Opinion
Cause No. IP 00-393-C-M/S
December 4, 2000
ORDER ON DEFENDANT LEERKAMP'S MOTION TO DISMISS AND FOR ENTRY OF FINAL JUDGMENT
This matter is before the Court on defendant Sonia Leerkamp's ("Leerkamp") motion to dismiss various claims against her under Federal Rules of Civil Procedure 12(b)(6) and for entry of final judgment pursuant to Fed.R.Civ.P. 54(b). Plaintiffs Ricky and Beth Beauchamp ("Beauchamp") initially alleged claims under federal and Indiana law against Leerkamp in her individual capacity and her official capacity as Hamilton County Prosecutor. After Leerkamp filed her motion to dismiss, plaintiffs voluntarily dismissed all claims against her in her official capacity and the claims against her under 42 U.S.C. § 1981 and 1985. Thus, the only remaining claims for purposes of this motion are against Leerkamp in her individual capacity under 42 U.S.C. § 1983 and Indiana common law. After considering the parties' arguments, the Court concludes that Leerkamp is entitled to absolute immunity for the actions alleged in plaintiffs' complaint and amended complaints. Accordingly, the Court GRANTS Leerkamp's motion to dismiss and DISMISSES WITH PREJUDICE plaintiffs' claims against her. In addition, because there is no just reason for delay, the Court will enter a final order pursuant to Fed.R.Civ.P. 54(b) with respect to the claims against Leerkamp.
The Court's use of the word "Beauchamp" throughout this opinion will refer to Ricky Beauchamp unless otherwise noted.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 1998, Detective Milligan of the Noblesville Police Department approached Beauchamp at a place of business and told him, with respect to charges of attempted residential entry, that he "would arrest [Beauchamp] now but the prosecutor wants all the paperwork." Pls.' Complaint ¶ 16a. Milligan apparently had with him paperwork related to his investigation. Id. Beauchamp believes the prosecutor was defendant Sonia Leerkamp, and that Milligan then gave the paperwork to Leerkamp "for purposes of investigative review and advice to Milligan." Id. Beauchamp also believes that Leerkamp engaged in investigative conduct and gave advice to Milligan — and possibly other police officers — relative to whether probable cause existed to arrest Beauchamp for that alleged criminal offense. Id. Beauchamp believes that Leerkamp knew at that time that he had proof that he had been 20 minutes away from Klingerman's home at the time of the alleged attempted entry. Id.
On March 5, 1998, Leerkamp's office filed a charge of Attempted Residential Entry, a Class D Felony, against Beauchamp in Hamilton County Superior Court. Id. ¶ 11. The alleged victim was Michelle Klingerman. Id. Milligan went to Klingerman's residence and concluded from her saying that Beauchamp had harassed her at work that he was the culprit. Milligan then began investigating Beauchamp. Id. ¶ 13. The investigation included visiting Beauchamp at his home and observing him wearing clothing similar to what Klingerman said the person who was at her door had been wearing. Id. ¶ 14. Milligan recorded Beauchamp and five other males speaking the words that Klingerman said the man at her door had said. Id. Klingerman listened to the tapes and identified Beauchamp's voice as the one that had been at her door. Id.
Plaintiffs also allege that "Beauchamp telephoned Milligan's office that he had documentary proof he was at her home, some 20 minutes away, when this alleged offense occurred." Id. ¶ 14. It is not clear to whom Beauchamp is referring when he says "her" home. If Beauchamp means he was at Klingerman's home, this obviously not be an alibi. The Court assumes Beauchamp meant either that he was at "his" home or that he was 20 minutes away from Klingerman's home when the alleged offense occurred.
Based upon this information, Milligan signed an affidavit for probable cause containing certain facts, which plaintiffs believe is the sole factual basis upon which Leerkamp's office filed the felony charge against Beauchamp. Id. ¶ 15. The Hamilton County Superior Court issued a warrant and set bond at $15,000. Id. ¶ 16. On March 10, 1998, Beauchamp pled not guilty and the Court released him pending trial subject to an order that he not contact Klingerman in any manner. Id. ¶ 16.
On April 1, 1998, Leerkamp's office filed a motion to revoke Beauchamp's bond on the ground that he had violated the no-contact order. At a hearing on April 6, 1998, the Court denied the motion. Id. ¶ 18.
On April 24, 1998, Leerkamp's office filed additional charges of Rape, Confinement, and Invasion of Privacy against Beauchamp. The alleged victim was again Klingerman. These offenses allegedly occurred at Klingerman's home at 2:00 p.m. on April 15, 1998. Id. ¶ 19. Klingerman could not identify the alleged rapist because he was wearing a ski mask. Id. ¶ 22. She also said that the one thing the alleged attacker said to her sounded like it Beauchamp. Id. The charges were investigated by defendants Milligan; Cynthia Dukette, a Noblesville police officer; and Kelly Weidener, a Marion County deputy sheriff. Id. ¶ 20.
On April 22, 1998, Dukette and Weidener visited Beauchamp at his home to ask him about his whereabouts on April 15, 1998. Id. ¶ 23. He showed them his daily log, which confirmed that he would have been somewhere else at the time of the alleged rape. Id. ¶ 23. He also played for them several messages he received from a friend of Klingerman's husband calling Beauchamp a "rapist" and threatening him with physical harm. Id. Beauchamp gave Dukette and Weidener copies of his daily log and the recorded messages. Id.
Plaintiffs believe that Dukette and Milligan then went to Leerkamp's office to seek the filing of rape and the companion charges against Beauchamp. Id. ¶ 24. Plaintiffs do not believe that Dukette or Milligan disclosed to the Court the information regarding Beauchamp's daily log and the recorded messages. Id. ¶ 25. The Circuit Court issued a warrant for Beauchamp's arrest and to search him and his home. The Court also placed him under a $150,000 bond. Beauchamp was arrested and remanded to the Sheriff's custody on April 24, 1998. Id. ¶ 26.
As a result of Beauchamp's second arrest, Leerkamp's office filed another motion to revoke his bond. Id. ¶ 27. The Court granted the motion, which resulted in Beauchamp's being held in the Hamilton County Jail until July 28, 1998, which was 95 days after he was imprisoned. Id. ¶ 28.
Plaintiffs' complaint actually stated that Beauchamp was confined until July 1995. The Court assumes this was merely a typographical error, and that plaintiffs instead meant 1998.
In addition to the allegedly exculpatory evidence contained in his daily log, Beauchamp believes that Dukette, Milligan, and Weidener also knew before he was arrested that a police technician of the Noblesville Police Department believed that Klingerman's dress had been deliberately cut, not torn as Klingerman had reported. Id. ¶ 29. An expert examination by the Indiana State Police crime lab confirmed that the dress had been deliberately cut. Id. Defendants knew this by at least July 1998. Id.
In July 1998, an Indiana State Police expert conducted a polygraph examination of Klingerman and Beauchamp. The test determined that Beauchamp was not deceptive in his answers and that Klingerman's answers were inconclusive. According to an agreement between Beauchamp, Klingerman, and Leerkamp's office, the rape and the companion charges were to be dismissed if such a result was filed. Id. ¶ 31.
Klingerman later told her employer that she was upset that Beauchamp had called her at work. Her employer recorded the call, however, and believed that the voice was actually Klingerman's. The employer turned the tape over to the Fishers Police Department, and plaintiffs believe that it later gave the tape to Dukette or Milligan. Beauchamp believes that Deputy Prosecutor Jennifer Freeman telephoned Klingerman's employer to discuss the allegedly bogus telephone call. Id. ¶ 32a. Beauchamp also believes that Leerkamp's office was party to other police investigatory activities, including Freeman's presence at the polygraph examinations of Klingerman and Beauchamp. Id. ¶ 32a. Sometime before October 20, 1998, Leerkamp contacted the Fishers Police Department and told a detective to send her a tape of the call and related report, and instructed the detective that all information related to Beauchamp was to go directly to her. Id. ¶ 32b. When Beauchamp's attorney requested a copy of the tape from the prosecutor's office, it did not turn it over. Id. ¶ 32. Beauchamp also believes that in late July or August 1998 Leerkamp told a potential defense witness that she did not have to speak to Beauchamp's investigator. Id. ¶ 32b. On September 22, 1998, Leerkamp's office dismissed the rape and the companion charges. On September 9, 1999, her office dismissed the attempted residential entry charges. Id. ¶ 34.
The only claims left for purposes of this motion include those against Leerkamp in her individual capacity under 42 U.S.C. § 1983 and Indiana common law. Leerkamp argues that the claims should be dismissed because as prosecutor of Hamilton County, she enjoyed absolute immunity under both federal and Indiana law. In the alternative, Leerkamp argues that the Beauchamps have simply failed to state a claim against her in her individual capacity. The parties have fully briefed the issues, and the matter is now ripe for ruling.
II. STANDARDS A. MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(6)
Fed.R.Civ.P. 12(b)(6) permits the dismissal of a claim for "failure to state a claim upon which relief may be granted." United States v. Clark County, Indiana, 113 F. Supp.2d 1286, 1290 (S.D. Ind. 2000). When considering a motion under this rule, the Court must examine the sufficiency of plaintiffs' complaint, not the merits of the lawsuit. Id. Dismissal is appropriate only if it appears to a certainty that the plaintiffs cannot establish any set of facts which would entitle them to the relief sought. The Court shall accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Id.
B. 42 U.S.C. § 1983
Section 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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." Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Doe v. Eagle-Union Community School Corp., 101 F. Supp.2d 707, 717 (S.D. Ind. 2000), citing Livadas v. Bradshaw, 512 U.S. 107, 132. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. Doe, 101 F. Supp.2d at 717, citing West v. Atkins, 487 U.S. 42, 48 (1988). With these standards in mind, the Court will now address defendant Leerkamp's motion.
III. DISCUSSION A. LEERKAMP'S CLAIM OF ABSOLUTE IMMUNITY UNDER FEDERAL LAW
Leerkamp asserts that plaintiffs' claims must fail because she enjoys absolute immunity from suit. Indeed, to free the judicial process from the evils of frivolous litigation, the Supreme Court has held that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages." Anderson v. Simon, 217 F.3d 472, 475 (7th Cir. 2000), citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976). The Seventh Circuit has read Imbler broadly:
When determining which type of immunity a [prosecutor] enjoys, we look to the nature of the function that the [prosecutor] was performing in the particular case. If a [prosecutor's] function was quasi-judicial, the [prosecutor] enjoys absolute immunity. If the function was administrative or investigatory, the [prosecutor] enjoys only qualified immunity.
Spiegel v. Rabinovitz, 121 F.3d 251, 256 (7th Cir.), cert. denied, 522 U.S. 998 (1997), quoting Henderson v. Lopez, 790 F.2d 44, 46 (7th Cir. 1986). Thus, if Leerkamp functioned merely as an investigator she would not be entitled to absolute immunity. Spiegel, 121 F.3d at 257, citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (stating that when a prosecutor functions as an investigator or an administrator, he is entitled to only qualified immunity). However, she is entitled to absolute immunity for her "professional evaluation of evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made." Spiegel, 121 F.3d at 257, citing Buckley, 509 U.S. at 273. For example, in Spiegel the prosecutor was entitled to absolute immunity for his actions in evaluating the evidence assembled by the police, reviewing the police records, interviewing the parties involved, and assessing whether or not to prosecute. Spiegel, 121 F.3d at 257.
Plaintiffs point to three actions by Leerkamp where they claim she was functioning as an investigator and thus was not entitled to absolute immunity: (1) telling a defense witness that she did not have to talk to the Beauchamps' investigator; (2) "commandeering" Detective Milligan's paperwork on Ricky Beauchamp the week before his initial arrest; and (3) "commandeering" the Fishers Police Department's tape of the allegedly bogus telephone call and its file on Ricky Beauchamp after prosecution had been commenced on the rape charge. See Pls.' Response Brief at 6. Even accepting these allegations as true, Leerkamp is still entitled to absolute immunity.
Leerkamp allegedly contacted a defense witness in July or August 1998 — at least three months after her office had filed the second set of charges against Beauchamp — and told her that she did not have to speak to Mr. Beauchamp's investigator. Leerkamp also asked the Fishers Police Department — again, after her office had already filed charges against Beauchamp — to send her information it had pertaining to Ricky Beauchamp. These are not investigatory functions, but instead are routine tasks likely performed by prosecutors functioning as advocates in litigating their cases. This is vastly different from the situation in Buckley, where Supreme Court found the prosecutors were not acting as advocates when they went to the scene of the crime to determine whether a boot print was made by the plaintiff. Instead, Leerkamp merely talked to a witness and gathered additional information related to the prosecution of Beauchamp after her office had already filed charges against Beauchamp. Accordingly, Leerkamp is entitled to absolute immunity for those actions.
Similarly, as far as the Court can tell Leerkamp reviewed Detective Milligan's "paperwork" on Ricky Beauchamp before charges were filed as part of her evaluation and preparation of the case against Mr. Beauchamp — an act that is entitled to absolute immunity. See Spiegel, 121 F.3d at 257 (prosecutor entitled to absolute immunity when he simply evaluated the evidence assembled by the police, reviewed police records, interviewed witnesses, and assessed whether or not to prosecute), citing Hunt v. Jaglowski, 926 F.2d 689, 693 (7th Cir. 1991) (Asssitant State Attorney entitled to absolute immunity where he was called to the police station to review and approve or disapprove the actions of the police — who had already completed their investigation — and possibly issue the charges the police sought). Because plaintiffs have not pointed the Court to any alleged actions by Leerkamp that were not entitled to absolute immunity, her motion to dismiss the federal claims against her is GRANTED. The Court now DISMISSES WITH PREJUDICE all federal claims against Leerkamp.
B. LEERKAMP'S CLAIM OF IMMUNITY UNDER INDIANA LAW
Leerkamp also seeks immunity under Indiana law, which provides prosecutors with immunity from suits that are based upon acts that are "reasonably within the general scope of authority granted to prosecuting attorneys. . . ." Foster v. Pearcy, 387 N.E.2d 446, 448 (Ind. 1979), cert. denied, 445 U.S. 960 (1980). The scope of immunity under Indiana common law is broader than under federal law. Indiana has "rejected the Supreme Court's distinction between prosecutorial and administrative or investigative functions for purposes of immunity, as long as the prosecutor is acting within the scope of his or her authority." Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998), cert. denied, 525 U.S. 1121 (1999). In addition, the Indiana Tort Claims Act exempts from liability the initiation of judicial proceedings and the performance of discretionary functions. INDIANA CODE § 34-13-3-3(5) and (6).
Although the exact nature of plaintiffs' state law claims is not clear from the complaint and amended complaints, it appears that they are all based upon Leerkamp's initiation of and continuation of the prosecution of Beauchamp. Plaintiffs do not dispute that their claims are based upon those actions. Because Leerkamp's actions were within the scope of her authority as a prosecutor, she is entitled to absolute immunity under Indiana common law. Accordingly, the court GRANTS her motion to dismiss and DISMISSES WITH PREJUDICE all claims against her under Indiana law.
C. LEERKAMP'S REQUEST FOR FINAL JUDGMENT
Finally, Leerkamp asks this Court to enter a final judgment under Fed.R.Civ.P. 54(b). That rule allows the Court to enter a judgment in a multiple party or multiple claim case when one or more but fewer than all the claims have been finally resolved. Fed.R.Civ.P. 54(b). A Rule 54(b) partial final judgment, however, may be entered only when the court makes "an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." RSR Corp. v. Avanti Development, Inc., et al., 2000 WL 1449857, *2 (S.D. Ind. January 20, 2000). The proper entry of a "Rule 54(b) judgment requires first that the district court reach a judgment that is final in the sense that it completely disposes of a separate claim for relief or finally resolves all claims against a particular party or parties." Id., citing United States v. Ettrick Wood Prod., Inc., 916 F.2d 1211, 1217 (7th Cir. 1990). This order completely disposes of all claims against Leerkamp, and those claims were separate and distinct from plaintiffs' claims against the remaining defendants. In addition, this disposition has no bearing on the remaining claims in the case against the other defendants. As a result, there is no reason to delay a final adjudication of the claims against Leerkamp while awaiting disposition of the other claims. Accordingly, the Court finds that there is no just reason for delay and that final judgment should be entered pursuant to Fed.R.Civ.P. 54(b) in favor of the Leerkamp and against the plaintiffs Ricky and Beth Beauchamp.
IV. CONCLUSION
Leerkamp is entitled to absolute immunity for the actions alleged in plaintiffs' complaint and amended complaints. Accordingly, the Court GRANTS Leerkamp's Rule 12(b)(6) motion to dismiss and DISMISSES WITH PREJUDICE plaintiffs' claims against her under 42 U.S.C. § 1983 and Indiana common law. In addition, the Court concludes that there is no just reason for delay and that final judgment should be entered pursuant to Fed.R.Civ.P. 54(b) in favor of Leerkamp and against the plaintiffs.
ORDER ON MOTION TO DISMISS
This matter is before the Court on defendant Noblesville Chief of Police Dick Russell's motion to dismiss under Fed.R.Civ.P. 12(b)(6). Plaintiffs Ricky and Beth Beauchamp (the "Beauchamps") have alleged claims against Russell in his individual and official capacities under 42 U.S.C. § 1983 and Indiana law. The Beauchamps' claims against Russell stem from an allegedly unlawful arrest and prosecution of Ricky Beauchamp. After considering the parties' arguments, the Court concludes that the Beauchamps fail to state a claim against Russell under either federal or Indiana law. Accordingly, Russell's motion to dismiss is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter arose as a result of the filing of two criminal prosecutions in Hamilton County against Ricky Beauchamp, including attempted residential entry and rape, both of which were later dismissed. The Beauchamps then filed this action against Russell and several other defendants under Indiana and federal law. Russell argues that the official capacity claim against him under 42 U.S.C. § 1983 should be dismissed because it is essentially a claim against the City of Noblesville. He further argues that he cannot be held individually liable because there are no allegations that he was personally involved in the deprivation of Ricky Beauchamps' constitutional rights. Finally, Russell contends that he cannot be held liable under Indiana law because he was not the employer of the Noblesville police officers that arrested him. We will now consider those arguments.
II. STANDARDS A. MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(6)
Fed.R.Civ.P. 12(b)(6) permits the dismissal of a claim for "failure to state a claim upon which relief may be granted." United States v. Clark County, Indiana, 113 F. Supp.2d 1286, 1290 (S.D. Ind. 2000). When considering a motion under this rule, the Court must examine the sufficiency of plaintiffs' complaint, not the merits of the lawsuit. Id. Dismissal is appropriate only if it appears to a certainty that the plaintiffs cannot establish any set of facts which would entitle them to the relief sought. The Court shall accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Id.
B. 42 U.S.C. § 1983
Section 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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." 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Doe v. Eagle-Union Community School Corp., 101 F. Supp.2d 707, 717 (S.D. Ind. 2000), citing Livadas v. Bradshaw, 512 U.S. 107, 132. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. Doe, 101 F. Supp.2d at 717, citing West v. Atkins, 487 U.S. 42, 48 (1988). With these standards in mind, the Court will now address defendants' motion.
III. DISCUSSION A. OFFICIAL CAPACITY CLAIMS AGAINST RUSSELL
Russell asserts that the official capacity claim against him is essentially a claim against the City of Noblesville and must be dismissed. The Court agrees that such a claim is actually a claim against the City and is therefore duplicative. See Luck v. Rovenstine, 168 F.3d 323, 325 (7th Cir. 1999) (official capacity suit seeking damages is simply an action against the municipality for which the officer is an agent). Accordingly, the Court GRANTS defendant Russell's motion and dismisses WITH PREJUDICE the official capacity claim against him.
B. INDIVIDUAL CAPACITY CLAIMS AGAINST RUSSELL
While § 1983 creates a cause of action for damages based on personal liability, to establish such liability plaintiffs must show that Russell personally participated in the constitutional deprivation of which they complain. Blanton v. City of Indianapolis, 830 F. Supp. 1198, 1202-1203 (S.D. Ind. 1993). Thus, mere supervisory status, without more, will not create liability in a § 1983 action. Wilson v. Civil Town of Clayton, 839 F.2d 375, 384 (7th Cir. 1988).
Russell contends that plaintiffs have not alleged any personal involvement on his part sufficient to support a claim against him in his individual capacity. Plaintiffs alleged, in conclusory fashion, that Russell's "conduct in regard to the plaintiffs' rights was reckless, willful, and deliberately indifferent," and that he and other defendants allowed certain "instances of defective criminal prosecution to be commenced, or continued, with knowledge that no actual probable cause existed to do so . . . . or have acquiesced in such conduct." See Pls.' Complaint, ¶¶ 7, 39. Without citing any particular paragraph of their complaint, plaintiffs respond that their allegations at least "raise the inference that Russell failed to act, as the prosecution of Ricky W. Beauchamp did proceed." Pls.' Response Brief at 5.
While the Federal Rules of Civil Procedure provide a liberal notice pleading standard, plaintiffs' complaint must include either direct or inferential allegations with respect to all material elements of the claims asserted. Demick v. City of Joliet, 108 F. Supp.2d 1022, 1025 (N.D. Ill. 2000), citing Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). Bare legal conclusions attached to narrated facts will not suffice. Demick, 108 F. Supp.2d at 1025, citing Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985). Accord Bradley v. Work, 916 F. Supp. 1446, 1452 (S.D. Ind. 1996), aff'd. 154 F.3d 704 (7th Cir. 1998) (court is not required to accept plaintiffs' legal conclusions when deciding motion to dismiss for failure to state claim on which relief may be granted). Plaintiffs simply have not alleged any personal involvement on the part of Russell. They assert no facts explaining how Russell was deliberately indifferent to their rights, nor do they explain how he had knowledge of or acquiesced in the allegedly unlawful prosecution of Ricky Beauchamp. Because plaintiffs' bare legal conclusions are insufficient to survive a motion to dismiss, the Court GRANTS defendant Russell's motion and dismisses WITH PREJUDICE all claims against him in his individual capacity under § 1983.
C. CLAIM AGAINST RUSSELL UNDER INDIANA LAW
Although it is not entirely clear from their complaint, it appears that plaintiffs' state law claim against Russell is for intentional infliction of emotional distress, and that they attempt to hold Russell liable based upon the alleged conduct of his subordinates. Russell argues that because he is not plaintiffs' employer, he cannot be liable under a theory of respondeat superior. Plaintiffs concede that Russell cannot be held vicariously liable on this claim. Accordingly, the Court GRANTS defendant Russell's motion and dismisses WITH PREJUDICE all claims against him under Indiana common law.
IV. CONCLUSION
Plaintiffs have failed to state a claim upon which relief can be granted against defendant Russell. Accordingly, the Court GRANTS defendant Russell's motion to dismiss. All claims against defendant Russell are DISMISSED WITH PREJUDICE.