ATTORNEY FOR APPELLANTS
: ATTORNEYS FOR APPELLEES
BOARD OF TRUSTEES OF PURDUE ANDREW P. WIRICK UNIVERSITY, PURDUE UNIVERSITY,
Hume Smith Geddes Green & Simmons, LLP JOHN SAUTTER, MARVIS BOSCHER,
Indianapolis, Indiana CHAD JOHNSON, DAVID G. LEWIS, PURDUE UNIVERSITY POLICE DEPARTMENT, PUPD OFFICER KEN
COX, and PUPD OFFICER FRED DAVIS:
JOHN M. STUCKEY
LAURA L. BOWKER
Stuart & Branigin, LLP
ATTORNEYS FOR APPELLEES
OFFICE OF THE SHERIFF, TIPPECANOE COUNTY, INDIANA, and TIPPECANOE COUNTY SHERIFFS DEPUTY ANDREW
DOUGLAS J. MASSON
Hoffman, Luhman & Masson, P.C.
COURT OF APPEALS OF INDIANA
DONALD M. SEVERSON and SANDRA )
SEVERSON, Individually and as Personal )
Representatives of the Estate of Jay T. )
Severson, Deceased, )
vs. ) No. 79A05-0112-CV-559
BOARD OF TRUSTEES OF PURDUE )
UNIVERSITY, PURDUE UNIVERSITY, )
JOHN SAUTTER, MARVIS BOSCHER, )
CHAD JOHNSON, DAVID G. LEWIS, in their )
individual capacities, PURDUE UNIVERSITY )
POLICE DEPARTMENT, PURDUE )
UNIVERSITY POLICE DEPARTMENT OFFICER )
KEN COX, PURDUE UNIVERSITY POLICE )
DEPARTMENT OFFICER FRED DAVIS, in their )
individual capacities, OFFICE OF THE SHERIFF, )
TIPPECANOE COUNTY, INDIANA, and )
TIPPECANOE COUNTY SHERIFFS )
DEPARTMENT DEPUTY ANDREW WARREN, )
in his individual capacity, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-0102-CP-055
November 7, 2002
A Purdue University freshman brutally murdered his resident-advisor Jay Severson after Jay had
reported the freshmans cocaine possession to the police. Jays parents sued Purdue,
Purdues Board of Trustees, four Purdue employees, and law enforcement agencies and officers
who, at the time of the murder, were investigating the freshmans alleged drug
dealing. The trial court granted summary judgment to all the defendants on
each of the Seversons federal and state claims. We agree that none
of the defendants were liable under federal or state law for Jays death.
Twenty-seven-year-old Jay Severson was a graduate student at Purdue University for the 1996
fall semester. In addition to pursuing his course work, Jay was employed
by Purdue as a residential advisor for one of Purdues residence halls.
His duties included counseling student residents and, when necessary, reporting student-resident criminal violations
to the Purdue University Police Department (PUPD). He reported one such violation
on September 15, having observed a bag of marijuana in the room of
Matthew Schulz, one of Jays floor residents. The police arrived and took
Schulz, Jay, and the marijuana to the police station, where Schulz claimed that
the marijuana was not his but belonged to a friend.
Less than a month later, on October 11, Jay returned to the PUPD
where he met with Officer Ken Cox. Jay told Officer Cox that
he had received third hand information from one of his residents about the
possible use of drugs on the floor. Appellants App. p. 251.
He identified Schulz and Schulzs roommate, Jerrod Eskew, as possibly being involved with
narcotics. Jay also noted that his source of information wished not to
Four days after meeting with Officer Cox, Jay entered Schulz and Eskews room
to check the smoke detector. Eskew and a friend, Jamin Willoughby, were
the only ones present in the room at the time. Upon entering,
Jay noticed Eskew hide something under his hat. When he questioned Eskew
about what was under the hat, Eskew uncovered the cocaine. According to
Willoughby, Eskew threatened to kill Jay if Jay told the police about the
cocaine. Although Jays encounter with Eskew took place at 7:30 p.m., Jay
waited until 8:40 p.m. to notify the PUPD. In a police report
filed the same night, Jay explained the reason for the delay:
I didnt want to mess up what the police already had going on
so I B.S.ed with them and told them that I would be quiet
about it. I told [PUPD Officer] Ken Cox @ 8:40 [p.m.] and
he wanted to move on it right away.
Appellants App. p. 246.
The police immediately proceeded to Schulz and Eskews room, but Eskew had fled
the room by the time they arrived. While the police were searching
the room and Eskews car, Eskew hid in Willoughbys room, which was located
in the same residence hall. At around 2:00 a.m. that morning, Willoughby
drove Eskew to Crawfordsville where Eskew obtained a shotgun and sawed off the
barrel. The two returned to the residence hall that afternoon. Eskew
walked to Jays room and shot Jay, killing him almost instantly. Eskew
then turned the gun on himself and committed suicide.
On April 25, 2001, the Seversons, individually and as personal representatives of Jays
estate, filed their third amended complaint for damages resulting from Jays death.
The complaint named the Board of Trustees of Purdue University, Purdue University, and
four Purdue employees in their individual capacities. Appellants App. p. 161.
The four Purdue employees are as follows:
(1) John Sauttervice president of the residence halls and Director of Residence Halls;
(2) Marvis Boscherassistant director for residential life for Purdue;
(3) Chad Johnsonmanager for the residence hall in which Jay was murdered; and
David G. Lewisassistant manager for the same.
The complaint also included the law enforcement agencies and personnel involved in investigating
Eskews possible drug dealing from the residence hall:
(1) The PUPD and PUPD Officers Ken Cox and Fred Davis in their individual
(2) The Office of the Sheriff, Tippecanoe County, Indiana, and Tippecanoe County Sheriffs Deputy
Andrew Warren, in his individual capacity.
The Seversons brought a broad assortment of federal and state claims. Under
their federal § 1983 claims,
See footnote the Seversons contended that they were deprived of
their constitutional liberty interest in maintaining a relationship with their son. Jays
estate, according to the complaint, suffered lost income for Jays life expectancy and
hedonic damages for the non-economic value of being alive as a result of
being deprived of his constitutional rights. Appellants App. p. 175. As
for the state law claims, the Seversons asserted negligence, intentional infliction of emotional
distress, negligent infliction of emotional distress, negligent hiring and supervision, in addition to
violations of Article I, Sections 1, 12, and 21 of the Indiana Constitution.
The Seversons also incorporated a claim for a declaratory judgment that the
Defendants violated the constitutional rights of the Plaintiffs. Appellants App. p. 175.
DISCUSSION AND DECISION
In response, Purdue (including the Board of Trustees, the four individual employees, the
PUPD, and the two PUPD officers) filed a motion for summary judgment.
The Tippecanoe County Sheriffs Office and Tippecanoe County Sheriffs Deputy Andrew Warren (collectively,
the Tippecanoe County defendants) filed a separate motion for summary judgment. On
July 13, 2001, the Tippecanoe County defendants filed a motion to strike the
entire affidavit of David L. Johnston, the Seversons expert witness who was used
to oppose the motions for summary judgment. Three days later on July
16, 2001, all the defendants joined in filing a motion to strike portions
of other evidentiary materials submitted by the Seversons in their memorandum in opposition
to summary judgment. In turn, the Seversons filed a motion to strike
portions of the reply briefs submitted by Purdue and the Tippecanoe County defendants
along with designated evidence offered in support of Purdues reply brief.
The trial court eventually granted both motions for summary judgment against the Seversons
on all their claims. However, the trial court denied all the motions
to strike. The Seversons now appeal the grant of summary judgment on
both motions as well as the denial of their motion to strike.
The Tippecanoe County defendants appeal the denial of the July 13 motion to
strike, while Purdue appeals the denial of the July 16 motion to strike.
I. Standard of Review
The party appealing from a summary judgment decision has the burden of persuading
the court that the grant or denial of summary judgment was erroneous.
Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind. 2001).
Summary judgment is appropriate only if the pleadings and evidence sanctioned by the
trial court show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Ind. Trial Rule 56(C). The review of a summary judgment
motion is limited to those materials designated to the trial court. Ind.
Trial Rule 56(H); Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.
1993). On a motion for summary judgment, all doubts as to the
existence of material issues of fact must be resolved against the moving party.
Owens Corning, 754 N.E.2d at 909.
II. The Seversons § 1983 Claims
A. § 1983 Person
Before considering whether a defendant has deprived a plaintiff of a right under
the color of law, it is first necessary to determine whether a particular
defendant is a person amenable to suit under § 1983. That statute
allows citizens to sue government officials for violations of federal rights:
Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer for an act
or omission taken in such officers judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added). The precursor to § 1983§ 1
of the Civil Rights Act of 1871was a congressional enactment responding to the
wide-spread deprivations of civil rights in the Southern States and the inability or
unwillingness of authorities in those States to protect those rights or punish wrongdoers.
Will v. Mich. Dept of State Police, 491 U.S. 58, 66 (1989)
(quoting Felder v. Casey, 487 U.S. 131, 147 (1988)). The legislative history
of the word person in § 1983 indicates Congress intended to subject state
officers to suit but not States of the Union. Id. 68-69.
A review of U.S. Supreme Court precedent reveals three basic factors that determine
whether a particular entity is a person under § 1983. Chief among
these factors is the type of governmental entity being sued, that is, whether
the entity is a state, state agency (arm of the state),
See footnote state official,
municipality, municipal official, or some other local governmental unit or political subdivision.
A second factor is whether the plaintiff seeks retrospective (monetary) or prospective (injunctive)
relief. A third factor, when dealing with a suit against a state
official, is whether the plaintiff brings an official-capacity claim or personal-capacity (individual-capacity)See footnote claim.
Both a municipality and a municipal official sued in his official capacity are
persons amenable to suit under § 1983 for retrospective (monetary) and prospective (injunctive)
See Monell v. Dept of Soc. Servs., 436 U.S. 658, 690
(1978) (holding that § 1983 applies to municipalities and other local government units);
Brandon v. Holt, 469 U.S. 464 (1985) (holding that § 1983 applies to
a municipal official sued in his official capacity). As for a state
or state agency, neither may be sued as a person under § 1983,
no matter what reliefretrospective or prospectiveis requested. Will, 491 U.S. at 64
(a state is not a § 1983 person); Howlett ex rel. Howlett v.
Rose, 496 U.S. 356, 365 (1990) (arm of the state not a §
1983 person). If a plaintiff requests retrospective relief, then a state official
sued in his official capacity is also not a person under § 1983.
See Will, 491 U.S. at 71. If, on the other hand,
a plaintiff requests prospective relief, then a state official may be considered a
person under § 1983. See id. at 71 n.10.
The inapplicability of § 1983 to particular defendants parallels Eleventh Amendment
See footnote protections from
suit. The Eleventh Amendment bars a state from being sued in its
own name regardless of whether a plaintiff seeks retrospective or prospective relief.
Alabama v. Pugh, 438 U.S. 781, 782 (1978). Though the Eleventh Amendment
does not apply in state courts, Hilton v. S.C. Pub. Rys. Commn, 502
U.S. 197, 205 (1991), the relief available in federal and state courts under
§ 1983 is deemed the same. Howlett ex rel. Howlett, 496 U.S.
at 365 ([A] State and arms of [a] State, which have traditionally enjoyed
Eleventh Amendment immunity, are not subject to suit under § 1983 in either
federal court or state court.); 1B Martin A. Schwartz & John E. Kirklin,
Section 1983 Litigation: Claims and Defenses § 8.14, at 196-97 (3d ed. 1997)
([T]he relief available (and unavailable) against state governments and agencies in state and
federal court § 1983 actions is the same. The Supreme Courts decision
in Howlett [ex rel. Howlett] v. Rose makes clear that state law may
neither expand nor contract the congressionally established contours of § 1983 and its
defenses. (footnote omitted)). Hence, neither a state nor a state agency is
a person under § 1983 even when sued for prospective relief in state
courtwhere the Eleventh Amendment has no force.
A state official, on the other hand, is a person under § 1983
when sued in his personal capacity for actions taken under color of state
law. Hafer v. Melo, 502 U.S. 21, 27 (1991). [O]fficers sued
in their personal capacity come to court as individuals. A government official
in the role of personal-capacity defendant thus fits comfortably within the statutory term
person. Id. Under the law of the Seventh Circuit, when a
complaint alleges the tortious conduct of an individual acting under color of state
law, an individual capacity suit plainly lies, even if the plaintiff failed to
spell out the defendants capacity in the complaint. Hill v. Shelander, 924
F.2d 1370, 1374 (7th Cir. 1991). To determine whether a plaintiff brings
an official-capacity suit, personal-capacity suit, or both, a court should look to the
relief requested and the nature of the defendants conduct alleged. Id.
In sum, five general rules resolve whether an entity is a person amenable
to suit under § 1983:
(1) A municipality, municipal official, or other local governmental unit or political subdivision may
be sued for retrospective or prospective relief.
(2) A state or state agency (arm of the state) may not be sued
as a person under § 1983, no matter what relief is requested.
(3) A state official sued in his official capacity is not a person under
§ 1983 when sued for retrospective relief. But a state official sued
in his official capacity is a person under § 1983 when sued for
(4) A state official sued in his personal (individual) capacity for retrospective relief is
a person amenable to suit under § 1983.
(5) If an entity would enjoy Eleventh Amendment immunity in federal court, it will
not be considered a § 1983 person in state court, even though the
Eleventh Amendment has no force in state court.1. Purdue University
Though the briefs on appeal tend to lump the defendants into two groups(1)
the Purdue defendants and (2) the Tippecanoe County defendantsthe defendants here actually fall
into seven different groups for purposes of determining whether they are § 1983
persons. In accord with the principles set out above, each of the
seven groups will be examined for amenability to suit under § 1983, beginning
with the institution Purdue University.
The Seversons level two main arguments in favor of regarding Purdue as a
person under § 1983. First, relying on Hess v. Port Authority Trans-Hudson
Corp., 513 U.S. 30 (1994), they maintain that an examination of the factual
record is warranted to determine whether Purdue is a state agency, notwithstanding several
federal court of appeals decisions (including the Seventh Circuit) concluding state universities are
arms of a state. Second, according to the Seversons, [t]o the extent
Plaintiffs Third Amended Complaint seeks declaratory relief, the issue of personhood does not
bar such relief, as official capacity actions for prospective relief are not treated
as actions against the state. Appellants Br. p. 20 (alteration added) (quoting
Will, 491 U.S. at 71 n.10).
The bulk of the Seversons argument in favor of considering Purdue a person
under § 1983 rests on their interpretation of Hess v. Port Authority Trans-Hudson
Corp. In Hess, the U.S. Supreme Court concluded that the Port Authority
Trans-Hudson Corporation (Port Authority) was not a state agency entitled to Eleventh Amendment
protection from suit. 513 U.S. at 33. New Jersey and New
York created the Port Authority in 1921 when Congress consented to the compact
between the two states in exercise of its authority under the Interstate Compact
Id. at 35. The Supreme Court relied on a presumption
that a Compact Clause agency does not qualify for Eleventh Amendment immunity [u]nless
there is good reason to believe that the States structured the new agency
to enable it to enjoy the special constitutional protection of the States themselves,
and that Congress concurred in that purpose. Id. at 43-44 (alteration in
original) (quoting Lake County Estates, Inc. v. Tahoe Regl Planning Agency, 440 U.S.
391, 401 (1979)).
The Hess Court believed that protecting state treasuries from federal-court judgments was
one of two main reasons behind ratification of the Eleventh Amendment. Id.
at 48. The other was protecting the dignity of the sovereign state
from federal-court judgments. Id. at 47. To the Courts thinking, the
Port Authority was structured to be financially self-sustaining and that its resulting fiscal
independence protected the treasuries of its parent states from liability. Id. at
50. The Port Authoritys ability to pay judgments without resort to its
parent state treasuries did not implicate the fiscal basis for the Eleventh Amendments
adoption. Id. Nor did bringing into federal court a bi-state entity
created by two sovereign states and the Congress impinge on the dignity of
either parent state. Id. at 47. Requiring the Port Authority, therefore,
to answer in federal court for damages suffered by injured railroad workers (under
the Federal Employers Liability Act) did not touch the concernsthe States solvency and
dignitythat underpin the Eleventh Amendment. Id. at 52.
Based on Hess, the Seversons contend that an examination of the factual record
is now required to assess Purdues status as a § 1983 person.
Appellants Br. p. 20. The prevailing factor, according to the Seversons, in
an assessment of any entitys person status is the extent to which the
state bears legal responsibility for the debts of the entity. Appellants Br.
p. 21. The Seversons assert, Indiana will never have to write out
a check for any judgment paid in this case. Appellants Br. p.
22. Then, the Seversons launch into a litany of unsupported statements about
Purdues fiscal make-up:
(1) Purdue derives a significant source of income from private not-for-profit foundations.
(2) The foundations receive gifts from private individuals as well as profits from real
(3) Tuition fees are paid by private individuals.
(4) None of this income comes from State offices.
(5) The Attorney General has never entered an Appearance on behalf of Purdue.
Appellants Br. p. 22. These unsupported statements are capped with the conclusion:
All of these indicia of non-state involvement provide ample reasons why summary judgment
should have been denied. Appellants Br. p. 22.
In addressing the Seversons contention, we first note that a number of pre-Hess
decisions handed down by the Seventh Circuit and Indiana federal district courts held
that public universities are arms of the state and, therefore, are not persons
under § 1983. Kashani v. Purdue Univ., 813 F.2d 843,
848 (7th Cir. 1987); Colburn v. Trustees of Ind. Univ., 739 F. Supp.
1268, 1280 (S.D. Ind. 1990), affd, 973 F.2d 581 (7th Cir. 1992); Wellman
v. Trustees of Purdue Univ., 581 F. Supp. 1228, 1230-31 (N.D. Ind. 1984)
(holding that Purdue and its Board of Trustees are instrumentalities of the state
and, therefore, entitled to Eleventh Amendment immunity). The Seventh Circuit observed in
Kashani that every circuit court of appeals to decide the issue held in
favor of Eleventh Amendment immunity for state universities. 813 F.2d at 845
(citing the decisions of the First, Sixth, Ninth, and Tenth Circuits).
If Hess did call into question the continuing validity of these holdings, the
Supreme Court put any alleged doubts to rest in Regents of the University
of California v. Doe, 519 U.S. 425 (1997). Regents, decided three years
after Hess, held that an indemnity agreement between the federal government and the
University of California did not divest the university of its Eleventh Amendment immunity
from suit. Id. at 426. In distinguishing Hess, the Court noted
that Hess involved a bistate entity and that both legally and practically neither
of the relevant States would have been obligated to pay a judgment obtained
against the bistate entity. Id. at 430 (quoting Hess, 513 U.S. at
51-52). The Court reasoned that an entitys potential legal liabilitynot its ability
to require a third party to reimburse itis relevant to the inquiry into
whether a particular entity is an arm of the state. The Regents
Court further explained:
Ultimately, of course, the question whether a particular state agency has the same
kind of independent status as a county or is instead an arm of
the State, and therefore one of the United States within the meaning of
the Eleventh Amendment, is a question of federal law. But that federal
question can be answered only after considering the provisions of state law that
define the agencys character.
Id. at 430 n.5 (emphasis added). 2. Purdue Board of Trustees
A number of Indiana statutesby creating Purdue itself, establishing its powers, and funding
its missiondefine Purdues character as an arm of the State. See, e.g.,
Ind. Code §§ 20-12-35-1 to -3 (establishing Purdue as a state-created land grant
college in the 1800s); Ind. Code § 20-12-37-2 (granting the Governor of Indiana
authority to appoint ten of Purdues thirteen trustees); Ind. Code §§ 20-12-1-1, -2
(recognizing that appropriations from the General Assembly support Purdue and establishing the powers
of Purdue trustees); Ind. Code §§ 4-12-1-2(d), -7 (requiring Purdue to submit annual
financial statements on expenditures and a statement of necessary expenditures for the prospective
Moreover, as the Regents Court made clear, determining whether an entity is an
arm of the state is a question of federal law. In 2000,
the Seventh Circuit decided that very federal question in favor of a public
university seeking status as an arm of the state. The court in
Power v. Summers held that Vincennes University was an arm of the state.
226 F.3d 815, 818 (7th Cir. 2000). This conclusion was based
on: (1) the universitys creation by Indiana statute, (2) the fact that two-thirds
of Vincennes Universitys budget comes from the state, and (3) nine of the
fourteen trustees are appointed by the governor. Id. The Power court,
furthermore, cited pre-Hess precedent, which established that other Indiana state universities are arms
of the state for purposes of the Eleventh Amendment. Id. (citing Kashani,
813 F.2d at 845, and Shelton v. Trustees of Ind. Univ., 891 F.2d
165, 166 (7th Cir. 1989)).
In light of (1) the holding in Regents, (2) an examination of relevant
Indiana statutes, and (3) Powers holding and reaffirmation of pre-Hess precedent, Purdue is
properly classified an arm of the state for purpose of § 1983 claims.
As an arm of the state, Purdue is not a § 1983
person amenable to § 1983 claims.
Given that Purdue is not subject to suit under § 1983, the next
question to be addressed is the proper disposition of § 1983 claims against
Purdue. Was the appropriate disposition grant of summary judgment or should it
have been dismissal of the § 1983 claims against Purdue itself? The
answer depends on whether a court has subject matter jurisdiction over a §
1983 claim asserted against a non-§ 1983 person. The Seventh Circuit, in
Kashani, affirmed the dismissal of § 1983 claims against Purdue for lack of
subject matter jurisdiction. 813 F.2d at 844, 848. Subsequently, in Power,
the Seventh Circuit noted that the proper disposition of § 1983 claims against
a state is dismissal because a state is not person under § 1983.
226 F.3d at 818 (citing Vt. Agency of Natural Res. v. U.S.,
529 U.S. 765, 770, 788 (2000) (holding that dismissal of claim against state
agency was appropriate because it was not a person amenable to suit under
the federal False Claims Act for purposes of qui tam liability)).
In the instant case, challenging Purdues status as a § 1983 person was
an attack on the courts subject-matter jurisdiction over the § 1983 claim against
Purdue. See Stewart v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d
542, 544 (Ind. Ct. App. 2002). An attack on a courts subject
matter jurisdiction cannot form the basis of a motion for summary judgment.
Perry v. Stitzer Buick, GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994).
[W]hen not pled in the answer, the appropriate vehicle for such a challenge
is a motion to dismiss for lack of subject matter jurisdiction under Indiana
Trial Rule 12(B)(1). Id. When Purdue filed its motion for summary
judgment, claiming it was not a § 1983 person, the trial court should
have treated it as a motion to dismiss for lack of subject matter
jurisdiction. See id.
The lack of subject matter jurisdiction may be raised at any time, and
either the trial court or the appellate court is required to consider the
issue sua sponte if it is not questioned by the parties. Town
Council of New Harmony v. Parker, 726 N.E.2d 1217, 1227 (Ind.) (Where lack
of subject matter jurisdiction in the original tribunal is apparent from the record,
it is the duty of the reviewing court to raise and determine the
issue sua sponte.), amended on rehg on other grounds by 737 N.E.2d 719
(Ind. 2000). In the instant case, neither party raised the issue of
subject matter jurisdiction and the requirement of dismissal of § 1983 claims against
Purdue. Abiding by our duty as a reviewing court we have raised
the issue of Purdues § 1983 status and subject matter jurisdiction sua sponte.
Because Purdue is not amenable to § 1983 claims, we will treat
Purdues motion for summary judgment as a motion to dismiss § 1983 claims
against it for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1).
See Stewart, 767 N.E.2d at 545 ([E]ven if the trial court had
erred in treating this issue as a matter of summary judgment, this court
would treat Kingsley Terraces motion for summary judgment as a motion to dismiss
for lack of subject matter jurisdiction under T.R. 12(B)(1).). Accordingly, we reverse
the entry of summary judgment in favor of Purdue on the Seversons §
1983 claims and remand for dismissal of those same claims against the university.
The Seventh Circuit regards a board of trustees of a state university as
an entity separate from the state university itself. See Shelton, 891 F.2d
165 (acknowledging that the Eleventh Amendment bars § 1983 claims for money damages
against Indiana University trustees in their official capacities but does not bar §
1983 claims for injunctive relief against the same trustees in their official capacities);
Kashani, 813 F.2d at 844, 848 (affirming dismissal of all § 1983 claims
against Purdue University but reversing dismissal of § 1983 claimsfor injunctive reliefagainst trustees
in their official capacities). Even though the Seversons did not distinguish Purdues
Board of Trustees from the university itself for purposes of § 1983, federal
case law interpreting § 1983 does so.
The Seversons sued the Board of Trustees of Purdue University as a group,
rather than naming the members of the Board individually. We, therefore, will
consider the § 1983 claims against the Board of Trustees as claims against
the board members in their official capacities. As was made clear in
Will, state officials acting in their official capacities are not subject to suits
for retrospective relief. Will, 491 U.S. at 71. They may be
sued only in their official capacity for prospective relief. See id. at
71 n.10 (noting that a § 1983 claim for injunctive relief against a
state official in his official capacity is permitted under § 1983). In
their third amended complaint, the Seversons requested a declaratory judgment from this Court
that the Defendants violated the constitutional rights of the Plaintiffs. Appellants App.
p. 175. We will treat their § 1983 claim for declaratory relief
as a claim for prospective relief against the members of the Board of
Trustees in their official capacities. In sum, for purposes of § 1983
claims of prospective relief against them in their official capacities, the members of
the Board of Trustees are § 1983 persons.
3. Purdue Employees: Sautter, Boscher, Johnson, and Lewis
The Seversons sued Sautter, Boscher, Johnson, and Lewis in their individual capacities, assuming
that the four men were state officials. Appellants App. p. 161.
In addition, the complaint asserted that the four men through their actions and
official policies and customs created a dangerous situation by requiring residential advisors to
investigate and confront suspected drug offenders. Appellants App. p. 172-73. Having
lumped all the Purdue employees into one category, Purdue did not address the
propriety of personal-capacity claims brought against state officials under § 1983. As
noted above, a state official may be sued in his official capacity for
prospectivenot retrospectiverelief. A state official sued in his personal capacity, on the
other hand, is a person under § 1983 even when money damages are
requested. Hafer, 502 U.S. at 27 ([O]fficers sued in their personal capacity
come to court as individuals. A government official in the role of
personal-capacity defendant thus fits comfortably within the statutory term person.). [When a]
complaint alleges the tortious conduct of an individual acting under color of state
law, an individual capacity suit plainly lies, even if the plaintiff failed to
spell out the defendants capacity in the complaint. Hill, 924 F.2d at
1374. Sautter, Boscher, Johnson, and Lewis are § 1983 persons for retrospective
and prospective relief for actions taken in their individual capacities.
4. Purdue University Police Department
No party cited any authority addressing whether police departments, university or otherwise, are
persons amenable to suit under § 1983. Nor did any party distinguish
the PUPD from Purdue University itself in their respective analyses of § 1983
person status. At oral argument, the Seversons conceded that the PUPD was
part of Purdue. According to a treatise focusing solely on §
1983 litigation, Numerous lower court decisions hold that municipal departments, commissions and associations,
such as police, sheriff, and corrections departments, are not suable under § 1983.
1B Schwartz & Kirklin, supra, § 5.2, at 486 (citing seventeen lower
federal court decisions holding that police and corrections departments are not § 1983
persons). It appears, then, that if the PUPD is considered part of
Purdue, it is entitled to the same immunity as the university. Moreover,
even if the PUPD is considered a separate entity from Purdue University, numerous
lower federal courts have held that police departments are not persons under §
1983. See id. Either way, the PUPD is not a §
1983 person. Accordingly, we reverse the summary judgment granted in favor of
the PUPD on the Seversons § 1983 claims and remand for dismissal of
those same claims against the PUPD.
5. Purdue University Police Department Officers Cox and Davis
While a police department may not be a person under § 1983, a
law enforcement officer may be considered a § 1983 person as long as
the officer acted under color of state law in depriving a person of
his rights under the U.S. Constitution or federal statute. See West v.
Atkins, 487 U.S. 42, 50 (1988) ([G]enerally, a public employee acts under color
of state law while acting in his official capacity or while exercising his
responsibilities pursuant to state law.). Again, no party discussed the applicability of
§ 1983 person status to PUPD Officers Cox and Davis apart from Purdue
itself. For the same reasons Purdue employees Sautter, Boscher, Johnson, and Lewis
are § 1983 persons, PUPD Officers Cox and Davis are § 1983 persons.
See supra Part II.A.3.
6. Office of the Sheriff, Tippecanoe County, Indiana
The Seversons concede in their Appellants brief, The Tippecanoe County Defendants are correct
that the Office of the Sheriff of Tippecanoe County, Indiana should not be
held liable under 42 U.S.C. § 983 [sic]. The only claims Plaintiffs
are prosecuting against the Office of the Sheriff of Tippecanoe County, Indiana are
under state common and Constitutional law. Appellants Br. p. 37. Because
of their concession and the absence of any argument in their brief about
the § 1983 person status of the Office of the Sheriff, we decline
to address the issue. We will note, however, that the Seventh Circuit
has regarded the Office of the Sheriff as a § 1983 person when
the sheriff performs duties as the principal executive officer or chief law enforcement
officer of the county. Scott v. OGrady, 975 F.2d 366, 371 (7th
Cir. 1992). A sheriff may, however, act as an arm of the
state depending on the duties being performed. See id.
7. Tippecanoe County Sheriffs Department Deputy Warren
For the same reasons Purdue employees Sautter, Boscher, Johnson, and Lewis are §
1983 persons, Deputy Warren is a person under § 1983. See supra
8. Summary of § 1983 Person Status
In sum, Purdue University and the PUPD are not § 1983 persons, so
the § 1983 claims against those entities are dismissed for lack of subject
matter jurisdiction. The Seversons do not challenge the summary judgment granted in
favor of the Office of the Sheriff of Tippecanoe County on the §
1983 claims, though it appears the Office of the Sheriff may be a
§ 1983 person depending on the duties being performed. Therefore, we will
not disturb the summary judgment entered in favor of the Office of the
Sheriff of Tippecanoe County on the § 1983 claims. The only entities
which remain amenable to the instant suit under § 1983 are: (1) the
members of the Purdue University Board of Trustees for actions taken in their
official capacities subject to prospective relief; (2) Purdue employees Sautter, Boscher, Johnson, and
Lewis; (3) PUPD Officers Cox and Davis; and (4) Tippecanoe County Sheriffs Deputy
Warren. We address below the Seversons claim that these four groups of
defendants deprived Jay and them of their respective constitutional rights.
B. Substantive Due Process Deprivation
As personal representatives, the Seversons bring § 1983 claims on behalf of Jays
estate for the alleged deprivation of his substantive due process rights. In
addition, they bring § 1983 claims on their own behalf, maintaining that they
were deprived of their substantive due process right to a relationship with their
adult son. Their claims for personal deprivation are permitted by Bell v.
City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). In Bell, the
Seventh Circuit held that a father could recover under § 1983 for the
unlawful breach of the parent-child relationship by virtue of the childs death when
his twenty-three-year-old son suffered an alleged wrongful death. Id. at 1244.
The Seversons have alleged a substantive due process deprivation based solely on the
fact of Jays death. It follows that if none of the defendants
deprived Jay of his substantive due process rights, then the Seversons could not
have been deprived of their substantive due process rights.
There are two basic elements of a § 1983 claim. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1)
the defendant deprived the plaintiff of a right secured by the Constitution and
the laws of the United States, and (2) the defendant acted under color
of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051
(7th Cir. 1996). The Seversons claim of substantive due process deprivation centers
on governmental liability for the harmful act of a third party. In
essence, the Seversons allege that the state officials failed in their duty to
protect Jay from Eskew.
Any examination of governmental liability for failure to protect a citizen from third-party
criminal attacks necessarily begins with DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189 (1989). In DeShaney, the U.S. Supreme Court made plain
the governments responsibility for protecting citizens from one another:
[N]othing in the language of the Due Process Clause itself requires the State
to protect the life, liberty, and property of its citizens against invasion by
private actors. The Clause is phrased as a limitation on the States power
to act, not as a guarantee of certain minimal levels of safety and
security. It forbids the State itself to deprive individuals of life, liberty, or
property without due process of law, but its language cannot fairly be extended
to impose an affirmative obligation on the State to ensure that those interests
do not come to harm through other means. Nor does history support such
an expansive reading of the constitutional text. . . . Its purpose
was to protect the people from the State, not to ensure that the
State protected them from each other. The Framers were content to leave the
extent of governmental obligation in the latter area to the democratic political processes.
489 U.S. at 1003 (citations omitted) (emphasis added). The Seversons acknowledge that
in general the government does not have a duty to protect citizens from
one another. They contend, however, that two exceptions to the general rule
apply in the instant case: (1) the state-created danger (snake-pit) exception and (2)
the special relationship exception. 1. State-Created Danger / Snake Pit
The Seversons first contend that the four Purdue employees created a snake pit
in the form of a residential advisor program because residential advisors were required
to perform inherently dangerous drug-enforcement duties. According to the Seversons, these inherently
dangerous duties, coupled with inadequate training and supervision, created a reasonably foreseeable risk
that a confrontation between a [residential advisor] and an advisee concerning the latters
drug use could escalate to violence and even, as in this case, death.
Appellants Br. p. 24.
The snake-pit moniker apparently originated from Bowers v. DeVito, 686 F.2d 616 (7th
Cir. 1982). Acknowledging that the line between state action and inaction is
indistinct, the Bowers court wrote, If the state puts a man in a
position of danger from private persons and then fails to protect him, it
will not be heard to say that its role was merely passive; it
is as much an active tortfeasor as if it had thrown him into
a snake pit. Id. at 618. In the same opinion, however,
the court made clear that a government actor would generally not be held
responsible for the criminal acts of third parties:
There is a constitutional right not to be murdered by a state officer,
for the state violates the Fourteenth Amendment when its officer, acting under color
of state law, deprives a person of life without due process of law.
But there is no constitutional right to be protected by the state
against being murdered by criminals or madmen. It is monstrous if the
state fails to protect its residents against such predators but it does not
violate the due process clause of the Fourteenth Amendment or, we suppose, any
other provision of the Constitution. The Constitution is a charter of negative
liberties; it tells the state to let people alone; it does not require
the federal government or the state to provide services, even so elementary a
service as maintaining law and order.
Id. (emphasis added). The Bowers court held that the government did not
put the victim in the position of danger; rather, it simply failed to
adequately protect her as a member of the public. Id. 2. Special Relationship
Bowers is just one of a number of Seventh Circuit precedents holding that
a government actor did not place a victim in a position of danger,
though the actor may have failed to protect the victim. See Stevens
v. Umsted, 131 F.3d 697, 705-06 (7th Cir. 1997) (holding that superintendents knowledge
alone of sexual assaults committed against a student was insufficient to show that
the superintendent placed the student in danger); Wallace v. Adkins, 115 F.3d 427,
430 (7th Cir. 1997) (holding that prison officials had no duty to protect
prison guard whom they had stationed in a prisoners unit and had assured
were taking action to prevent contact between the guard and a prisoner who
had attacked him previously); cf. Dawson v. Milwaukee Housing Auth., 930 F.2d 1283,
1284 (7th Cir. 1991) (holding that public housing authority did not have duty
to protect victim-resident from a violent resident even when it knew the violent
resident had previously threatened to harm victim-resident and had stabbed a third resident).
Even if the defendants had known of the danger posed by Jerrod Eskew,
they would not be liable for Jays death because substantive due process imposes
no obligation to protect citizens from private harm even in the face of
known dangers. The defendants did not force Eskew to possess drugs or
compel Eskew to obtain a shotgun and saw off the barrel. The
defendants did not encourage Eskew to return to the dormitory to shoot Jay.
The defendants did not lock Jay and Eskew in the same room
and hand Eskew a sawed-off shotgun. Evidentiary designations similar to those may
have avoided summary judgment on the Seversons state-created danger theory. The Seversons
have alleged no such facts in their complaint or in the materials accompanying
their motion in opposition to summary judgment. Accordingly, the trial court properly granted
the defendants summary judgment on the Seversons claim that the defendants deprived Jay
of his substantive due process rights through a state-created danger.
The Seversons maintain that a reasonable inference can be drawn that Jay informed
Officers Cox and Davis and Deputy Warren that Jerrod had threatened to kill
him and that the officers undertook to protect Jay. As a result,
a special relationship then formed between the law enforcement personnel (and their employers)
and Jay. Two facts, in their estimation, create the inference that Jay
informed the officers of the threat: (1) Jay took the death threat seriously,
and (2) Jay spent a substantial amount of time with the officers on
the night of October 15. Hence, according to the Seversons, a reasonable
inference can be drawn that Jay informed the officers of the death threat.
Appellants Br. p. 14. They also argue that during the same
time period that the officers were searching for Jerrod, the dorm floor was
abuzz as word rapidly spread of the death threat made by J[e]rrod to
Jay. Appellants Br. p. 14. The officers, their argument runs, became
aware of the conversations and learned of the threat.
When Jay expressed concern that he may not have acted diligently enough in
reporting Eskews crime, Deputy Warren reassured Severson by saying something to the effect
of, Dont worry, well get this all worked out, Appellants App. p. 50,
Dont worry, well find him, or It will all work out. Appellants
App. p. 133. Such was the extent of Deputy Warrens conversation with
Jay. The Seversons argue that Deputy Warren, on behalf of the officers
investigating Eskews drug possession, promised Jay they would protect him by taking care
of the problem. Jay relied on this promise, and died as a result.
Appellants Br. p. 26. Deputy Warrens promise, according to the Seversons,
created a special relationship such that the government was required to affirmatively protect
[Jay] against the violation of his constitutional rights by Eskew. Appellants Br.
p. 27. In support of their argument, the Seversons cite Archie v.
City of Racine, 826 F.2d 480, 497 (7th Cir.) (Archie I), vacated and
rehg granted by 831 F.2d 152 (7th Cir. 1987). The Seventh Circuit,
in Archie I, held that a special relationship was created between an ambulance
dispatcher and a caller, who was suffering from hyperventilation. The dispatcher advised
the caller to breathe into a bag and did not send an ambulance.
Id. The caller arguably relied on the advice, causing her to
refrain from seeking further assistance, and died. Id.
However, the Seventh Circuit overturned in part Archie I in an en banc
rehearing of the case. Archie v. City of Racine, 847 F.2d 1211
(7th Cir. 1987) (Archie II). Archie II held that the dispatcher did
not violate the callers rights under the Due Process Clause because the dispatcher
did not cause the callers disease, did not propel the caller into danger,
and did not hinder the caller from seeking other sources of aid.
Id. at 1223. Likewise, none of the defendants caused Eskew to murder
Jay. Nor did they restrict Jay from taking any actions he felt
were necessary to protect himself. As a result, the trial court correctly
ruled in favor of the defendants on the Seversons claim that a special
relationship existed between the defendants and Jay.
In addition, the Seversons claim that Jay was a police informant and entitled
to protection from the law enforcement authorities he was assisting in that capacity.
Appellants Br. p. 28. They purport to rely on a number
of cases for the proposition that a law enforcement agencys failure to provide
protection promised to an informant constitutes a breach of duty. Appellants Br.
p. 28. (citing Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998); Kallstrom
v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998); Wallace v. Atkins,
115 F.3d 427 (7th Cir. 1997); Kneipp v. Tedder, 95 F.3d 1199 (3d
Cir. 1996); Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995); Dwares v.
City of New York, 985 F.2d 94 (2d Cir. 1993); Freeman v. Ferguson,
911 F.2d 52 (9th Cir. 1990)). As the Tippecanoe County defendants correctly
point out, none of the cases cited by the Seversons involved law enforcement
promises to protect confidential informants. Tippecanoe County Appellees Br. p. 13.
Therefore, they have failed to show that the trial court erred to the
extent it ruled in favor of the defendants on the Seversons police-informant theory
In general, a private citizen does not have a constitutional right to be
protected from violence committed by another citizen. The exceptions to this general
rulethe state-created danger and special relationship exceptionsare not applicable in the instant case.
The defendants did not compel Eskew to murder Jay. Nor was there
any evidence that the defendants took affirmative steps to place Jay within Eskews
murderous path and then remove any means by which Jay might have protected
himself. For these reasons, the Seversons have failed to designate any evidence
showing that the defendants deprived Jay or them of their rights to substantive
due process. The trial court, therefore, did not err by granting summary
judgment on the § 1983 claims to: (1) the members of the Purdue
University Board of Trustees for actions taken in their official capacities subject to
prospective relief; (2) Purdue employees Sautter, Boscher, Johnson, and Lewis; (3) PUPD Officers
Cox and Davis; and (4) Tippecanoe County Sheriffs Deputy Warren.
III. Defenses to the Seversons State Law Claims
A. No Duty
The Seversons further argue that the trial court erred to the extent that
it determined that none of the defendants owed a duty of care to
Jay. The duty of care, according to the Seversons, arises from two
sources: (1) Purdue University, as a premises owner, owed a duty of care
to the tenants of its residence halls; and (2) each defendant owed a
duty of care to Jay through a gratuitous assumption of duty.
1. No Premises Liability
In arguing for Purdues liability as premises owner, the Seversons rely on three
supreme court decisions handed down on the same day: L.W. v. Western Golf
Assn, 712 N.E.2d 983 (Ind. 1999); Vernon v. Kroger Co., 712 N.E.2d 976
(Ind. 1999); and Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999).
The issue in each case was whether the premises owner owed a
duty to the plaintiff to protect the plaintiff from third-party criminal attacks.
A duty arises when the totality of the circumstances demonstrates that the criminal
act was reasonably foreseeable. Vernon, 712 N.E.2d at 979. To determine
whether the totality of the circumstances supports imposition of a duty:
a court must look to all of the circumstances surrounding an event, including
the nature, condition, and location of the land, as well as prior similar
incidents, to determine whether a criminal act was foreseeable. A substantial factor
in the determination of duty is the number, nature, and location of prior
similar incidents, but the lack of prior similar incidents will not preclude a
claim where the landowner knew or should have known that the criminal act
was foreseeable. While landowners have no duty to insure [their] invitees safety,
they do have a duty to take reasonable precautions to prevent foreseeable criminal
acts against invitees.
Id. at 979-80 (citations omitted) (quoting Delta Tau Delta, 712 N.E.2d at
972, 973). We note that a governmental unit is bound by the
same duty of care as a non-governmental unit except where the duty alleged
to have been breached is so closely akin to one of the limited
exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it
should be treated as one as well. Benton v. City of Oakland
City, 721 N.E.2d 224, 230 (Ind. 1999). 2. No Gratuitous Assumption of Duty
Two supreme court opinions lead to the conclusion that no premise liability arose
in the instant case: Ellis v. Luxbury Hotels, Inc., 716 N.E.2d 359
(Ind. 1999), and Western Golf Assn, 712 N.E.2d 983. In Ellis, a
hotel clerk gave a husband his wifes room number without her knowledge or
consent. 716 N.E.2d at 360. The husband proceeded to the room
where he assaulted the man in the room with his wife. Id.
Our supreme court held that the unforeseeable nature of the attack and
lack of prior similar incidents led to the conclusion that no duty existed.
Id. at 361. Likewise, in Western Golf Assn, summary judgment was
appropriate because the absence of prior violent acts and sexual assaults at a
fraternity house led to the conclusion that a rape was not reasonably foreseeable
at the house. 712 N.E.2d at 985.
Summary judgment on the Seversons negligence-based claims was appropriate for similar reasons.
First, the Seversons designated no evidence showing any prior violent acts committed by
student-residents against their resident advisors. Second, there was no designated evidence that
would have made the murder of any residential advisor, including Jay, foreseeable.
This leads us to conclude that Jays murder was not reasonably foreseeable and
that Purdue as the premises owner had no duty to protect against the
harm suffered. Therefore, the Seversons have failed to show that the trial
court incorrectly granted Purdue summary judgment on their negligence-based claims.
Citing American Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d 532 (Ind.
Ct. App. 1988), trans. denied, the Seversons maintain that Purdue University, PUPD Officers
Cox and Davis, Tippecanoe County Sheriffs Deputy Warren, and their respective law enforcement
agency employers gratuitously assumed a duty to protect Jay. In Christon, this
court held that a private security guards attempt to determine whether a partygoer
was armed presented a genuine issue of material fact regarding whether the security
company gratuitously assumed the duty to protect the attendees at the party.
Id. at 537. According to the Seversons, the law enforcement officers and
agencies gratuitously assumed a duty through Deputy Warrens statement that he would take
care of the situation. Appellants Br. p. 35. Purdue, furthermore, gratuitously
assumed a duty by placing Jay in the residence hall and requiring him
to report crimes committed by students, even while living among the students.
Appellants Br. p. 34. The Seversons further argue that Jay relied on
the Purdue staff to remove dangerous students like Eskew from the residence hall,
especially given that Purdue officials were aware of the drug use and unstable
mental state of Eskew. Appellants Br. p. 35.
For an actor to gratuitously assume a duty, [i]t is apparent that the
actor must specifically undertake to perform the task he is charged with having
performed negligently, for without actual assumption of the undertaking there can be no
correlative legal duty to perform the undertaking carefully. Butler v. City of
Peru, 733 N.E.2d 912, 917 (Ind. 2000). The Seversons have designated no evidence
that the law enforcement officers knew of a need to protect Jay or
received a request from Jay for protection, let alone that they promised to
protect Jay from Eskew. First, the Seversons allegations that the floor was
abuzz with rumors of Eskews threat are insufficient to permit a reasonable inference
that the law enforcement officers heard these purported rumors. See Appellants Br.
p. 14 (These officers were certainly in a position to hear these conversations,
and most likely did become aware of the death threat by overhearing student
conversations as they investigated he incident in question.). Similarly, the fact that
Jay spent a substantial amount of time with the law enforcement officers on
the evening of October 15 is insufficient to support a reasonable inference that
he informed the officers of a threat to his life. See
Appellants Br. p. 14. Speculation of this kind does not create a
genuine issue of material fact. Furthermore, there is no evidence of drug-related
violence at the residence hall or acts of violence against any residential advisor.
Hence, Purdue employees could not have specifically undertaken to protect Jay from
Eskew because they had no knowledge that Jay had been threatened.
In sum, the Seversons designated no evidence showing that any defendant specifically undertook
to protect Jay from Eskew.
See Butler, 733 N.E.2d at 917.
The trial court, as a result, correctly granted summary judgment to the defendants
on the Seversons state law claims.
B. Indiana Tort Claims ActLaw Enforcement Immunity
In the instant case, the law enforcement agencies and personnel are also immune
under the Indiana Tort Claims Act (ITCA). A governmental entity is immune
from a liability if a loss results from:
(7) the adoption and enforcement of or failure to adopt or enforce a
law (including rules and regulations), unless the act of enforcement constitutes false arrest
or false imprisonment[.]
Ind. Code § 34-13-3-3. Our supreme court has defined the scope of
enforcement as: limited to those activities in which a governmental entity or its
employees compel or attempt to compel the obedience of another to laws, rules
or regulations, or sanction or attempt to sanction a violation thereof. Mullin
v. Mun. City of South Bend, 639 N.E.2d 278, 283 (Ind. 1994) (citing
Quakenbush v. Lackey, 622 N.E.2d 1284, 1287 n.3 (Ind. 1993)).IV. Indiana Constitutional Claims
In OBannon v. City of Anderson, we found ITCA law-enforcement immunity applicable where
police officers pursued a suspect into the plaintiffs home where the suspect had
retreated uninvited. 733 N.E.2d 1, 2 (Ind. Ct. App. 2000). The
officers fired shots into the OBannons home, searched her home, and seized her
temporarily in the course of arresting the suspect. Id. OBannon sued
the City of Anderson for negligent infliction of emotional distress, trespass, and illegal
search and seizure. Id. We held that the ITCA immunized the
police officers from liability because the officers were seeking to enforce the law
when they pursued the suspect into OBannons home. Id. at 3.
Likewise, the law enforcement officers in the instant case were seeking to enforce
the law by arresting Eskew. Their failure to arrest Eskew before he
attacked Jay is clothed with the same immunity as the police officers pursuit
in OBannon. Therefore, the trial court did not err in granting summary
judgment to the law enforcement officers and agencies to the extent it determined
that the ITCA immunized their enforcement of the law or failure to enforce
The Seversons further maintain that the trial court erred in granting summary judgment
on their claims brought under Article I, Sections 1, 12, and 21 of
the Indiana Constitution.
See footnote Their assertion is utterly devoid of argument explaining how
their Indiana constitutional rights were violated. Nor have the Seversons cited a
single case to support their position. As a consequence, their claims that
the defendants violated theirs or Jays various Indiana constitutional rights are waived.
See Ind. Appellate Rule 46(A)(8)(a) (requiring that appellate argument be supported by reasoning
and case authority); Shelby v. Truck & Bus Group Div. of Gen. Motors
Corp., 533 N.E.2d 1296, 1299 (Ind. Ct. App. 1989) (holding that claims under
Article I, Sections 12 and 20 of the Indiana Constitution were waived for
failure to offer reasoned argument and adequate case support).
V. The Seversons Motion to Strike
The Seversons maintain that the trial court erred in denying their motion to
strike certain portions of Purdues reply brief to the Seversons motion in opposition
to summary judgment, Purdues supplemental designation of evidence, and certain portions of the
Tippecanoe County defendants reply brief to the Seversons motion in opposition to summary
judgment. The Seversons contend that the Purdue defendants and the Tippecanoe County
defendants raised new issues in reply to the Seversons motion in opposition to
Spudich v. Northern Indiana Public Service Co., 745 N.E.2d 281, 289 (Ind.
Ct. App. 2001), trans. denied, the Tippecanoe County defendants contend that, to the
extent new issues were raised in the reply briefs, a trial court may
grant summary judgment based on any legal theory. We agree that the
Seversons have failed to show that they suffered more prejudice by any additional
legal authority in the Tippecanoe County defendants reply brief than they would have
suffered had the trial court discovered the legal theories independently. See Spudich,
745 N.E.2d at 289. Furthermore, the Tippecanoe County defendants maintain that their
original motion for summary judgment had already sought summary judgment against the Seversons
individual capacity claims as well as their claims as personal representatives on behalf
of Jays estate. The Seversons do not dispute this assertion nor does
our review of the original motion for summary judgment give us reason to
do so. See Appellants App. p. 18-19. Moreover, the Seversons do
not dispute that any additional evidentiary designations made by Purdue were identical to
those already made by the Seversons. Accordingly, the Seversons have failed to
show that the trial court improperly denied the Seversons motion to strike.
VI. The Seversons Motion to Seal Portions of Appellate Record
In a motion filed separately from their briefs on appeal, the Seversons move
this court to seal certain portions of the record. Specifically, the Seversons
request this court to seal the photographs taken of Jays dorm room after
the murder and the identities of certain undercover law enforcement officers. Their
motion indicates that all parties agreed to the sealing of these items at
the trial court level. We hereby grant their motion to seal portions
of the record.
We conclude that Purdue and the PUPD were not § 1983 persons.
Therefore, the § 1983 claims against those parties are dismissed for lack of
subject matter jurisdiction. The Seversons conceded that the § 1983 claims against
the Office of the Sheriff of Tippecanoe County were properly disposed of by
summary judgment. We decline to disturb that judgment.
As for the defendants amenable to § 1983 claims, the Seversons have failed
to designate any evidence showing that the defendants deprived Jay or them of
their rights to substantive due process. More specifically, the Seversons failed to
designate evidence creating a genuine issue of material fact regarding the state-created danger
and special relationship exceptions. The trial court, therefore, did not err in
granting summary judgment on the § 1983 claims to: (1) the members of
the Purdue University Board of Trustees for actions taken in their official capacities
subject to prospective relief; (2) Purdue employees Sautter, Boscher, Johnson, and Lewis; (3)
PUPD Officers Cox and Davis; and (4) Tippecanoe County Sheriffs Deputy Warren.
Similarly, Purdue did not owe Jay a duty of care by virtue of
premises liability. Nor did any defendant gratuitously assume a duty to protect
Jay from Eskew. The police officers and agencies involved in investigating Eskews
cocaine possession were immune from any liability through ITCA law-enforcement immunity. Finally,
the Seversons waived any argument that the defendants violated Jays or their Indiana
constitutional rights. As a result, we affirm the summary judgment granted to
each defendant on all of the Seversons state law claims.
The trial court also properly denied the Seversons motion to strike. We
grant the motion to seal portions of the appellate record as requested.
We affirm in part, reverse in part, and remand for entry of dismissal
of the § 1983 claims against Purdue and the PUPD.
VAIDIK, J., and BARNES, J., concur.
42 U.S.C. § 1983.
Footnote: The terms state agency and arm of the state are
used interchangeably in federal case law.
Footnote: The terms personal capacity and individual capacity are used interchangeably
in federal case law.
Footnote: The Eleventh Amendment provides: The Judicial Power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State. U.S.
Const. amend. XI.
U.S. Const. art. I, § 10, cl. 3 (No State
shall, without the consent of Congress, . . . enter into any Agreement
or Compact with another State . . . .).
Footnote: While these facts and circumstances dictate our decision in this
case, we recognize that Purdue University and other institutions of higher learning do
have a responsibility to adequately train and support those they employ as residential
Footnote: We note that Purdue conceded liability under the Workers Compensation
Act, asserting that Jay was working as a residential advisor when he was
murdered. Todays opinion in no way bars the Seversons from seeking any
relief still available under the Workers Compensation Act.
Footnote: Article I, Section 1 of the Indiana Constitution provides:
WE DECLARE, That all people are created equal; that they are endowed by
their CREATOR with certain inalienable rights; that among these are life, liberty, and
the pursuit of happiness; that all power is inherent in the People;
and that all free governments are, and of right ought to be, founded
on their authority, and instituted for their peace, safety, and well-being. For
the advancement of these ends, the People have, at all times, an indefeasible
right to alter and reform their government.
Article I, Section 12 of the Indiana Constitution provides:
All courts shall be open; and every person, for injury done to him
in his person, property, or reputation, shall have remedy by due course of
law. Justice shall be administered freely, and without purchase; completely, and without
denial; speedily, and without delay.
Article I, Section 21 of the Indiana Constitution provides:
No persons particular services shall be demanded, without just compensation. No persons
property shall be taken by law, without just compensation; nor, except in case
of the State, without such compensation first assessed and tendered.
Footnote: Because we have determined summary judgment was appropriately entered in
favor of all the defendants on all the Seversons claims, we need not
address the trial courts decision to deny both the Purdue defendants and Tippecanoe
County defendants respective motions to strike.