UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION 

TIMOTHY J. KOMOSCAR and 

KELLY A. KOMOSCAR, Individually 

and on behalf of N.A.K., R.E.K., N.R.K. 

and A.J.K, Minor Children, 

Plaintiffs, 

v. Case No. 2:15-CV-256 JVB

MICHAEL R. PENCE, Governor of the State 

of Indiana, MARY BETH BONAVENTURA, 

Director of the Indiana Department of Child 

Services, TERRANCE K. CIBOCH, 

LOUELLA F. RICHEY, TAMARA G. 

LOOMIS, BRITTNEY D. SCHMIDT, and 

the INDIANA DEPARTMENT OF CHILD 

SERVICES, 

Defendants. 

OPINION AND ORDER 

Plaintiffs Timothy and Kelly A. Komoscar sued Defendants Michael R. Pence, the 

Governor of the state of Indiana; the Department of Child Services (DCS); Mary Beth 

Bonaventura, director of DCS; and Terrance K. Ciboch, the regional manager of DCS; as well as 

DCS employees Louella F. Richey, Tamara G. Loomis, and Brittney D. Schmidt. Plaintiffs claim 

defendants violated various federal and state laws by establishing and carrying out policies and 

procedures that resulted in DCS wrongfully taking their children into custody and withholding 

adequate psychological care. Pursuant to Federal Rule of Civil Procedure 12(c), Pence and 
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Bonaventura moved for judgment on the pleadings; while remaining defendants moved for 

partial judgment on the pleadings. 

A. Background 

 The Amended Complaint alleges the following: on April 24, 2014, DCS removed 

Plaintiffs’ children from their home and initiated a Child in Need of Services action pursuant to 

Indiana Code § 31-34-1-1 et seq. The children remained in DCS custody for almost three 

months, at which time an administrative law judge ordered that the children be returned home. 

 Plaintiffs break down their claims as follows: 

 Pence, Bonaventura, and Ciboch established and maintained policies and procedures that 

violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution 

as well as the Indiana Constitution; Richey, Loomis, and Schmidt carried out these 

policies and procedures, further compounding the violations of Plaintiff’s rights; 

 DCS was negligent in hiring and retaining its employees and negligent in its operations; 

and it intentionally and negligently inflicted emotional distress upon Plaintiffs;

 Richey, Loomis, and Schmidt acted willfully and wantonly against Plaintiffs and 

intentionally inflicted emotional distress upon them.

Pursuant to Rule 12(c), Pence and Bonaventura moved for judgment on the pleadings and 

remaining defendants moved for partial judgment on the pleadings.
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B. Standard of Review 

 A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil 

Procedure is evaluated by the same standards as a motion to dismiss for failure to state a claim 

under Rule 12(b)(6). Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). “The 

facts alleged in the complaint are taken as true, drawing all reasonable inferences in favor of the 

plaintiff.” Id. 

To survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim 

has facial plausibility when it allows the court to draw reasonable inferences that the defendant is 

liable for the alleged misconduct. Id. 

 The complaint must contain only a “short plain statement of the claim showing plaintiff is 

entitled to relief.” Fed. R. Civ. P. 8(a)(2). But, while there is no need for detailed factual 

allegations, the plaintiff must “give the defendant fair notice of what the claim is and the grounds 

upon which it rests.” Olson v. Champaign County, 784 F.3d 1093, 1099 (7th Cir. 2015). The 

“factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555 (2007). 
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C. Discussion 

(1) § 1983 Claims 

 Plaintiffs allege that defendants Pence, Bonaventura, and Ciboch, established and 

maintained policies, customs and procedures that violated their due process rights under the Fifth 

and Fourteenth Amendments of the United States Constitution; as well as rights against 

unreasonable search and seizure under the Fourth and Fourteenth Amendments. Further, 

according to Plaintiffs, Ciboch, Richey, Loomis, and Schmidt violated those same constitutional 

rights when they removed the children from their home, and then allegedly failed to provide 

them with adequate psychological care. 

Defendants Ciboch, Richey, Loomis, and Schmidt do not seek judgment on the pleadings 

as to these claims against them. However, defendants Pence and Bonaventura contend that the 

facts alleged in the amended complaint are insufficient to hold them individually liable for the 

violations of the United Sates Constitution. 

 To hold an individual liable in a § 1983 action, the individual must participate in or cause 

the constitutional deprivation. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). An 

individual acting merely in a supervisory role cannot be held liable. Id. While direct participation 

is not necessary, the individual must have actual knowledge of the action, and upon the basis of 

that knowledge, could infer there was a substantial risk of serious harm. Palmer v. Marion 

County, 327 F.3d 588, 594 (7th Cir. 2003). 
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 Plaintiffs’ amended complaint fails to show that Pence and Bonaventura were in any way 

personally involved in the children’s removal or therapy. Likewise, there is no indication that 

they knew the children were in DCS custody, or that any substantial risk of serious harm existed. 

Accordingly, the Court will dismiss the § 1983 claims against defendants Pence and 

Bonaventura. 

(2) Pendent State Claims 

(a) State Constitutional Claims

Plaintiffs argue that the same policies, procedures, and conduct alleged in their § 1983 

claims against Pence, Bonaventura, Ciboch, Richey, Loomis, and Schmidt, also violated the 

Indiana Constitution. While Defendants maintain there is no private right of action for Indiana 

constitutional violations, Plaintiffs argue that the court in Cantrell v. Morris, 849 N.E.2d 498 

(Ind. 2006), rejected the rule barring recovery under the Indiana Constitution. Plaintiffs insist 

that state constitutional violations are evaluated according to the Indiana Tort Claims Act 

(ITCA). 

 Plaintiffs’ argument for recovery under the Indiana Constitution is misguided. Plaintiffs 

submit that the state constitutional violations should be evaluated according to the ITCA, which 

under Cantrell, then provides them a right to recovery. But Cantrell specifically held that “there 

is no explicit language in the Indiana Constitution providing any specific remedy for violations 

of constitutional rights.” Id. at 498. And without express constitutional provisions or common 

law precedent, no damage remedy exists. Id. Accordingly, the Court dismisses the Indiana 

constitutional claims. 
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 (b) State Law Tort Claims

Plaintiffs bring state law tort claims against DCS for intentional infliction of emotional 

distress; negligence; and negligent hiring and retention. DCS asserts immunity under the 

Eleventh Amendment. Plaintiffs argue DCS is not immune because the State has consented to 

suit under the Indiana Tort Claims Act. 

 The Court does not need to decide whether Indiana has consented under the ITCA to a 

suit against it because, even if it did, Plaintiffs cannot show that Indiana has consented to suit in 

federal court. 

 The Eleventh Amendment bars actions in federal court against a state or state agency.

Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). This same principle applies to state law claims 

brought into federal court under pendent jurisdiction. Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 121 (1984). A state’s waiver of sovereign immunity in its own courts 

does not constitute a waiver of the Eleventh Amendment immunity in the federal courts. Fla. 

Dep’t of Health v. Fla. Nursing Home Assn., 450 U.S. 147, 150 (1981). Because Indiana has not 

consented to the state law claims being litigated in this Court, the Court dismisses them against 

DCS for lack of jurisdiction. 

 Plaintiffs also bring state law claims against defendants Ciboch, Richey, Loomis, and 

Schmidt for intentional infliction of emotional distress; and willful and wanton misconduct. 

These defendants assert statutory immunity, but Plaintiffs argue that even if they are immune 

under Indiana Code 31-25-2-2.5, they are vicariously liable under the ITCA. 
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 Indiana Code 31-25-2-2.5 provides that “DCS officers and employees are not personally 

liable, except to the state, for an official act done or omitted in connection with the performance 

of their duties.” Plaintiffs give no reason why the clear and plain meaning should not be applied 

to the statute. In addition, Plaintiffs’ argument for vicarious liability is inapplicable because 

vicarious liability refers to the liability of an employer, for the torts committed by its employee, 

in the course of employment. In re Aimster Copyright Litigation, 334 F.3d 643, 654 (7th Cir. 

2003). Therefore, as employees of DCS, Ciboch, Richey, Loomis, and Schmidt cannot be 

vicariously liable. Accordingly, the Court dismisses the state-law tort claims against them. 

D. Conclusion 

 For the above reasons, the Court grants Defendants’ motion for judgment on the 

pleadings (DE 43) as follows: 

 the Court dismisses Section 1983 claims against defendants Pence and Bonaventura; 

 the Court dismisses Indiana constitutional claims against all defendants; 

 the Court dismisses Indiana tort claims against DCS without prejudice; and 

 the Court dismisses Indiana tort claims against defendants Ciboch, Richey, Loomis, and 

Schmidt. 

SO ORDERED on September 6, 2016. 

 s/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE