UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RENEE CHAPMAN, )

)

Plaintiff, )

)

v. ) Case No. 3:13CV730-PPS/CAN

)

STATE OF INDIANA, GOVERNOR )

MICHAEL R. PENCE, in his official )

capacity, INDIANA STATE POLICE )

DEPARTMENT, and STATE TROOPER )

DANIEL BURCH, in his individual )

capacity )

)

Defendants. )

OPINION AND ORDER

Plaintiff Renee Chapman claims that she is the victim of a variety of state law

torts and also has had a number of her constitutionally protected rights violated by the

acts of Indiana State Trooper Daniel Burch. Her First Amended Complaint alleges a

series of claims not only against Burch, but also the State of Indiana, Governor Michael

R. Pence, and the Indiana State Police Department. [DE 23.] Defendants seek dismissal

of Pence and dismissal of Counts I-VI.1 [DE 26.] For the following reasons, Defendants’

motion is GRANTED in part and DENIED in part.

1

 In their Partial Motion to Dismiss, Defendants also presented challenges to Counts X and XI of Chapman’s First

Amended Complaint. [DE 27 at 7-9.] However, in their Reply, Defendants apparently dropped their challenge to

Counts X and XI, as they are not discussed and are conspicuously absent in the final sentence which reads, “[t]he

First Amended Complaint with respect to Counts I through VI should be dismissed.” [DE 29 at 4.]

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FACTS AND PROCEDURAL BACKGROUND

On April 7, 2012, Chapman was traveling home after spending time with family

and friends, when Burch began to follow Chapman’s vehicle. [DE 23 at ¶6.] Shortly

before Chapman arrived home, Burch activated his emergency lights. [Id.] Chapman

continued driving and pulled up to her house before gathering her driver’s license and

insurance/registration information, unaware of why she was being pulled over. [Id. at

¶7.] Chapman next alleges that Burch approached Chapman’s vehicle, opened the

driver’s door, pulled her from the vehicle, threw her to the ground, handcuffed her,

pulled her back up, and placed her under arrest. [Id. at ¶8.] 

Chapman filed a complaint in St. Joseph County Superior Court. [DE 1.]

Defendants then removed the case to federal court. [DE 2.] On the same day that they

filed their Partial Answer to Chapman’s Complaint, Defendants also filed a Partial

Motion to Dismiss. [DE 7, 8.] In lieu of filing a response brief, Chapman opted to amend

her complaint. [DE 22.] In light of the filing of the Amended Complaint, I denied

Defendants’ Partial Motion to Dismiss, without prejudice, as moot. [DE 24.] A few days

later, Defendants filed their Partial Answer to Chapman’s Amended Complaint, as well

as a Partial Motion to Dismiss Chapman’s Amended Complaint, which I will now

consider. [DE 25, 26.]

DISCUSSION

In order to survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, “a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009); accord Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). I must accept all

factual allegations as true and draw all reasonable inferences in the complainant’s favor,

but I don’t need to accept threadbare legal conclusions supported by purely conclusory

statements. See Iqbal, 556 U.S. at 678. The first step in my analysis is to identify and

disregard all allegations in the First Amended Complaint that are not entitled to the

presumption of truth, especially including any legal conclusions. Id. at 680. Then I must

look at the remaining allegations to determine whether they plausibly – and not merely

possibly or conceivably – suggest an entitlement to relief. Id. at 681. This task invariably

requires me to draw on my judicial experience and common sense. Id. at 679. 

I. Chapman’s Claim against Governor Pence

Chapman filed her First Amended Complaint naming Governor Pence in his

official capacity and indicating that Pence “is a Defendant in this action only insofar as

declaratory relief is sought by Chapman and is not a Defendant in any other capacity or

claim.” [DE 23 at ¶3.]2 Because those references to Pence in paragraph 3 are the last

mention of the Governor in the pleading, even the notion that Chapman has brought a

“claim” for declaratory relief against Pence is overly generous. The First Amended

Complaint is completely lacking in any factual allegations or a legal theory supporting

any claim for relief against Pence, and he will be dismissed for that reason.

Governor Pence primarily argues he is immune from suit under the Eleventh

Amendment. Notwithstanding the parties’ arguments about the scope of Eleventh

2 Chapman erroneously states in her Memorandum in Opposition to Defendants’ Partial Motion to Dismiss that she

“requested both declaratory and injunctive relief against Pence in his official capacity.” [DE 28 at 4.] (emphasis

added). 

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Amendment immunity, the claim against Governor Pence fails on more obvious

grounds, namely that it has been insufficiently pled. Chapman appears to be asking for

a declaration that Pence’s conduct was unconstitutional. [DE 23 at 7.] But there is

nothing in Chapman’s First Amended Complaint that describes what conduct by Pence

was supposedly unconstitutional. More to the point, Chapman does not present any

facts which indicate that any of Burch’s alleged misconduct was the result of any action

attributable or traceable to Pence. Without any such facts, Chapman’s complaint is

insufficient to satisfy Iqbal’s requirement that the claim be “plausible.” Since Chapman

presents only threadbare legal conclusions unsupported by anything more than purely

conclusory statements in her claim against Governor Pence, Defendants’ Motion to

Dismiss Chapman’s claim for declaratory relief against Pence will be GRANTED.

II. Counts I, II, and III

I turn next to Defendants’ argument that Counts I-III are not sufficiently pled. As

an initial observation, Defendants present their Motion to Dismiss under the impression

that Counts I-III are pled “against Trooper Burch in his individual capacity.” [DE 27 at

4.] Interestingly enough, the headings for Counts I-III in Chapman’s First Amended

Complaint each read respectively as: “Battery Against Defendants,” “Assault Against

Defendants,” and “False Imprisonment Against Defendants;” which leave the reader

with the impression that either: (1) the Defendants are the victims of the alleged battery,

assault, and false imprisonment, or (2) that the Counts apply to all named Defendants.

[DE 23 at 3-4.] Regardless of Chapman’s headings for these counts, only Burch is

specifically identified in the text of each of them. [Id.] In light of this, and since in her

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response Chapman does not push back against Defendants’ reasonable interpretation of

Counts I-III, I will treat Counts I, II, and III as applying only to Burch.

Defendants’ primary argument for dismissal of Counts I-III revolves around

Chapman’s repeated allegation that Burch’s actions “were malicious, willful, and

wanton.” Specifically, Defendants argue that Chapman does not include a reasonable

factual basis supporting such allegations, as required by Ind. Code § 34-13-3-5(c). [DE

27 at 4-5.] Defendants also argue that Chapman’s First Amended Complaint fails to

meet the minimal pleading requirements of Fed.R.Civ.P. 8, which calls for a “short plain

statement of the claim showing that the pleader is entitled to relief.” [Id. at 5.] 

It is clear to me that Chapman has sufficiently pled her claims for battery,

assault, and false imprisonment. Chapman’s complaint contains factual allegations that

Burch, “proceeded to yank Ms. Chapman out of the vehicle and throw her onto the

ground after which he handcuffed Ms. Chapman, pulled her back up placing her up

against the vehicle, and ultimately placed her under arrest.” [DE 23 at ¶8.] Chapman

adopts and incorporates these allegations in Counts I-III, as encouraged by Fed.R.Civ.P.

10(b). Following Iqbal, I am to accept these factual allegations as true and draw all

reasonable inferences in the complainant’s favor. Iqbal, 556 U.S. at 678. Since Counts I-III

are not threadbare legal conclusions, but are supported by factual allegations I’ve

accepted as true, I also must analyze whether they plausibly suggest an entitlement to

relief. Id. at 678, 681.

The Twombly/Iqbal plausibility standard means that it is not enough to allege facts

consistent with the asserted claim; the alleged facts must affirmatively “nudge” the

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claim into the realm of plausibility. See Twombly, 550 U.S. at 570. Put a little more

concretely, “the plaintiff must give enough details about the subject-matter of the case

to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th

Cir. 2010). Here, it is obvious that Chapman has provided allegations that present a

story that holds together, plausibly suggesting that she may be entitled to relief she

seeks in Counts I through III for battery, assault and false imprisonment. The manhandling she describes is sufficient to present a plausible case for each of those torts. 

Defendants’ Motion to Dismiss Counts I, II, and III will be DENIED.

III. Counts IV, V, and VI

A. Federal Rule of Civil Procedure 12(g)(2)

As an initial matter, in view of Defendants’ earlier motion to dismiss, Chapman

raises the interesting argument that Defendants have waived the ability to move for

dismissal of Counts IV-VI because of Fed.R.Civ.P. 12(g)(2). According to Rule 12(g)(2),

“[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule

must not make another motion under this rule raising a defense or objection that was

available to the party but omitted from its earlier motion.” But as Defendants correctly

assert, Rule 12(h)(2) expressly excepts failure-to-state-a-claim defenses from the Rule

12(g) “consolidation requirement.” 

Rule 12(h)(2) reads, “[f]ailure to state a claim upon which relief can be granted...

may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion

under Rule 12(c); or (C) at trial.” The Seventh Circuit has interpreted the rules to limit

the consolidation requirement in the manner Defendants suggest: “Rule 12(g)(2) does

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not prohibit a new Rule 12(b)(6) argument from being raised in a successive motion.” 

Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012). Therefore, since Defendants’ motion

to dismiss clearly falls within the Rule 12(h)(2) exception to Rule 12(g)(2), Defendants

have not waived the ability to move for dismissal of Counts IV-VI. 

B. Defendants’ Challenge to Emotional Distress and Negligence Claims

Counts IV, V and VI make claims of intentional infliction of emotional distress,

negligence, and negligent infliction of emotional distress. Defendants contend that

Chapman fails to adequately allege that Burch intended to harm her emotionally, that

Defendants owed Chapman a private duty of care, or that negligence caused her an

emotional trauma. 

In response, Chapman correctly asserts that the Federal Rules do not require

more than a general allegation as to state of mind when the underlying facts are

sufficiently pled. Specifically, Fed.R.Civ.P. 9(b) reads, in part, “ [m]alice, intent,

knowledge, and other conditions of a person's mind may be alleged generally.” 

Particularly in view of Rule 9(b)’s general pleading standard, with respect to both the

intentional and negligent infliction of emotional distress claims, Chapman has

sufficiently pled that Burke’s extreme, outrageous and intentional conduct of pulling

her out of her vehicle, pushing her to the ground, and ultimately arresting her, caused

her to suffer emotional distress. [DE 23 at ¶8-9.] Chapman is not required to plead any

more specifically concerning Burke’s conduct causing her emotional distress.

As to the negligence and negligent infliction claims, Defendants also argue that

negligence claims against a governmental entity require more than a duty owed to the

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public as a whole, but a relationship between the plaintiff and the governmental entity

giving rise to a private duty owed to the particular person. “Under Indiana law, law

enforcement officers owe a private duty to refrain from using excessive force in the

course of making arrests.” Kemezy v. Peters, 622 N.E.2d 1296, 1297 (Ind. 1993). The

allegations concerning Burch’s actions logically support a violation of that private duty

of care, by actions bearing an unreasonable risk of causing Chapman to suffer emotional

distress or physical harm. Chapman has presented a series of factual allegations

regarding Burch’s conduct which, under the Iqbal/Twombly analysis, plausibly suggest

the commission of the torts of negligence and negligent infliction of emotional distress. 

Defendants’ Motion to Dismiss Counts IV, V and VI will be DENIED.

Before closing there is one more issue worth discussing relating to the claims of

negligence and infliction of emotional distress . Under the law enforcement immunity

provision of the Indiana Tort Claims Act, a governmental employee “acting within the

scope of the employee’s employment is not liable if a loss results from...[t]he adoption

and enforcement of...a law...unless the act of enforcement constitutes false arrest or false

imprisonment.” Ind. Code 34-13-3-3(8). Other than tort claims expressly carved out by

statutory limits or affirmative obligations imposed on law enforcement (such as claims

of false arrest), police officers have immunity from Indiana tort claims, including claims

for negligence and intentional infliction of emotional distress arising from their actions

in effecting arrests while engaged in law enforcement duties. Ashcraft v. City of Crown

Point, 2013 WL 5934612 at *6 (N.D.Ind. 2013) [DeGuilio, J.]; Ferris v. Williams, 2012 WL

6201074 at * (S.D.Ind. 2012). Such immunity doesn’t apply to torts such as assault and

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battery. Wilson v. Isaacs, 929 N.E.2d 200, 203 (Ind. 2010). But “‘add on’ claims such as

negligence and intentional infliction of emotional distress do not survive simply

because they are a product of improper conduct.” Struck v. Town of Fishers, 2013 WL

1149718 at *3 (S.D.Ind. 2013), citing Miller v. City of Anderson, 777 N.E.2d 1100, 1104

(Ind.Ct.App. 2002). 

It is perplexing that Trooper Burch has not raised the issue of tort immunity, and

so consideration of such a defense will have to await further argument, perhaps in a

motion for summary judgment.

CONCLUSION

For the reasons stated above, Defendants’ Partial Motion to Dismiss [DE 26] is

GRANTED in part with respect to all claims against defendant Governor Michael R.

Pence, but is otherwise DENIED.

SO ORDERED.

ENTERED: May 8, 2014.

 /s/Philip P. Simon 

Philip P. Simon, Judge

United States District Court

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