UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

PAUL FREEMAN 

 Plaintiff, 

 v. 

CITY OF CROWN POINT, et al., 

 Defendants. 

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Case No. 2:13-CV-059 JD 

MEMORANDUM OPINION AND ORDER

This is a civil rights action in which the plaintiff, Paul Freeman, seeks redress for being 

arrested and charged for a crime he did not commit. On February 8, 2013, Mr. Freeman initiated 

this action by filing a fourteen-count complaint against the City of Crown Point, Captain Sam 

Trapane, Detective Larry Scott, and “other unidentified officers of the Crown Point Police 

Department,” alleging, inter alia, that the defendant police officers falsified incriminating 

evidence and withheld exculpatory evidence. The defendants have moved to dismiss all of the 

claims except for the claims brought against the officers in their individual capacities under 42 

U.S.C. § 1983 for violations of Mr. Freeman’s Fourth Amendment rights. [DE 18, 19]. The 

plaintiff has responded to that motion. [DE 26]. The defendants’ reply brief was stricken for 

failure to comply with applicable filing rules, and though they were given leave to properly refile it, they did not do so. [DE 27, 31]. The defendants also moved to strike an exhibit that the 

plaintiff attached to his response to the motion to dismiss [DE 28], and that motion has been fully 

briefed. [DE 29, 30, 32]. Finally, after the briefing on these matters had closed, the plaintiff filed 

a motion for the Court to take notice of supplemental authority [DE 37], to which the defendants 

have not responded. 
2 

For the following reasons, Defendants’ partial motion to dismiss [DE 18] is GRANTED 

in part and DENIED in part; Defendants’ motion to strike [DE 28] is DENIED, and; Plaintiff’s 

motion to take notice of supplemental authority [DE 37] is GRANTED. 

I. FACTUAL BACKGROUND 

This action stems from an incident in November 2010, in which a donation canister 

containing $142.00 was stolen from the front counter of County Seat Liquors1

 in Crown Point, 

Indiana. [DE 1 ¶ 9]. The theft was captured and recorded from multiple angles by County Seat 

Liquors’ video surveillance system. [Id. ¶ 11]. After the theft, County Seat Liquors took a screen 

shot from the video recording and posted the picture of the perpetrator at the front counter. [Id. 

¶ 15]. That picture remained in the store for several months, during which time numerous 

customers speculated as to who the individual may have been. [Id. ¶¶ 17, 18]. At some point, a 

customer noted in passing that the individual in the picture might “look like” Mr. Freeman, or 

something to that effect. [Id. ¶ 19]. Mr. Freeman had never even been inside County Seat 

Liquors, however. [Id. ¶ 13]. In January 2011, the owner of County Seat Liquors reported the 

theft to the police, and he provided the police with the video recordings of the theft and the list of 

names he had been provided of possible suspects, one of which was Mr. Freeman. [Id. ¶¶ 20, 21]. 

The Crown Point Police Department assigned Detective Larry Scott and Captain Sam 

Trapane, both of whom are defendants in this matter, to investigate the theft. [Id. ¶ 22]. Mr. 

Freeman alleges that after viewing the video and reviewing the list of names, and without any 

further investigation, the officers decided that Mr. Freeman must have committed the theft, and 

became determined to implicate him in the crime. [Id. ¶¶ 22, 23]. To do so, they allegedly 

 

1

 The Complaint variously refers to the store as County Seat Liquor, Crown Seat Liquors, and 

Crown Point Liquors, though these all appear to refer to the same store. 
3 

fabricated a story that the teller on duty at the time of the theft had positively identified Mr. 

Freeman as the perpetrator. [Id. ¶ 24]. Even though the officers knew that this was false, they 

included this statement in their police reports and in the probable cause affidavit to secure a 

warrant for Mr. Freeman’s arrest and to charge him with the crime. [Id. ¶ 27]. On February 9, 

2011, based on these fraudulent statements, a warrant was issued for Mr. Freeman’s arrest. [Id.

¶ 28]. 

When Mr. Freeman learned that the police were looking for him, he went to the police 

station in order to clear his name. [Id. ¶ 29]. Even though the warrant for his arrest had not been 

supported by probable cause, the officers arrested Mr. Freeman, transferred him to the county 

jail, and charged him with conversion. [Id. ¶ 30]. Mr. Freeman alleges that over the course of his 

criminal prosecution for this crime, the defendant officers repeatedly refused to give either Mr. 

Freeman’s defense counsel or the prosecutor’s office the video tapes of the theft, ignored or 

withheld exculpatory evidence, and took other unspecified efforts to draw out the disposition of 

the case. [Id. ¶ 31]. In September 2012, over a year and a half after the warrant was issued for 

Mr. Freeman’s arrest, the officers finally provided Mr. Freeman’s counsel and the prosecutor 

with a working copy of the video tape. [Id. ¶¶ 32, 33]. The tape clearly showed that the 

perpetrator had a tattoo on the left side of his neck. [Id. ¶ 12]. Because Mr. Freeman had no such 

tattoo, it was immediately apparent that he was not the perpetrator of the theft. [Id. ¶¶ 13, 34]. On 

September 25, 2012, the prosecutor moved to dismiss the charges on the grounds of 

misidentification. [Id. ¶ 34]. Though the charges were ultimately dropped, Mr. Freeman alleges 

that he suffered significant damages while the charges were pending, including emotional 

distress, lost wages, and lost educational opportunities, and that he continues to suffer the effects 
4 

of the charges, including through diminished job and career prospects, because the theft charge 

still shows up on background checks. [Id. ¶¶ 36, 37]. 

Mr. Freeman therefore filed his fourteen-count complaint in this matter on February 8, 

2013. [DE 1]. Counts I though III assert claims under § 1983 for violations of Mr. Freeman’s 

Fourth Amendment rights, alleging unlawful arrest, unlawful seizure, and a failure to intervene 

to prevent these violations, respectively. Counts IV and V assert conspiracy claims under § 1983 

and § 1985, respectively. Count VI asserts a claim for malicious prosecution under § 1983. All of 

the foregoing counts appear to be directed at the officers in their individual capacities. Count VII 

is directed at the City of Crown Point, and alleges that the city is liable under § 1983 for the 

above constitutional violations on account of informal policies or practices of the city that caused 

the violations. Finally, Counts VIII through XIV assert various state law claims, including 

malicious prosecution, false imprisonment, negligent infliction of emotional distress, intentional 

infliction of emotional distress, conspiracy, indemnification, and respondeat superior. 

Defendants’ motion to dismiss seeks dismissal of all counts except for Counts I through III. 

II. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint when it fails 

to set forth a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 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. (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. 
5 

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 
6 

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 

Defendants have asserted eight separate grounds for dismissing one or more counts, and 

the plaintiff has in fact conceded several of them. The plaintiff has therefore agreed to 

voluntarily dismiss the following claims: § 1985 conspiracy (Count V); state law false 

imprisonment (Count IX); intentional and negligent infliction of emotional distress under state 

law (Counts X and XI); conspiracy under state law (Count XII); and state law indemnification 

and respondeat superior (Counts XIII and XIV). [DE 26 p. 1 n.1]. In addition, though the 

plaintiff did not specifically state that it was voluntarily dismissing the state law malicious 

prosecution claim (Count VIII), it did not respond to any of the defendants’ arguments in favor 

of dismissing that count, so the Court construes the plaintiff’s silence as an agreement to dismiss 

that count as well.2

 Finally, the plaintiff has agreed to voluntarily dismiss the “other unidentified 

officers of the Crown Point Police Department” from this matter. 

That leaves three counts in dispute: the § 1983 conspiracy claim (Count IV); the § 1983 

malicious prosecution claim (Count VI); and the § 1983 claim against the City of Crown Point 

based on the alleged constitutional violations committed by its officers (Count VII). The first two 

 

2

 In addition, the Indiana Tort Claims Act immunizes the defendants from such a claim, which 

would require dismissal as well. Serino v. Hensley, 735 F.3d 588, 595–96 (7th Cir. 2013); Butt v. 

McEvoy, 669 N.E.2d 1015, 1017–18 (Ind. Ct. App. 1996). 
7 

present purely legal questions, while the third is a matter of whether the plaintiff has pled 

sufficient allegations to state a claim against the city under Monell. After resolving the 

defendants’ motion to strike, the Court will address each of those issues in turn. 

A. Defendants’ Motion to Strike 

In responding to the defendants’ motion to dismiss, the plaintiff attached an exhibit 

containing two news articles. The articles, dated July 1, 1997 and January 17, 2002, report on 

separate allegations of misconduct against officers of the Crown Point Police Department. [DE 

26-1]. The defendants have moved to strike this exhibit because it presents matters outside of the 

pleadings. “A motion under Rule 12(b)(6) can be based only on the complaint itself, documents 

attached to the complaint, documents that are critical to the complaint and referred to in it, and 

information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 

745 n.1 (7th Cir. 2012) (citing Fed. R. Civ. P. 10(c) and collecting cases). Under Rule 12(d), “If, 

on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not 

excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” 

Fed. R. Civ. P. 12(d). Neither party asks this Court to convert the motion to summary judgment, 

which the Court agrees would be inappropriate. 

However, Plaintiff clarified in his response that he has provided these articles merely for 

illustrative purposes to demonstrate the plausibility of his Monell allegations, which is a 

permissible use of such materials. As the Seventh Circuit stated in Geinosky: 

If a moving party relies on additional materials, the motion must be converted to 

one for summary judgment under Rule 56. A plaintiff, however, has much more 

flexibility in opposing a Rule 12(b)(6) motion and in appealing a dismissal. A 

party appealing a Rule 12(b)(6) dismissal may elaborate on his factual allegations 

so long as the new elaborations are consistent with the pleadings. In the district 

court, too, a party opposing a Rule 12(b)(6) motion may submit materials outside 

the pleadings to illustrate the facts the party expects to be able to prove. In the 
8 

turmoil concerning civil pleading standards stirred up by Ashcroft v. Iqbal, 556 

U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a 

plaintiff who is opposing a Rule 12(b)(6) or Rule 12(c) motion and who can 

provide such illustration may find it prudent to do so. 

675 F.3d at 745 n.1 (internal citations omitted). Plaintiff has done precisely that here, so the 

Court will consider the articles for this limited purpose. Thus, although the illustrative value of 

these particular articles is likely minimal, the Court will not strike or exclude the exhibit, so the 

defendants’ motion is DENIED. 

B. Conspiracy under Section 1983 

Turning to the substance of the motion to dismiss, the defendants first seek dismissal of 

Count IV, which asserts a claim under 42 U.S.C. § 1983 based on allegations that the officers 

conspired to violate Mr. Freeman’s constitutional rights. Defendants do not dispute that the 

complaint adequately pleads a conspiracy, but argue that this claim must be dismissed because a 

conspiracy is not actionable under § 1983. Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) 

(“[C]onspiracy is not an independent basis of liability in § 1983 actions.”). This is an accurate 

statement of law, so if this count alleged only that the conspiracy itself violated Mr. Freeman’s 

constitutional rights, it would not state a claim. However, while this may be a plausible reading 

of the claim as it is written, Plaintiff has clarified that the conspiracy count is only meant to 

attach liability to the conspirators for the substantive constitutional violations committed by their 

co-conspirators, and that he does not claim that the conspiracy itself violated his constitutional 

rights. See Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988) (“In a tort case such as 

this (a section 1983 constitutional-tort case . . . ), the function of a conspiracy doctrine is merely 

to yoke particular individuals to the specific torts charged in the complaint.”). In other words, the 
9 

conspiracy count is predicated on the substantive constitutional violations alleged in the other 

counts, and simply serves to potentially extend that liability to additional defendants. 

While adding a separate claim for conspiracy could arguably be considered superfluous 

since the plaintiff has also brought claims for the substantive violations against each of the 

individual defendants, see James v. Village of Willowbrook, No. 11-cv-9126, 2012 WL 3017889, 

at *6 (N.D. Ill. July 19, 2012) (construing the § 1983 conspiracy count as redundant to the 

substantive counts pled against the same officers), federal courts routinely recognize § 1983 

conspiracy claims in these circumstances. Geinosky, 675 F.3d at 749–50 (reversing the dismissal 

of a conspiracy claim under § 1983 where the plaintiff had adequately pled substantive 

constitutional claims); Jones, 856 F.2d at 992 (7th Cir. 1988); Freeman v. City of Milwaukee, 

No. 13-cv-918-JPS, 2014 WL 197912, at *11–12 (E.D. Wisc. Jan. 15, 2014) (denying a motion 

to dismiss a § 1983 conspiracy claim); Rivera v. Lake County, No. , at *7 (N.D. Ill. Sept. 26, 

2013) (same). The defendants do not contest that the complaint adequately pleads substantive 

violations of Mr. Freeman’s rights under the Fourth Amendment, nor do they contest that it 

adequately pleads a conspiracy to violate those rights, so the motion to dismiss is DENIED as to 

Count IV. 

C. Malicious Prosecution under Section 1983 

Defendants next challenge Count VI, Plaintiff’s malicious prosecution claim under 

§ 1983. Defendants argue that Indiana law provides an adequate remedy for the alleged 

violations of Plaintiff’s rights, so there has not been a substantive violation of his constitutional 

rights on which to base this claim. Plaintiff responds that because the defendants enjoy absolute 

immunity from claims of malicious prosecution under state law, Indiana law does not provide an 

adequate remedy for his injuries, resulting in a violation of his constitutional rights. 
10 

“Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for 

vindicating federal rights conferred elsewhere.” Spiegel v. Rabinovitz, 121 F.3d 251, 255 (7th 

Cir. 1997). Any action under § 1983 must therefore be grounded on a specific constitutional 

clause or statutory provision. Id. However, unlike the Fourth Amendment’s prohibition on 

unreasonable searches and seizures, for example, there is no express constitutional right against 

malicious prosecution or “being prosecuted groundlessly.” Bielanski v. County of Kane, 550 F.3d 

632, 638 (7th Cir. 2008); Serino v. Hensley, 735 F.3d 588, 592–93 (7th Cir. 2013) (noting that 

“[f]ederal courts are rarely the appropriate forum for malicious prosecution claims” since 

“individuals do not have a federal right not to be summoned into court and prosecuted without 

probable cause”). Accordingly, when brought under federal law, the claim referred to 

colloquially and under state common law as “malicious prosecution” is typically based on the 

deprivation of liberty without due process of law, in violation of the Fourteenth Amendment.3

U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or 

property, without due process of law”); Julian v. Hanna, 732 F.3d 842, 845 (7th Cir. 2013); see 

Hensley, 735 F.3d at 592 (“[W]e usually analyze these self-styled ‘malicious prosecution’ claims 

as alleging a violation of a particular constitutional right, such as the right to be free from 

unlawful seizures under the Fourth Amendment, or the right to a fair trial under the Due Process 

Clause.”). 

 

3

 Many other circuits ground malicious prosecution claims in the Fourth Amendment where the 

plaintiff was seized during the process, which would obviate the need to consider the adequacy 

of state remedies. Julian, 732 F.3d at 846 (collecting cases). As the court recognized in Julian, 

however, the difference is immaterial here; because Indiana does not provide an adequate state 

remedy, Mr. Freeman’s claim survives under the Fourteenth Amendment, and the elements of a 

malicious prosecution claim are the same under the Fourth and Fourteenth Amendments. Id. 
11 

Courts have recognized that the harm caused by malicious prosecutions may implicate 

liberty and property interests, as contemplated by the Due Process Clause. See Hensley, 735 F.3d 

at 594–95 (noting that imprisonment and pretrial travel restrictions implicate liberty interests, 

and that, at least arguably, one’s reputation and finances are protected interests); Julian, 732 F.3d 

at (noting that the plaintiff sustained damages while being kept “in limbo” for several years 

while awaiting trial). But see Alexander v. McKinney, 692 F.3d 553, 556–57 (7th Cir. 2012) 

(holding that a plaintiff did not state a Due Process Clause violation for having to face trial based 

on fabricated and suppressed evidence where the only harm he alleged stemmed from his initial 

arrest, which must be addressed through the Fourth Amendment). However, except in narrow 

circumstances not applicable here, the Fourteenth Amendment’s Due Process Clause is not 

absolute—it does not proscribe deprivations of liberty or property altogether, it just requires that 

individuals receive “due process” (which is itself a fluid concept) when such deprivations occur. 

U.S. Const. amend. XIV, § 1; Parratt v. Taylor, 451 U.S. 527, 537 (1981) (“Nothing in [the 

Fourteenth] Amendment protects against all deprivations of life, liberty, or property by the State. 

The Fourteenth Amendment protects only against deprivations ‘without due process of law.’”). 

Thus, once a plaintiff adequately pleads a deprivation of his liberty or property by a state, 

a court must determine whether the state affords the plaintiff due process for that deprivation, 

which can include a post-deprivation civil action against the state or its agents. Hensley, 735 F.3d 

at 592 (“But because we are concerned only with due process in these circumstances, the 

existence of an adequate state remedy for the plaintiff’s injury eliminates the need for federal 

intervention via § 1983.”); Julian, 732 F.3d at 845 (“[T]o preclude the federal remedy there must 

be an adequate state remedy.”). If so, then there is no Due Process Clause violation, meaning that 
12 

there is no constitutional violation upon which to base a § 1983 claim. Albright v. Oliver, 510 

U.S. 266, 285 (1994) (Kennedy, J., concurring) (“[W]here an injury has been caused not by a 

state law, policy, or procedure, but by a random and unauthorized act that can be remedied by 

state law, there is no basis for intervention under § 1983.” (emphasis added)). As the Seventh 

Circuit has summarized, “the existence of a malicious prosecution cause of action under state 

law ‘knocks out any constitutional tort of malicious prosecution, because, when a state-law 

remedy exists . . . due process of law is afforded by the opportunity to pursue a claim in state 

court.’” Hensley, 735 F.3d at 593 (quoting Newsome, 256 F.3d at 751) (alteration in original). 

Here, Mr. Freeman’s claim is that he was deprived of liberty interests by a malicious 

prosecution, and Indiana does recognize malicious prosecution as a cause of action. City of New 

Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001). However, the Indiana Tort Claims Act 

provides the defendants, as governmental entities and employees, with absolute immunity 

against claims of malicious prosecution. Ind. Code §§ 34-13-3-3(6), (8), -5(b), (c); Butt v. 

McEvoy, 669 N.E.2d 1015, 1017–18 (Ind. App. 1996). Thus, although Indiana recognizes claims 

of malicious prosecution in theory, such a claim would afford Mr. Freeman no possibility of 

relief. State law remedies need not be comprehensive or guaranty relief in order to be 

constitutionally adequate, though, see Hudson v. Palmer, 468 U.S. 517, 535 (1984) (“[T]hat 

[Plaintiff] might not be able to recover under these [state] remedies the full amount which he 

might receive in a § 1983 action is not, as we have said, determinative of the adequacy of the 

state remedies.”), so there has been conflicting authority on whether Indiana nonetheless 

provides an adequate remedy. 
13 

The Seventh Circuit addressed this question in a related context in Belcher v. Norton, and 

held that the Tort Claims Act deprives plaintiffs who assert claims against state officers of an 

adequate alternative remedy to a federal suit where the defendants would be immunized from 

any liability. 497 F.3d 742, 751 (7th Cir. 2007) (stating that while the remedies under state law 

need not be the same as would be available under § 1983 to constitute an adequate remedy, the 

relief afforded by the state remedy cannot be “meaningless or non-existent”). Though a number 

of district courts subsequently held that the Tort Claims Act did not deprive plaintiffs of 

adequate state remedies as to malicious prosecution, the Seventh Circuit recently overturned this 

line of cases and expressly held that Indiana law does not provide a constitutionally adequate 

state remedy for malicious prosecution due to its grant of absolute immunity. Julian, 732 F.3d at 

846–48 (“[I]ndiana’s failure to provide an adequate remedy for malicious prosecution by public 

officers opens the door to federal malicious prosecution suits against such officers . . . .”); see 

also Hensley, 735 F.3d at 593 (reiterating Julian’s holding that “Indiana state law does not 

provide an adequate remedy for malicious prosecution”). Therefore, because the state remedy is 

inadequate, plaintiffs whose liberty or property are deprived through malicious prosecution in 

Indiana are denied due process of law in violation of the Fourteenth Amendment, and may seek 

redress through § 1983. 

Here, Defendants do not dispute that Mr. Freeman has alleged deprivations of his liberty 

through malicious prosecution by state actors. Because Indiana law provides no adequate remedy 

for those deprivations, he has sufficiently plead a violation of his Fourteenth Amendment rights 

and can maintain an action under § 1983. Defendants’ motion to dismiss is therefore DENIED as 
14 

to Count VI. Plaintiff’s Motion for the Court to Take Notice of Supplemental Authority, which 

attached the Seventh Circuit’s opinion in Julian, is GRANTED. 

D. Municipal Liability under Section 1983 

Defendants finally move to dismiss Count VII, which asserts that the City of Crown Point 

is liable under § 1983 for the constitutional torts committed by its employees. There is no such 

thing as vicarious liability under section 1983, though, as section 1983 does not impose liability 

on a municipality “solely because it employs a tortfeasor.” Monell v. Dep’t of Soc. Servs., 436 

U.S. 658 (1978). Thus, to proceed with an action against a municipality based on a constitutional 

violation committed by its agents, a plaintiff must plead: 

(1) an express policy that, when enforced, causes a constitutional deprivation; 

(2) a widespread practice that, although not authorized by written law or express 

municipal policy, is so permanent and well settled as to constitute a custom or 

usage with the force of law; or (3) an allegation that the constitutional injury was 

caused by a person with final policymaking authority. 

McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995) (internal quotations omitted); 

Johnson v. Cook Cnty., 526 F. App’x 692 (7th Cir. 2013). Thus, to survive a motion to dismiss, a 

plaintiff must “plead factual content that allows the court to draw the reasonable inference that 

the City maintained a policy, custom, or practice” that was the moving force behind the 

constitutional violations. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) 

(internal citation omitted). 

As with any pleading, though, merely pleading “‘labels and conclusions’ or ‘a formulaic 

recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting 

Twombly, 550 U.S. at 555). The Seventh Circuit has summarized the analysis of a motion to 

dismiss as follows: 
15 

First, a plaintiff must provide notice to defendants of her claims. Second, courts 

must accept a plaintiff's factual allegations as true, but some factual allegations 

will be so sketchy or implausible that they fail to provide sufficient notice to 

defendants of the plaintiff's claim. Third, in considering the plaintiff's factual 

allegations, courts should not accept as adequate abstract recitations of the 

elements of a cause of action or conclusory legal statements. 

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Accordingly, the central principles of this 

analysis are that only facts, not legal conclusions, receive a presumption of truth, and that those 

facts must provide enough detail to provide notice of the claim and its bases and to show that the 

claim is plausible, not merely speculative. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555; 

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 

(1993) (holding that while no heightened pleading standard applies to Monell claims, the 

complaint must still “give the defendant fair notice of what the plaintiff’s claim is and the 

grounds upon which it rests”). 

Plaintiff’s Monell claims fall short of this standard, as the allegations are predominantly 

made up of bare legal conclusions, and the few factual allegations that arguably relate to the 

city’s alleged policies are too few and too generalized to plausibly suggest that the City of Crown 

Point’s policies were the moving force behind the alleged violations and to provide it with 

adequate notice of the claims against it. Mr. Freeman does not allege that his injuries were 

caused by any express municipal policy or by a person with final policymaking authority for the 

City of Crown Point. Rather, he proceeds under the more nebulous second Monell prong, arguing 

that his injuries were caused by unofficial but widespread practices so permanent and wellsettled as to constitute a policy. The complaint first alleges as to the Monell claims that 

“Defendant City of Crown Point maintains policies, practices, or customs that caused or were the 
16 

moving force behind the above-mentioned constitutional violations.” [DE 1 ¶ 51] This is a bare 

legal conclusion and can be disregarded for these purposes. 

Second, the complaint alleges that “Plaintiff’s injuries were proximately caused by 

Defendant Crown Point’s policies, practices, and customs of failing to train, supervise, discipline 

and control their police officers. Defendant Officers’ misconduct was undertaken pursuant to the 

policy, practice, and custom of the City of Crown Point in that” the City of Crown Point “fail[s] 

to adequately investigate, punish and discipline prior instances of similar misconduct,” “rarely 

make[s] findings of wrongdoing” for abuses by its officers, and that its policymakers “are aware 

of, and condone and facilitate by their inaction, a ‘code of silence’ in the Crown Point Police 

Department.” [Id. ¶ 52]. Again, these are largely “[t]hreadbare recitals of the elements of a cause 

of action, supported by mere conclusory statements,” which do not suffice. Iqbal, 556 U.S. at 

678. Though these legal conclusions contain several allegations of a factual nature, courts “are 

not bound to accept as true a legal conclusion couched as a factual allegation,” and to the extent 

these factual allegations are entitled to a presumption of truth, they are much too general and 

“sketchy” to provide Defendants with notice of the claims against them and to raise Plaintiff’s 

right to relief beyond the speculative level. Id.; Brooks, 578 F.3d at 582 (dismissing a § 1983 

claim where the factual allegations provided “merely a formulaic recitation of the cause of 

action” and did not “put the defendants on notice of what exactly they might have done to 

violate” the plaintiff’s rights). 

For example, the complaint alleges that “Police officers routinely fail to report instances 

of police misconduct and lie to protect each other from punishment, and go un-disciplined for 

doing so.” [DE 1 ¶ 52(d)]. First, it is not clear that this allegation actually refers to police officers 
17 

generally or to officers within the Crown Point Police Department. Second, this broad statement, 

without any factual support or basis, is insufficient to provide Defendants with notice of the 

claim against it or to create a reasonable inference that the city adopted a de-facto policy of 

intentionally causing the deprivations alleged here. See Gibson v. City of Chicago, No. 13 C 

03273, 2013 WL 6698164, at *3–4 (N.D. Ill. Dec. 17, 2013) (dismissing a Monell claim that 

alleged that the city “acted willfully and wantonly in that it condones a code of silence among 

police officers that leads to numerous prosecutions designed to cover up batteries and false 

arrests”); Armour v. Country Club Hills, No. 11 C 5029, 2014 WL 63850, at *6–7 (N.D. Ill. Jan. 

8, 2014). (dismissing a Monell claim where the allegations were so broad as to “encompass 

virtually all the activities of a police department and every contact it has with the public”). 

The complaint similarly alleges that “officers of the Crown Point Police Department 

abuse citizens in a similar manner to that alleged by Plaintiff on a frequent basis, yet the Crown 

Point Police Department rarely make [sic] findings of wrongdoing.” [DE 1 ¶ 52(c)]. Again, this 

overgeneralized statement fails to provide the City with adequate notice of the claims against it. 

Mr. Freeman has alleged at least five separate violations by the officers here, including arresting 

him without probable cause, fabricating incriminating statements, failing to intervene, conspiring 

against him, and withholding exculpatory evidence. The allegation that officers “abuse citizens 

in a similar manner to that alleged by Plaintiff” could be referring to any or all of these alleged 

abuses. As in Armour, this would encompass nearly every activity of the department, and 

deprives the City of the notice to which it is entitled as to what policies it maintains that deprived 

Mr. Freeman of his rights. Armour, 2014 WL 63850, at *6–7; see also Falk v. Perez, No. 12-cv1384, 2013 WL 5230632 (N.D. Ill. Sept. 12, 2013) (dismissing a Monell claim based on 
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allegations that the defendant “failed to adequately supervise, discipline, and control its 

officers, . . . allowed conduct such as Defendant[’s] to continue as a matter of practice, . . . [and] 

failed to adequately secure and protect the rights of tenants in eviction and foreclosure actions as 

a matter of widespread practice so prevalent as to comprise policy”). 

In opposing the motion to dismiss, Plaintiff primarily relies on the allegation in the body 

of the complaint that “the Defendant Officers repeatedly refused to give Plaintiff’s defense 

counsel and/or the prosecutor’s office the video tapes of the theft . . . and took other efforts to 

draw out the disposition of Plaintiff’s frivolous criminal case.” [DE 1 ¶ 31 (emphasis added)]. 

Plaintiff argues that this distinguishes this case from others in which a plaintiff asks the court to 

infer the existence of a policy from only a single act of misconduct, since the officers here 

allegedly engaged in multiple acts of misconduct. As an initial matter, though, these allegations 

relate only to the officer’s actions relative to the malicious prosecution claim, and not to any of 

the Fourth Amendment claims. Thus, even if these allegations sufficed to imply a municipal 

policy, they would only support a Monell claim as to the malicious prosecution count. Even as to 

that count, however, these allegations only pertain to a single prosecution and the officers’ 

conduct relative to that prosecution. Thus, while this may present somewhat of a stronger case 

than one involving a single officer’s use of excessive force during a single arrest, for example, 

the officer’s alleged efforts to unlawfully prolong a single prosecution do not reasonably permit 

an inference that the city maintained a de-facto policy of withholding exculpatory evidence and 

maliciously prolonging prosecutions. 

Finally, as previously discussed, Plaintiff has attached two news articles to his response 

to the motion to dismiss, which he argues demonstrate the plausibility of his Monell allegations. 
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However, these articles have too little relevance to Plaintiff’s allegations to influence this 

analysis at all. The first article, dated July 1, 1997, describes an interrogation that apparently 

took place in November 1996, in which then-detective bureau chief Sam Trapane was one of the 

interrogators. This article is too remote in time to have any probative value here, and its content 

adds nothing to Plaintiff’s allegations, either. Though the article describes the interrogation 

techniques as “questionable,” its point is to question the validity of the subject’s resulting 

admission, and it does not actually accuse the officers of any misconduct. The article also does 

not reflect any failure to train or failure to discipline, upon which Plaintiff has based his Monell

claim, and does not otherwise relate to the facts of the case here. The second article is immaterial 

for similar reasons. It recounts a verbal altercation between an officer and a civilian who were 

involved in a car accident that took place in January 2002, nearly ten years before the events at 

issue here, and there is no indication that the incident involved a failure to train or discipline the 

officers. Further, even if the incident was in any way related to the claims here, the article would 

tend to rebut rather than illustrate the plausibility of Plaintiff’s allegation that the City fails to 

investigate police misconduct, as the article notes that the Chief of Police assigned an officer to 

investigate the complaint. 

In sum, Plaintiff has not plead sufficient factual content to put Defendants on notice of 

his claims and their grounds, or to raise his right to relief above the speculative level. 

Accordingly, the Monell claim against the City of Crown Point in Count VII must be dismissed, 

so Defendants’ motion is GRANTED as to that count. This dismissal will be without prejudice, 

however. Having now had the benefit of conducting discovery on this matter, Plaintiff may be 
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able to amend the complaint to include sufficient factual matter to state a Monell claim if there is, 

in fact, a basis for such a claim. 

IV. CONCLUSION 

For the reasons stated, Defendants’ motion to dismiss [DE 18] is GRANTED in part and 

DENIED in part. The motion is GRANTED as to Count V and Counts VII through XIV, which 

are DISMISSED WITHOUT PREJUDICE, and as to the “Other Unidentified Officers of the 

Crown Point Police Department,” who are terminated as defendants in this matter, but is 

DENIED as to Counts IV and VI. Therefore, Counts I through IV and Count VI still remain at 

issue in this matter. In addition, Defendants’ motion to strike [DE 28] is DENIED and Plaintiff’s 

motion to take notice of supplemental authority [DE 37] is GRANTED. 

 SO ORDERED. 

 ENTERED: February 11, 2014 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court