Division, Room Two, with deliberate or reckless disregard

for the Plaintiff’s Constitutional Rights, entered an ex parte Order extending

Ms. Bostic’s probation for an additional period of one (1) year, all of which

was devoid of due process and without notice to Lorena E. Bostic or her

counsel of record and was deliberate or in reckless disregard of Ms. Bostic’s

Constitutional Rights.

36. On the morning of October 31st, 2014, Lorena E. Bostic appeared at the

offices of the felony Probation Department of the Superior Court of Lake

County, Criminal Division, where she suffered an observable physical and

emotional reaction as she passed through the felony Probation Department

offices.

. . . 

44. The Defendant Judges of the Superior Court of Lake County, Criminal

Division; and their employees and agents acted with deliberate or reckless

disregard to the Constitutional Rights of Lorena E. Bostic by doing the

following:

a. Hiring, retaining and entrusting, in a position of authority and trust,

the supervision of probationers to an employee whom they knew to

be of such poor character, temperament and disposition as to be

totally unfit to be hired, retained and placed in a position of authority,

trust and supervision of any probationer;

b. Failing to adopt, incorporate and enforce such rules, regulations,

policies and procedures for the administration and management of the

Lake County felony Probation Department as was constitutionally

required to protect the safety, health and well being of Lorena E.

Bostic and other probationers;

c. Failing to adopt, incorporate and enforce such rules, regulations,

policies and procedures for the administration and management of the

Lake County felony Probation Department as would provide

constitutionally required guidance, supervision and direction to

Lorena E. Bostic and other probationers;

d. Failing to administer, manage, review and supervise the Lake County

felony Probation Department and the conduct and work performance

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of its employees to ensure constitutionally appropriate probationer

supervision, guidance and direction;

e. Failing to take proper precautions and exercise due care for the

Constitutional Rights of Lorena E. Bostic when visiting the offices of

the felony Probation Department at any of its facilities; and

f. Permitting Lorena E. Bostic to be deprived of her Constitutional

Rights by the misconduct of Miroslav Radiceski, who was a person

upon whom Ms. Bostic was expected to trust and rely upon for

guidance, supervision and direction during the period of her

probation.

45. At all times relevant hereto [the Superior Court Judge Defendants; Jan

Parsons; and Miroslav Radiceski] deprived Plaintiff, Lorena E. Bostic, of her

Fourth, Fifth and Fourteenth Amendment rights, privileges and immunities

secured by the Constitution and well-settled laws of the United States and the

State of Indiana, including her right to safety and to be free from predation

by employees of such Probation Department, and as a direct and proximate

result thereof she was physically, emotionally, mentally and sexually injured

and will continue to suffer severe emotional distress and mental injury.

(ECF 81).

The Superior Court Defendants filed an Answer on January 2, 2018. 

ANALYSIS

In the instant motion, the Superior Court Judge Defendants seek judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c) on Plaintiff’s § 1983 claim against them, arguing

that they were not personally involved in the alleged constitutional violations and that they are

entitled to absolute judicial immunity. Rule 12(c) provides that a party may move for judgment on

the pleadings after the complaint and answer have been filed. See Fed. R. Civ. P. 12(c); Supreme

Laundry Serv., LLC v. Hartford Cas. Ins. Co., 521 F.3d 743, 746 (7th Cir. 2008). Rule 12(c) motions

are evaluated under the same standard as a motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6), which tests the sufficiency of the complaint and not the merits of the suit. See Gibson v.

City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). 

In ruling on such a motion, the Court accepts as true all of the well-pleaded facts alleged by

the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th

Cir. 2008). To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must

first comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the

pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of

what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).

Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see

also Tamayo, 526 F.3d at 1082. The Supreme Court explained that the “plaintiff’s obligation to

provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d

574, 581 (7th Cir. 2009). Determining whether a complaint states a plausible claim for relief requires

the Court to draw on its judicial experience and common sense. Iqbal, 556 U.S. at 679.

First, the Superior Court Judge Defendants argue that they did not have the requisite personal

involvement in any of the alleged constitutional violations. To state a claim under § 1983, a plaintiff

must allege that a government official, acting under color of state law, deprived her of a right

secured by the Constitution or laws of the United States. Heyde v. Pittenger, 633 F.3d 512, 516 (7th

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Cir. 2011) (quoting Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir.

2007)). Section 1983 “liability is premised on the wrongdoer’s personal responsibility.” Kuhn v.

Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). “‘An individual cannot be held liable in a § 1983

action unless he caused or participated in an alleged constitutional deprivation.’” Id. at 556 (quoting

Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); citing Grieveson v. Anderson, 538 F.3d

763, 778 (7th Cir. 2008); Townsend v. Fuchs, 522 F.3d 765, 775 (7th Cir. 2008)). Thus, the doctrine

of respondeat superior does not apply to actions brought under § 1983. Doyle v. Camelot Care Ctrs.,

Inc., 305 F.3d 603, 614 (7th Cir. 2002).

As a result, supervisory officials are liable under § 1983 only if they had “personal

involvement in the constitutional deprivation, essentially directing or consenting to the challenged

conduct.” Id. at 614-15; see also Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1039 (7th Cir.

2003). It is not enough that the supervisory official acted negligently in failing to detect and prevent

a subordinate’s misconduct. Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997). However,

the personal responsibility requirement of § 1983 can be satisfied if the supervisory official “‘acts

or fails to act with a deliberate or reckless disregard of the plaintiff’s constitutional rights.’” Miller

v. Smith, 220 F.3d 491, 495 (7th Cir. 2000) (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.

1982)); see also Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). To satisfy the

personal responsibility requirement, the supervisor must “know about the conduct and facilitate it,

approve it, condone it, or turn a blind eye for fear of what they might see[.]” Matthews v. City of

East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (quoting Jones v. City of Chicago, 856 F.2d 985,

992-93 (7th Cir. 1988)); see also Chavez, 251 F.3d at 651 (quoting Jones, 856 F.2d at 992-93).

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In this case, Ms. Bostic alleges that the Judges had “knowledge that Defendant Miroslav

Radiceski, as a Probation Officer of the Superior Court of Lake County, Criminal Division, had

previously sexually assaulted a felony division probationer in a public stairwell of the Lake County

Government Center.” (ECF 81, ¶ 5). Ms. Bostic further alleges that the Judges “were aware of

problems and investigations and past incidents involving misconduct by Miroslav Radiceski in his

relations with and supervision of probationers that deprived them of their constitutionally protected

rights.” Id. at ¶ 16. And, Ms. Bostic alleges that the Judges “oversee, administer, supervise and

direct the work force of the Probation Department of the Superior Court of Lake County, Criminal

Division.” Id. at ¶ 11. Thus, the Judges allegedly possessed the power, and presumably the

opportunity, to prevent Radiceski from continuing to engage in similar misconduct, as allegedly

occurred with Ms. Bostic.

These facts support Ms. Bostic’s allegation that the Judges acted with deliberate or reckless

disregard for her constitutional rights by “turning a blind eye” to Radiceski’s past similar behavior,

resulting in a foreseeable violation of Ms. Bostic’s constitutional rights. At this stage of the

litigation, the Court finds that Ms. Bostic has alleged in her Second Amended Complaint sufficient

facts of personal involvement to state a claim against the Superior Court Judge Defendants. See

Powell v. City of Chicago, No. 17-CV-5156, 2018 WL 1211576, at *9 (N.D. Ill. Mar. 8, 2018)

(finding that the plaintiff stated a claim against the arresting police officer’s supervisors under §

1983 based on the alleged facts that the supervisors had received prior civilian complaints and, thus,

knew that the arresting officers had previously engaged in “fabricating evidence and manufacturing

false charges against persons at the Ida B. Wells Homes”).

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Second, the Superior Court Judge Defendants assert in the motion that they are entitled to

absolute judicial immunity because they were acting in their official capacities. The Judges do not

pursue immunity in their reply brief. A judge is immune from liability—even if the action taken was

done in error, maliciously, or in the excess of authority—unless the judge acted in the clear absence

of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The doctrine confers complete

immunity from suit, not just a mere defense to liability and is applicable to claims brought under §

1983. Dawson v. Newman, 419 F.3d 656, 661 (7th Cir. 2005) (quoting Dellenbach v. Letsinger, 889

F.2d 755, 758 (7th Cir. 1989)). Absolute immunity, however, applies only to judicial acts and does

not protect the judge from acts that are “ministerial or administrative” in nature. Id. (quoting Lowe

v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985)); see also Mireles v. Waco, 502 U.S. 9, 11-12 (1991)

(citing Forrester v. White, 484 U.S. 219, 227-229 (1988)).

This determination is a functional one that considers the nature of the governmental function

performed. Dellenbach, 889 F.2d at 759 (citing Forrester, 484 U.S. at 224). Indiana law adopts the

federal approach to judicial immunity with respect to administrative actions. Ray v. Medlock, No.

4:11-CV-62, 2012 WL 5499630, at *2 (S.D. Ind. Nov. 13, 2012) (citing Mendenhall v .City of

Indianapolis, 717 N.E.2d 1218, 1226 (Ind. Ct. App. 1999)). “The official seeking absolute immunity

bears the burden of showing that such immunity is justified for the function in question.” Burns v.

Reed, 500 U.S. 478, 486 (1991) (citing Forrester, 484 U.S. at 224).

In this case, the Judges have not met their burden of demonstrating that they are entitled to

absolute judicial immunity for their actions or inactions in relation to their supervision of

Radiceski’s employment, which is an administrative and not a judicial function. See Forrester, 484

U.S. at 229 (holding that a state judge “was acting in an administrative capacity when he demoted

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and discharged” a probation officer and therefore was not entitled to absolute immunity); Ray, 2012

WL 5499630, at *2 (finding that the judge did not have absolute judicial immunity from the § 1983

claim because the act of terminating the plaintiff’s employment was an administrative act (citing

Forrester, 484 U.S. at 227)); Rosenbarger v. Shipman, 857 F. Supp. 1282, 1286 (N.D. Ind. 1994)

(holding that the defendant judge’stermination of the plaintiff probation officer’s employment was

not subject to absolute judicial immunity because “employment decisions concerning probation

officers, while a judge’s statutory duty, are not a traditional juridical function but rather are an

administrative function” (citing Forrester, 474 U.S. at 228-30)); compare Payne v. Cnty. of Cook,

No. 15 C 3154, 2016 WL 1086527, at *8 (N.D. Ill. Mar. 21, 2016) (finding, in a case brought by a

probationer and unrelated to an employment decision, that under Illinois law the judge was entitled

to absolute judicial immunity in his role in overseeing the probation department).

However, Ms.Bostic also alleges a constitutional claim based on the issuance ofthe October

30, 2014 ex parte court order. See (ECF 81, ¶ 35). Because the issuance of the order falls squarely

within the purview of absolute judicial immunity as a purely judicial act, the Superior Court Judge

Defendants are entitled to absolute judicial immunity on the constitutional claim based on the

October 30, 2014 ex parte court order. See Mireles, 502 U.S. at 12; see also Dawson, 419 F.3d at

660-61.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the

Motion for Judgment on the Pleadings [DE 91]. The Court ORDERS that the § 1983 claims in

Count I against Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas

P. Stefaniak,Jr., and Samual L. Cappas based on the issuance of the October 30, 2014 ex parte order

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are DISMISSED WITH PREJUDICE. The Court further ORDERS that the claims in Count I

against these Defendants otherwise REMAIN PENDING.

SO ORDERED this 12th day of April, 2018.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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