UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DAVID OTTEN and RENEE OTTEN, )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:16-CV-82-PRC

)

LAKE COUNTY SHERIFF’S DEPARTMENT, )

SERGEANT BOSSE in his individual and official )

capacity, OFFICER B. ZABRECKY in his individual )

and official capacity, and SHERIFF JOHN BUNCICH )

in his individual capacity, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants [sic] Sheriff John Buncich and Lake County 

Sheriff’s Department Motion to Dismiss Plaintiffs’ Amended Complaint [DE 26], filed by 

Defendants Sheriff John Buncich and the Lake County Sheriff’s Department (“the Department”) 

on May 25, 2016. Plaintiffs David Otten and Renee Otten filed a response on June 9, 2016, and 

Defendants filed a reply on June 20, 2016.

PROCEDURAL BACKGROUND

Plaintiffs filed an Amended Complaint on April 25, 2016, against Defendants Lake County 

Sheriff’s Department, Sergeant Bosse, Officer B. Zabrecky, and Sheriff John Buncich. Plaintiffs 

allege violations of 42 U.S.C. § 1983 and of Indiana state law. As part of their prayer for relief, 

Plaintiffs request that the Court award punitive damages to Plaintiffs.

In the Amended Complaint, Plaintiffs make the following allegations. On or about 

February 14, 2015, Sergeant Bosse and Officer Zabrecky responded to a radio dispatch in the area 

of 6200 West 85th Street in Crown Point, Lake County, Indiana. Upon arriving, Bosse and 

Zabrecky observed Ms. Otten walking along the road. Bosse and Zabrecky approached Ms. Otten 
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and ordered her into their vehicle so that they could take her home. Bosse and Zabrecky took Ms. 

Otten to her home, and they requested consent to enter the home without advising Ms. Otten of 

her right to consult with an attorney. Ms. Otten did not give her consent. Bosse and Zabrecky then 

entered the home and followed Ms. Otten to her bedroom where Mr. Otten was sleeping. 

Bosse and Zabrecky woke Mr. Otten and ordered him to provide his identification although 

Mr. Otten had not violated any law. In the attempt to obtain Mr. Otten’s identification, Bosse and 

Zabrecky pushed Mr. Otten back into his bed. A fight ensued, and Bosse and Zabrecky used a stun 

gun on Mr. Otten several times and struck him over the head. Mr. Otten was then placed in 

handcuffs. During the altercation, Ms. Otten voiced her displeasure regarding the treatment of her 

husband, and she was arrested. 

Bosse and Zabrecky’s actions were taken as the result of a policy developed and 

implemented by Buncich that required Lake County police officers to demand identification from 

all persons that they come into contact with. Bosse and Zabrecky testified under oath that the 

Department had this policy and that they were acting in accordance with it. In addition, Buncich 

developed and implemented a policy that subjected an individual to arrest if he or she refused to 

provide identification. 

The parties filed forms of consent to have this case assigned to a United States Magistrate 

Judge to conduct all further proceedings and to order the entry of a final judgment in this case. 

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 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-
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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.’”1 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see 

also Tamayo, 526 F.3d at 1082.

ANALYSIS

In the Motion to Dismiss, Buncich contends that he is entitled to dismissal of all claims in 

Counts I through XII because Plaintiffs do not allege that Buncich personally participated in any 

of the acts alleged by Plaintiffs. The Department claims that Plaintiffs’ § 1983 Monell claims 

against it contain boilerplate allegations of de facto municipal policy and do not allege the specific 

pattern or series of incidents necessary to survive a motion to dismiss. The Department also

contends that the state law claims against it in Counts IX, X, XI, and XII do not give fair notice of 

the claims that are asserted and that the claims are not permissible under the Indiana Tort Claims 

 1 Plaintiffs quote McMillan v. Collection Professionals, Inc., 455 F.3d 754, 758 (7th Cir. 2006), for the 

proposition that “[t]he plaintiff’s complaint should survive dismissal if relief could be granted under any set of facts 

that could be proved consistent with the allegations.” However, in 2007, the United States Supreme Court retired the 

“any set of facts” language as “an incomplete, negative gloss on an accepted pleading standard.” Bell Atlantic Corp. 

v. Twombly, 550 U.S. 554, 563 (2007).
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Act. Finally, the Department asserts that the demand for punitive damages must be dismissed 

because such claims are not permitted by law. The Court considers each argument in turn.

A. Claims against Sheriff John Buncich

Buncich, sued only in his individual capacity in the Amended Complaint, argues that 

Plaintiffs fail to state a claim against him in Counts I-XII. His sole argument is that Plaintiffs have 

not alleged personal participation by him, and, therefore, he cannot be held liable under § 1983. 

The theory of respondeat superior does not apply to § 1983 claims. Shields v. Ill. Dep’t. of

Corr., 746 F.3d 782, 790 (7th Cir. 2014). Therefore, to recover damages under § 1983 against 

Buncich individually, Plaintiffs must establish that Buncich “was personally responsible for the 

deprivation of a constitutional right.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); see 

also Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012). To show personal 

involvement, Buncich, as a supervisor, must “know about the conduct and facilitate it, approve it, 

condone it, or turn a blind eye for fear of what [he] might see.” Jones v. City of Chi., 856 F.2d 985, 

992–93 (7th Cir.1988); see also Smith v. City of Chi., 143 F. Supp. 3d 741, 757 (N.D. Ill. 2015). 

“[T]he plaintiff must show that the supervisor’s action or inaction was ‘affirmatively linked’ to the 

deprivation of the plaintiff’s federal rights” Snyder v. Smith, 7 F. Supp. 3d 842, 864 (S.D. Ind. 

2014) (citing Rizzo v. Goode, 423 U.S. 362, 371 (1976)). If a supervisor “devised a deliberately 

indifferent policy that caused a constitutional injury,” then individual liability might flow from 

that act. Lee v. Wexford Health Sources, Inc., No. 13 C 3255, 2016 WL 302151, at *3 (quoting 

Armstrong v. Squadrito, 152 F.3d 564, 581 (7th Cir. 1998)); see also Doyle v. Camelot Car Ctrs, 

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

Plaintiffs do not allege that Buncich personally took part in the alleged misconduct on 

February 14, 2015. However, they do allege that Buncich developed and implemented specific 
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policies, namely a policy to obtain identification from all persons Lake County police officers 

come into contact with and a policy to arrest individuals who refuse to provide identification. 

Plaintiffs allege that Buncich knew or should have known that the policies violate a citizen’s right 

to privacy, would constitute an illegal search and seizure if an individual was arrested for failure 

to provide his or her identification, and would result in making false arrests and subjecting 

individuals to false imprisonment. Plaintiffs also allege that Buncich “acted or failed to act with 

reckless disregard” of the Plaintiffs’ constitutional rights in developing and implementing these 

policies.

Buncich contends that Trowbridge v. Civil City of South Bend, Ind., No. S91-484(RDP), 

1992 WL 559656 (N.D. Ind. Jan. 27, 1992), and Jackson v. Elrod, 655 F. Supp. 1130 (N.D. Ill. 

1987), are analogous to the claims against Buncich and show that the claims should be dismissed. 

These cases, however, are both nonprecedential and differentiable from the allegations in the 

instant litigation. In Trowbridge, the conduct at issue was allegedly “ratified” after the fact by the 

chief of police, and the court found that ratification was not sufficient to show personal 

participation. Trowbridge, 1992 WL 559656, at *3, *4. In the instant matter, however, Buncich is 

alleged to have personally implemented the unconstitutional policy which caused the alleged 

injuries and not to have merely ratified conduct after it occurred.

In Jackson, claims against three defendants in their individual capacity were dismissed 

because the plaintiff made only a “bald assertion that Hardiman, Elrod, and Glotz encouraged, 

authorized, directed, ratified, or acquiesced in their subordinates’ acts,” and the court found that 

this assertion alone does not satisfy the pleading requirement. Jackson, 655 F. Supp. at 1136. Here, 

the allegation of personal participation by Buncich is more fleshed out. The allegation is that 
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Buncich developed and caused to be implemented two specific policies that led to deprivation of 

constitutional rights.

Plaintiffs have sufficiently alleged personal participation by Buncich in his individual 

capacity. The request to dismiss the claims brought under § 1983 based upon illegal search and 

seizure, false imprisonment, and false arrest is denied.

However, Plaintiffs have failed to connect Buncich to their claims of excessive force in 

violation of § 1983. The policies that Plaintiffs describe do not pertain to the use of force, and there 

are no other allegations that Buncich personally participated in the alleged constitutional violation. 

Plaintiffs allege that Buncich knew or should have known that a confrontation between citizens 

and police would be likely to occur if the citizens refused to comply with Buncich’s identification 

policy, but a confrontation in and of itself neither constitutes nor necessarily leads to the use of

excessive force. The request to dismiss the § 1983 excessive force claims against Buncich is 

granted. However, though Buncich requests dismissal with prejudice, the general rule is to dismiss 

without prejudice when a complaint fails to state a claim for relief. See Bogie v. Rosenberg, 705 

F.3d 603, 608 (7th Cir. 2013). There is no indication that any attempt to amend the complaint to 

fix the deficiencies in these claims would be futile. Therefore, the Court dismisses these claims 

without prejudice.

Because Buncich has made only an unsupported assertion unaccompanied by any argument 

that the state law claims against him should be dismissed, the request to dismiss the state law 

claims against Buncich is denied.

B. Counts I Through VIII Against the Lake County Sheriff’s Department

The Department arguesthat the § 1983 Monell claims brought against it in Counts I through

VIII should be dismissed. To state a claim under § 1983, a plaintiff must allege “(1) that defendants
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deprived him of a federal constitutional right; and (2) that the defendants acted under color of state

law.” Lantz v. Office of Jackson Twp. Tr., 938 F. Supp. 2d 810, 822 (N.D. Ind. 2013) (quoting 

Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)).

The suit against the Department is subject to the holding in Monell v. Dep’t of Soc. Services, 

that “a local government may not be sued under § 1983 for an injury inflicted solely by its 

employees or agents.” 436 U.S. 658, 694 (1978). Rather, “to state a § 1983 claim against a 

municipality, the complaint must allege that an official policy or custom not only caused the 

constitutional violation, but was the moving force behind it.” Estate of Sims ex. Rel. Sims v. Cty.

of Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (internal quotation marks omitted) (quoting City of 

Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)); see also Thomas v. Cook Cty. Sheriff’s Dep’t, 

604 F.3d 293, 306 (7th Cir.2010). That is, to state a Monell claim against a municipality, a plaintiff 

must allege that he “(1) [ ] suffered a deprivation of a federal right, (2) as a result of either an 

express municipal policy, widespread custom, or deliberate act of a decision-maker with final 

policymaking authority . . . ; which (3) was the proximate cause of his injury.” King v. Kramer, 

763 F.3d 635, 649 (7th Cir. 2014) (quoting Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 

2002)). The Department argues that Plaintiffs have failed to sufficiently allege a policy to satisfy 

the second prong of this test.

Generally, the allegation of a single incident of unconstitutional activity is not sufficient to 

support the inference that the activity was pursuant to an official policy. See Connick v. Thompson, 

563 U.S. 51, 62 (2011); Williams v. Heavener, 217 F.3d 529, 532 (7th Cir. 2000) (“Ordinarily, one 

incident is not sufficient to establish a custom that can give rise to Monell liability.”). However, 

there is an exception where there is proof that a single incident was caused by an existing, 

unconstitutional municipal policy. City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985) 
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(plurality opinion); Arlotta v. Bradley Center, 349 F.3d 517, 522 (7th Cir. 2003) (quoting the 

plurality opinion of Tuttle with approval).

In the instant case, Plaintiffs allege a single incident of the alleged policy of 

demanding identification. Plaintiffs do not allege any other instances of this alleged policy’s 

enforcement. However, Plaintiffs do allege that Bosse and Zabrecky testified to the existence of 

the Department’s policy to ask for identification for the police report. This is sufficient to allege 

the existence of the identification policy, which gives rise to the § 1983 search and seizure claims.

Though the Department asserts that Plaintiffs fail to allege that the policy is unconstitutional, 

Plaintiffs make such an allegation in paragraph 24 of their Amended Complaint. The Department 

further contends that these claims should be dismissed because alleged actions were not 

discretionary decisions made by a final policy maker as in Pembaur v. City of Cincinnati, 475 U.S. 

469 (1986). However, the fact pattern of Pembaur shows one way for a municipal entity to be held 

liable for a single incident of unconstitutional activity, not the only way. Further, considering that

there are allegations that Buncich, the Lake County Sheriff, implemented the policies at issue, it 

is unclear which part of the Pembaur means of attaching liability the Department argues is not 

met. The Department’s sole argument for dismissal is that Plaintiffs have provided insufficient 

allegations to establish that an unconstitutional policy exists. Because Plaintiffs’ allegations are 

sufficient in this regard, the request to dismiss the § 1983 search and seizure Monell claims is 

denied.

Regarding the alleged policy of arresting those who do not provide identification, however, 

Plaintiffs do not allege anything other than the incident giving rise to this litigation. “[T]he 

plaintiff[s] must plead some fact or facts tending to support [their] allegation that a municipal 

policy exists that could have caused [their] injur[ies].” Strauss v. City of Chicago, 760 F.2d 765 
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(7th Cir. 1985). Plaintiffs do not allege that there is testimony of this policy’s existence or allege 

other instances in which the policy was enforced. The false arrest and false imprisonment Monell

claims are built upon this policy to arrest. Because this policy is not sufficiently alleged to survive 

a motion to dismiss, the motion to dismiss as to the § 1983 false arrest and false imprisonment 

Monell claims is granted. As addressed above, the Court follows the general rule and dismisses 

these claims without prejudice, instead of with prejudice, as the Department requests.

Further, there is no alleged policy supporting the excessive force claims. Plaintiffs have 

not alleged that the excessive force is the result of the identification policy, and, assuming without 

deciding that these claims are connected to the arrest policy, that policy, as shown above, is 

insufficiently pled. The motion to dismiss as to the § 1983 excessive force Monell claims is 

granted, though, once again, the Court dismisses the claims without prejudice.

To the extent Plaintiffs have brought state law claims in Counts V through VIII, the Department 

has not moved to dismiss these claims, and any such claims remain pending.

C. Counts IX Through XII Against the Lake County Sheriff’s Department

In its opening brief, the Department argues that the claims in Counts IX through XII should 

be dismissed because the Counts do not provide fair notice of the claim as required by Federal

Rule of Civil Procedure 8. The Plaintiffs, in their response, provide a clarification of the claims 

they are bringing. The reply brief under this section of argument indicates that Buncich—but not 

the Department—acknowledges that Plaintiffs have clarified their claims. The reply brief 

represents that Plaintiffs’ response indicates that Plaintiffs are only pursuing state law respondeat 

superior claims in these claims and, therefore, Bosse, Zabrecky, and Buncich should be dismissed 

with prejudice from all state law claims and Plaintiffs should only be allowed to pursue state law 

respondeat superior claims against the Department in these counts. The Court will not dismiss 
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these claims against Bosse and Zabrecky because neither of these Defendants has made a motion 

to dismiss. As to Buncich, the request is denied because this argument is raised for the first time 

in the reply brief and is procedurally improper. It was the Department, and not Buncich, that moved 

for dismissal based upon lack of fair notice.

The Department argues in the opening brief that the state law claims in Counts IX through 

XII should be dismissed as to the Department because if Plaintiffs pursue individual liability 

against the officers because Plaintiffs alleged the torts occurred outside the scope of employment, 

Plaintiffs cannot seek entity liability against the Department. Defendant identifies an Indiana code 

provision, which provides that “[a] lawsuit alleging that an employee acted within the scope of the 

employee’s employment bars an action by the claimant against the employee personally.” Inc. 

Code § 34-13-3-5(b). This statute does not provide a basis for dismissing the claims against the 

Department, that is, the employer. Instead, the statute contemplates dismissal of claims as to

employees. The employees, however, are not asking for dismissal.

After the Plaintiffs’ clarification in their response brief of their claims in Counts IX through 

XII, the Department does not renew its request for the claims to be dismissed as to it. Additionally, 

in the joint reply brief, the Department’s co-defendant, Buncich, acknowledges that the state law 

claims can be brought against the Department because Plaintiffs have clarified the claims that they 

are bringing in Counts IX through XII. Because the Department’s cited statute is inapplicable to 

its request and because the Department appears to have acquiesced that Plaintiffs may bring these 

claims against it, the request to dismiss the state law claims against the Department in Counts IX 

through XII is denied.
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D. Punitive Damages against the Lake County Sheriff’s Department

The Department argues that Plaintiffs’ request for punitive damages should be dismissed.

Plaintiffs concede that punitive damages are not appropriate remedies against a government entity.

Because the parties are in agreement that these claims cannot be brought against the Department, 

the Court dismisses with prejudice all claims for punitive damages filed by Plaintiffs against the 

Department.

CONCLUSION

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

Defendants’ Motion to Dismiss [DE 26]. 

The Court DISMISSES without prejudice Counts III and IV as to Defendants Sheriff 

John Buncich and the Lake County Sheriff’s Department and the § 1983 Monell claims—but not 

any state law claims—against the Lake County Sheriff’s Department contained in Counts V, VI, 

VII, and VIII. The Court DISMISSES with prejudice all claims for punitive damages against the 

Lake County Sheriff’s Department. 

The case REMAINS PENDING on Plaintiff’s Amended Complaint as to all other claims. 

SO ORDERED this 29th day of November, 2016.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERY

UNITED STATES DISTRICT COURT