Sowell v. Dominguez

• Decision Date: 27 January 2011
• Docket Number: No. 2:09 CV 47,2:09 CV 47
• Court: U.S. District Court — Northern District of Indiana
• Parties: TAMARRA SOWELL, Plaintiff, v. ROY DOMINGUEZ, et al., Defendants.

TAMARRA SOWELL, Plaintiff,

v.ROY DOMINGUEZ, et al., Defendants.

No. 2:09 CV 47

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Dated: January 27, 2011

OPINION AND ORDER

Defendants Southlake Center for Mental Health, Dr. Lee Periolat, and Manual Barragan (collectively referred to as the "Southlake defendants") have moved for summary judgment in this case. (DE # 46.) Defendants Roy Dominguez, Bennie Freeman, Officer Janice Hatton, Officer Linda Riley, Sergeant R. Starkey, Sergeant Hubner, and unknown employees and supervisors of Lake County Jail¹ (collectively referred to as the "Lake County Jail defendants") have also filed a motion for summary judgment. (DE # 61.) The Lake County Jail defendants have moved to adopt by reference two of the Southlake defendants' summary judgment arguments. (DE # 61 at 3-4.) That motion will be granted. As explained below, plaintiff's claim for indemnification will be dismissed without prejudice for lack of subject matter jurisdiction. Regarding the remaining claims, the Southlake defendants' motion forsummary judgment will be denied in whole. The Lake County Jail defendants' motion will be granted in part and denied in part.

Also before the court is the Southlake defendants' motion to strike Exhibit B of the plaintiff's Memorandum in Opposition to Summary Judgment. (DE # 53.) Exhibit B appears to be a report of the investigation of Lake County Jail undertaken by the United States Department of Justice. (Exh. to Pl.'s Resp. to Southlake Def.'s Br. in Supp. of Summ. J. 3, DE # 50-2.) Because this matter can be resolved without considering Exhibit B and addressing the evidentiary claims raised in the Southlake defendants' motion to strike, that motion will be denied as moot.

I. BACKGROUND

a. Factual background

The facts discussed herein are either undisputed, or, when in dispute, resolved in favor of the non-moving party, plaintiff Tamara Sowell ("Sowell"). See Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). Sowell filed a complaint as "personal representative, Administrator for the Estate, and on behalf of the heirs of Adekunle Odumabo" ("Odumabo") who is deceased. (Pl.'s First Am. Compl. ¶ 1, DE # 24.) The complaint alleges that Odumabo appeared before Magistrate Judge Paul Cherry on April 26, 2007, and threatened to take his own life. (Id.) Judge Cherry ordered Lake County Jail to place Odumabo under a suicide watch. (Id.) Sowell alleges that defendants ignored Judge Cherry's order and took Odumabo off suicide watch the next day. (Id. at ¶ 5.) Odumabo ended his own life while at Lake County Jail on April 30, 2007. (Id. ¶ 7.) Sowell alleges that by failing to keep Odumabo under suicide watch, defendants were deliberately indifferent to the risk that Odumabo would die in jail. (Id. ¶ 15.)

Sowell filed her original complaint in this court on March 3, 2009. (DE # 1.) In her First Amended Complaint, filed on April 29, 2009, Sowell stated that she "is the personal representative and administrator for the Estate of Adekunle Odumabo." (Pl.'s First Am. Compl. ¶ 8.) Sowell is also the mother of Odumabo's son. (Id.) The parties agree that Sowell first petitioned the Circuit Court of Cook County to become the administrator of Odumabo's estate on February 9, 2009, and that her appointment was finalized on July 15, 2009. (Pl.'s Resp. to Southlake Defs.' Mot. for Summ. J. 2-3, DE # 50; Southlake Defs.' Br. in Supp. of Mot. for Summ. J. 3, DE # 47; Lake County Jail Defs.' Br. in Supp. of Mot. for Summ. J. 5, DE # 62.) Exhibits to the parties' briefs show that many hearings in the Illinois courts took place in between these two dates. (Joseph A. Namikas Aff., Ex. A to Pl.'s Resp. to Southlake Defs. Mot. for Summ. J., DE # 50-2; Ex. 1 to Southlake Defs.' Br. in Supp. of Mot. for Summ. J. and to Lake County Jail Defs.' Br. in Supp. of Mot. for Summ. J., DE # 46-2.)

What follows is an overview of the administrator proceedings in the Illinois state courts. On February 9, 2009, Sowell filed a Petition for Letters of Administration in the Circuit Court of Cook County seeking her appointment as the independent administrator of Odumabo's Estate. (Namikas Aff. ¶ 4.) The presentation of Sowell's Petition for Letter of Administration was scheduled to occur on March 4, 2009.

(Id. at ¶ 5.) On that date, the matter was heard and then continued for hearing before a different judge, Judge James A. Kennedy, to April 6, 2009. (Id.) Judge Kennedy, on his own motion, continued the hearing to April 13, 2009, for a presentation of an affidavit of heirship, and the affidavit was presented on that date. (Id. at¶¶ 6, 7.) Judge Kennedy then continued the matter to May 11, 2009, in order to determine whether it was necessary to undertake a separate guardianship for Sowell's and Odumabo's son, the sole heir of Odumabo's estate. (Id. at ¶ 7.)

On May 11, 2009, Sowell's counsel presented the minor's birth certificate listing Sowell as his mother and asserted that it was not necessary to appoint her as the minor's guardian. (Namikas Aff. ¶ 8.) Judge Kennedy found this evidence compelling but still determined that it was necessary under the laws of Illinois for Sowell to be formally appointed as the guardian of the estate of her minor son. (Id.) Because Sowell and her son were residents of Will County, the matter was continued so that Sowell could be appointed as guardian of her son's estate in the court for that county. (Id. at ¶ 9.) That process was completed on July 6, 2009. (Id. at ¶ 10.) The letters of office signifying Sowell's appointment as guardian were also issued that day but were forwarded to her counsel four days later. (Id. at ¶ 10-11.) On July 15, 2009, Sowell's counsel presented the letters of office to Judge Kennedy and the latter entered an order appointing Sowell as the independent administrator of the Estate of Odumabo. (Id. at ¶ 11.) Based on this account of the proceedings, Sowell asserts that the delay infinalizing her appointment occurred through no fault or delay of her counsel. (Pl.'s Resp. to Southlake Defs.' Br. in Supp. of Summ. J. 3.)

b. Legal background

Sowell filed a complaint stating claims of violation of constitutional rights under 42 U.S.C. § 1983, wrongful death, and indemnification. (DE # 24 at 5-7.) As stated above, two groups of defendants have filed motions for summary judgment requesting summary judgment in their favor.

The Southlake defendants' and the Lake County Jail defendants'² primary argument is that Sowell's complaint should be dismissed because Sowell had not been appointed personal representative or administrator of Odumabo's estate by the Illinois courts at the time the complaint initiating the present action was filed or at any time prior to two years after the date of Odumabo's death. (Southlake Defs.' Br. in Supp. of Mot. for Summ. J. 4; Lake County Jail Defs.' Br. in Supp. of Mot. for Summ. J. 7.) Defendants argue that under Indiana law, suits for wrongful death need to be brought by the personal representative of the deceased within two years of the death. (Southlake Defs.' Br. in Supp. of Mot. for Summ. J. 5.) Defendants assert that the personal representative is the only person with "standing to bring any claim on behalf of theestate" of a deceased person. (Id.) Since Sowell was not appointed the personal representative within two years of Odumabo's death, defendants argue that her claim for wrongful death should be dismissed under Indiana law. (Id. at 7.) They argue that federal relation back principles cannot serve to allow Sowell to have her status as personal representative, obtained after the mandated two-year time period, relate back to the date of the filing of the original complaint. (Southlake Defs.' Reply 7, DE # 66.) Defendants further argue that the Indiana law described above applies to Sowell's federal claim as well, subjecting that claim to summary judgment. (Id. at 7-8.)

In response, Sowell argues that for both her state and federal claims, federal relation back principles allow for her status as personal representative to relate back to the date of the filing of her original complaint. (Pl.'s Resp. to Southlake Defs.' Mot. for Summ. J. 6; Pl.'s Resp. to Lake County Jail Defs.' Mot. for Summ. J. 3.) She also argues that while defendants state that she does not have standing to sue, their argument is actually that she has a lack of capacity to sue. (Pl.'s Resp. to Southlake Defs.' Mot. for Summ. J. 5.) Sowell argues that all defendants have waived the defense of lack of capacity to sue because they did not assert this affirmative defense in their answers to her First Amended Complaint. (Id. at 5; Pl.'s Resp. to Lake County Jail Defs.' Mot. for Summ. J. 2.)

In reply, the Southlake defendants argue that they properly pleaded their affirmative defense by asserting the defense of "plaintiff's lack of standing to pursue the claims." (Southlake Defs.' Reply 3, DE # 52.) Further, they argue that lack of standing, rather than lack of capacity, is the appropriate defense. (Id.) They assert that "lack of capacity" refers to a legal disability such as infancy or incompetency, not to the legal existence of a plaintiff. (Id. at 4.)

The Lake County Jail defendants argue that they preserved all defenses relevant to their summary judgment motion. (Lake County Jail Defs.' Reply 2, DE # 66.) They also argue that Sowell misrepresented to the parties and to the court that she was the personal representative and administrator of Odumabo's estate when she had not yet been so appointed. (Id. at 2-3; Lake County Jail Defs.' Br. in Supp. of Mot. for Summ. J. 7-8.) They argue that she should not be rewarded for misrepresenting her capacity in her complaint. (Lake County Jail Defs.' Reply 3.)

Defendants make several other arguments in favor of summary judgment. Both groups of defendants argue, for separate reasons as discussed below, that Sowell's claim of indemnification fails. (Id. at 10.) The Southlake defendants argue that ...