Appellate court dismisses Lake County, sheriff’s department from complaint filed by man who was tased

Plaintiffs who changed counsel and amended their complaint in their lawsuit against a Lake County sheriff’s deputy will not get to include new defendants because the Court of Appeals of Indiana found they failed to show that the omission of the Lake County Sheriff’s Department and Lake County in the original complaint was a mistake.

After fleeing a traffic stop by two security officers in his subdivision, John Klisurich was apprehended in his home by Lawrence Obregon, a Lake County Sheriff’s Department deputy, and Brandon Henderson, an officer with the Indiana State Police. About two years later, in December 2016, Klisurich and his family sued Obregon, claiming the deputy “administered corporal punishing by intentionally and maliciously tasering” Klisurich even though he was handcuffed.

In July 2020, with new counsel, the plaintiffs field an amended complaint. Unlike the original complaint, the new filing identified Obregon as a law enforcement officer with the LCSD and alleged he was acting within the scope of his employment. Also, the plaintiffs named the sheriff’s department and Lake County as defendants and asserted claims for negligence, battery, intentional infliction of emotional distress, negligent infliction of emotional distress and trespass. Against Obregon, the plaintiffs asserted new claims for violations of the Fourth Amendment and 42 U.S.C. § 1983.

Obregon moved to dismiss the amended complaint, arguing the new federal claims were untimely. Also, his attorney, who had not entered an appearance on behalf of the sheriff’s department and Lake County, argued the claims against them were barred by the statute of limitations.

The Porter Superior Court denied the motion to dismiss in April 2021, and the defendants filed an interlocutory appeal.

In Lake County, Indiana, et al., v. John Klisurich, et al., 21A-CT-1335, the Court of Appeals affirmed the inclusion of the federal charges against Obregon but reversed part of the trial court’s ruling by dismissing the sheriff’s department and Lake County from the case.

The appellate panel was not swayed by the sheriff department and Lake County’s argument that the lawsuit against them was timed barred by the statute of limitations. Citing Porter Cty. Sheriff Dep’t v. Guzorek, 857 N.E. 2d 363 (Ind. 2006), the Court of Appeals concluded LCSD and Lake County would have been informed of the lawsuit by Obregon because he asserted, in his answer to the original complaint, affirmative defenses including that he was immune from liability.

However, the appellate court agreed with LCSD and Lake County that the plaintiffs did not make a mistake by omitting them as defendants in the original complaint. The Court of Appeals, pointing out that the plaintiffs did not attempt to bring LCSD and Lake County into the complaint until years after the original lawsuit had been filed, determined Klisurich and his family made a “conscious and tactical choice” of whom to sue and what allegations to present.

“Thus, not withstanding our conclusion … that LCSD and Lake County had notice of the lawsuit, the Plaintiffs did not meet their burden of demonstrating that the failure to name LCSD and Lake County in the original complaint was a mistake,” Judge Robert Altice wrote for the court. “Our review leads us to conclude that Plaintiffs made a strategic decision to omit LCSD and Lake County from the original complaints. The Amended Complaint, filed after the expiration of the statute of limitations, does not relate back and thus is untimely.”

The case was remanded to dismiss the county and sheriff’s department from the complaint.

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