DOCKET

(4/9/21) --- * New since last report

Election Issues

Common Cause of Indiana v. Lawson (U.S. Dist. Ct. – So. Dist. of Ind.; Seventh Circuit Court of Appeals) (Filed 10/17)

            This case alleges that a recent Indiana statute violates the federal National Voter Registration Act of 1993 by allowing voters to be purged from voter registration rolls prematurely. The district court entered a preliminary injunction in favor of the plaintiff, and the Seventh Circuit affirmed that decision.  While the case was pending on remand, the Indiana General Assembly amended the statute although the amended statute retained significant similarities to the original, enjoined statute.  The district court entered summary judgment in favor of the plaintiffs and enjoined enforcement of the amended statute.  The State has again appealed.

            ATTORNEY(S):   Gavin M. Rose, Stevie J. Pactor, ACLU and other national attorneys.

 

Hero v. Lake County Election Board (U.S. Dist. Ct. – No. Dist. of Ind.) [filed 8/26/19]

            This is a challenge to Mr. Hero’s removal from the ballot as a candidate for the St. John Town Council.  In early 2019, Mr. Hero filed the required paperwork in order to run as a member of the Republican Party for an at-large seat on the St. John Town Council.  Despite meeting the requirements to run for office as a Republican, he was removed from the ballot on the basis of a “ten-year ban” that he received from the state Republican party after he supported two independent candidates for local office. The suit seeks declaratory and injunctive relief on the basis that the actions of the election board violate the First and Fourteenth Amendments to the U.S. Constitution.  The case has been fully briefed at summary judgment and is currently pending.

            ATTORNEYS:           Stevie Pactor, Gavin Rose

 

Freedom of Speech and Association

*Allman v. Sheriff, Bartholomew County (U.S. Dist. Ct. – So. Dist.) (3/21)

            This is a challenge to a policy at the Bartholomew County Jail that allows phone, email, or video communications between prisoners and persons in the outside world to be suspended if either party uses “excessive profanity.” The case was recently filed.

            ATTORNEYS:            Kenneth Falk, Stevie Pactor

 

Berry v. Indiana Superintendent of Public Instruction (U.S. Dist. Ct. – So. Dist.) (3/19)

            The plaintiff is a filmmaker who released a film using footage that he shot while employed with the Indiana Department of Education, The Department of Education issued a cease-and-desist order demanding he withdraw the film. The case seeks a declaratory judgment that the plaintiff has the right under the First Amendment to publish and disseminate his work. Summary judgment has been filed and we are awaiting a decision.

            ATTORNEY(S):         Gavin M. Rose

 

Black & Brown Liberation v. City of Fort Wayne (U.S. Dist. Ct. – No. Dist. of Ind) [6/20]

            This is a challenge to the violent reaction of the Fort Wayne Police Department and the Allen County Sheriff against persons protesting the murder of George Floyd. Both injunctive relief and damages are sought. The case is being pursued.

            ATTORNEY(S):     Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor

 

Brake v. City of Fort Wayne (U.S. Dist. Ct. – No. Dist. of Ind.) [10/20]

            The plaintiff is a young man who was protesting in Fort Wayne following the murder of George Floyd. Police sought to disperse the crowd with teargas and Mr. Brake was shot directly in the face with a teargas cannister and sustained numerous injuries to his face and lost his eye. We are working with attorneys from Sidley Austin in Chicago on this case.

            ATTORNEY(S):         Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor, Sidley & Austin

 

D.E. v. Lippe (U.S. Dist. Ct. – No. Dist. of Ind.) [11/20]

            Our client is a high school student who has not allowed to wear a t-shirt that said “I HOPE I DON’T GET KILLED FOR BEING BLACK TODAY.” It did not cause disruption and students have been allowed to wear shirts that are pro-police. The case has been successfully resolved and will be closed.

            ATTORNEY:  Kenneth J. Falk

 

*England v. Jackson County Public Library (U.S. Dist. Ct. – So. Dist. of Ind.) [1/21]

            Our client is a resident of Seymour who frequents the public library.  He was banned from the library, however, after he left a poem – which was not threatening or vulgar but was critical of then-President Trump and his followers – at the circulation desk in November 2020.  The lawsuit alleges that this ban violates his First Amendment rights and that the failure to provide him a process to challenge the ban violates due process.

            ATTORNEY:  Gavin M. Rose

 

Gohmann Asphalt and Construction v. Cornetta (Clark Superior Court) [Filed 7/08]

            An employer involved in the construction of the I-69 Project is seeking a workplace violence restraining order against a group of environmental protesters.  We represent them in an effort to support their 1st Amendment rights.  We have filed for summary judgment and it was denied and interlocutory appeal was denied. 

            ATTORNEY(S):         Gavin Rose

 

Harnishfeger v. United States of America (U.S. Dist. Ct. – So. Dist. of Indiana; Seventh Circuit) [Filed 11/16]

            A former phone-sex operator wrote a short book about her experiences in that job in order to make sure persons were apprised of the predatory nature of some men.  She subsequently obtained a position as an AmeriCorps VISTA volunteer placed with the Indiana National Guard (as a civilian).  When her superiors at the Indiana National Guard discovered her authorship of the book, she was first removed from her placement with the Indiana National Guard and then terminated from participation in the VISTA program.  We filed a lawsuit on First Amendment grounds against both the state and federal officials responsible for these decisions.  The defendants have moved to dismiss the case, and we have sought summary judgment.  The district court dismissed the case, but the Seventh Circuit reversed with respect to one of the defendants. The case has been remanded back to the district court for further proceedings.

            ATTORNEY(S):         Gavin Rose

 

Hines v. White County Sheriff (U.S. Dist. Ct. – Nor. Dist. of Indiana) [Filed 6/20]

            This case challenges three policies in effect at the White County Jail in Monticello, Indiana: a policy prohibiting inmates from receiving newspapers; a policy prohibiting inmates from receiving books through the mail; and a policy prohibiting inmates from possessing or wearing religious jewelry.  The case has been certified as a class action.  We have also filed two related cases (Bearden v. White County Sheriff and Tran v. White County Sheriff) that address the same policies.

            ATTORNEY(S):         Gavin Rose; Stevie Pactor

 

Indiana Civil Liberties Union Foundation, Inc. v. Superintendent, Indiana State Police [U.S. Dist. Ct. – So. Dist. of Ind.) [filed 4/20]

            This case challenges Indiana’s panhandling statute, both its current version and the amended version that is effective July 1, 2020, as violative of the First Amendment. On June 30, 2020, the district court entered a preliminary injunction, enjoining the statute’s application. The State has not appealed the matter and the case is pending. However, there is proposed legislation that will repeal the challenged statute.

            ATTORNEY(S):     Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor

 

Kemp v. GEO Group (U.S. Dist. Ct. – So. Dist. of Ind) [ACLU appearance 2/20]

            Plaintiff is a prisoner who filed a pro se case alleging that he was kicked out of a beneficial program at New Castle Correctional Facility that would have supplied him with time cuts on completion because of activities protected by the First Amendment.  The case has been settled.

            ATTORNEY(S):        Gavin M. Rose

 

*Kloer v. Prescott (U.S. Dist. Ct. – So. Dist.) (Filed 4/21)

            The plaintiff was “blocked” from commenting on the Facebook page of Representative J.D. Prescott of the Indiana House of Representatives.  The lawsuit challenges this as viewpoint-based censorship in violation of the First Amendment.

            ATTORNEY(S):         Gavin M. Rose

 

*Newkirk v. Town of Knightstown (U.S. Dist. Ct. – So. Dist.) (Filed 2/21)

            The plaintiff, who formerly served as the Chief of Police, was “banned” from the Facebook page of the Knightstown Police Department.  The lawsuit challenges this as viewpoint-based censorship in violation of the First Amendment.

            ATTORNEY(S):         Gavin M. Rose

 

Sizelove v. Madison-Grant United School Corporation (U.S. Dist. Ct—So. Dist. of Indiana) [Filed 8/19]

            Randy Sizelove is a school bus driver who has spoken out against a proposed “reconfiguration” of his school district’s elementary schools.  As a result of his opposition to this reconfiguration plan, he was suspended for a week and has been threatened with harsher discipline if he continues to express his opinions in the future.  The case alleges that this violates his First Amendment rights. Partial summary judgment has been entered in our favor on liability, and the case is proceeding on our client’s damages.

            ATTORNEY(S):        Gavin M. Rose

 

Stader v. Pence (U.S. Dist. Ct. – So. Dist. of Ind.) [12/20]

            The plaintiff has been blocked from Rep. Greg Pence’s official Facebook account because of critical comments that she made in response to some of the Congressman’s posts. The case alleges that this violates the First Amendment. Injunctive and declaratory relief is sought. The matter is pending. The Congressman has unblocked the plaintiff and acknowledged that persons cannot be blocked because of their viewpoints. The matter will be closed.

            ATTORNEY(S):         Kenneth J. Falk

 

Sweeney v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Indiana; U.S. Court of Appeals for the Seventh Circuit [Filed 10/17]

            This case challenges a new policy of the DOC that requires that all incoming non-legal correspondence be in plain white envelopes and requires that the correspondence “be on originally purchased, plain white, lined paper (no photocopies).”  The case alleges that this violates the First Amendment. The Court certified the case as a class action and entered a preliminary injunction for the plaintiffs. The DOC dismissed its appeal of the preliminary injunction, and the reached a settlement. The district court found that the settlement was fair, reasonable, and adequate as required of class actions. The case remains open for monitoring.

            ATTORNEY(S):         Kenneth J. Falk

 

Wertz v. Gibson (U.S. Dist. Ct.—So. Dist. of Ind.) [12/20]

            The plaintiff is a prisoner who was punished through the loss of good time after informing prisoners of their right to file grievances to protest prisoner conditions. He was found guilty of the offense in the DOC disciplinary code of “rioting.” We filed a habeas corpus case for the plaintiff and the Court found that the discipline was improper and vacated it. We have now filed a lawsuit seeking damages for the violation of his constitutional rights.

            ATTORNEY(S):         Kenneth J. Falk

 

LGBTQ ISSUES

Loveday v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Ind.) [1/20]

            The plaintiff is a transgender DOC prisoner who has been receiving feminizing hormones. She has been denied gender reassignment surgery because of a policy of treating this surgery as not medically necessary., The lawsuit seeks an injunction to force the DOC and its medical provider to have third-party mental health professionals evaluate the plaintiff and that she be provided the surgery if recommended by the professionals. The case is pending.

            ATTORNEY(S):         Kenneth J. Falk, Stevie J. Pactor

 

Miscellaneous

Hope v. Commissioner of the Indiana Department of Correction (U.S. Dist. Ct. – S.D. Ind.) (U.S. Court of Appeals for the Seventh Circuit) [Filed 10/16]

            In a 2009 case the Indiana Supreme Court held that requiring an individual to register as a sex offender when the person committed his or her offense prior to the time the law had imposed the registration obligation violated the Indiana Constitution’s prohibition on ex post facto punishments.  Nonetheless, the Indiana Supreme Court holds that it does not violate the state constitutions to require persons to register if they were previously required to register in another jurisdiction.  Two of the three plaintiffs were convicted in Michigan and then moved here; and the third was convicted in Indiana, moved to Texas for a period of time, and then returned.  If any of them had been convicted in Indiana and never left the state, they would not be required to register.  The case alleges that requiring them to register due to their travel between states violates the due process right to interstate travel and equal protection.  It also alleges that requiring them to register violates the federal constitution’s ex post facto clause.  We received a preliminary injunction and summary judgment was recently entered in our favor.  The case was appealed, and a panel of the Seventh Circuit ruled in plaintiffs’ favor. The Court, however, granted rehearing en banc and argument is set for May 20th.

            ATTORNEY(S):         Gavin M. Rose, Stevie J. Pactor

Ostrowski v. Lake County, Indiana, et al. (U.S. Dist. Ct.—Nor. Dist. of Indiana) [11/18]

            Under Indiana law, county sheriffs may create a pension plan for their employees and, in so doing, may allow for cost-of-living increases in payments following employees’ retirement.  Under the plan created by the Lake County Sheriff, “normal” retirees as well as surviving spouses receive annual cost-of-living increases in their pension payments.  However, persons who are forced to retire because of disability do not receive such increases.  This case alleges that that differential treatment violates equal protection as well as the ADA. Summary judgment was recently entered in the defendants’ favor.

            ATTORNEY(S):         Gavin M. Rose, Stevie J. Pactor

Rice v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Ind.) [12/17]

            This case raises issues identical to the Hope case noted above and has been consolidated with that case.

            ATTORNEY(S):         Gavin M. Rose   

 

Rights of People Who are Incarcerated

Bailey v. Andrews (U.S. Dist. Ct. – So. Dist.) [6/20]

            While a prisoner the plaintiff was maliciously, without cause, sprayed with pepper spray by the defendant correctional officer. The plaintiff seeks his damages. The case is proceeding.

            ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor

 

Bell v. Henry County Sheriff (U.S. Dist. Ct. – So. Dist.) (Filed 2/19)

            This case challenges the conditions of confinement at the Henry County Jail. A settlement was reached to build a new facility. The case is open for monitoring.

            ATTORNEY(S): Kenneth J. Falk

 

*Blanchard v. Hyatte (U.S. Dist. Ct. – No. Dist.) (Filed 3/21)

            The plaintiff is a prisoner at Miami Correctional Facility. He was confined in segregation for more than 30 days in a cell that had no light and had a window sealed by a metal plate. We allege that this confinement was a violation of his 8th amendment right to be free from cruel and unusual punishment.

            ATTORNEY(S):         Kenneth J. Falk

 

*Calderon v. Duszynski (U.S. Dist. Ct. – No. Dist.) (Filed 4/21)

            The plaintiff is a prisoner who previously worked in the sign shop at the Indiana State Prison.  For more than a year, he was verbally, physically, and sexually abused by his direct supervisor at the sign shop, who was at the time a DOC employee.  The complaint, which also names as a defendant a second supervisor who failed to intervene to prevent this abuse, alleges that this abuse violated the Eighth Amendment.

            ATTORNEY(S):         Gavin M. Rose

 

Copeland v. Wabash County (U.S. Dist. Ct. – No. Dist.) (Filed 2/20)

            This is a challenge to the conditions of the Wabash County Jail. Class certification was denied without prejudice and recently plaintiffs have again requested that the case be certified as a class action.  The defendants have recently indicated that they intend to build a new Jail, and the parties are in discussion as to possible resolution. 

            ATTORNEY(S):  Stevie J. Pactor, Kenneth J. Falk

 

Hos v. Vigo County Sheriff (Vigo Superior Court) [Filed 8/13]

            As part of a settlement entered into in 2002 the Vigo County Sheriff and Commissioner agreed to a population cap of 268 on the Vigo County Jail and agreed that prisoners should be allowed recreation 3 times a week. The population has greatly exceeded that amount and prisoners are not getting the requisite amount of recreation. This is a breach of contract action filed in state court to require the defendants to comply with the contract. It has been stayed in deference to the Huerta case below.

            ATTORNEY(S):         Kenneth J. Falk

 

Huckeby v. Sheriff of Henry County (U.S. Dist. Ct.—So. Dist. Of Indiana)

            This is an action against the Sheriff of Henry County for failing to treat an inmate’s seizure condition while he was incarcerated in the jail.  After ten days without medication or treatment, and hundreds of seizures, Mr. Huckeby was left unable to walk or swallow.  He was admitted to the hospital and placed on a feeding tube for over a week.  We filed a case seeking damages for violation of his Eighth Amendment rights. This matter reached a resolution through settlement.      

            ATTORNEYS: Stevie J. Pactor, Gavin Rose

 

Huerta v. Ewing (U.S. Dist. Ct.—So. Dist. of Indiana) [ACLU appointed 4/18]

            This is a class action lawsuit challenging conditions at the Vigo County Jail, Kenneth Falk has recently been appointed to represent a class consisting of all the prisoners in the Jail and summary judgment has been filed. The district court has entered summary judgment for the prisoners, finding that the conditions in the Jail violate the Eighth and Fourteenth Amendments. The Court has scheduled frequently hearings to monitor progress towards building a new jail . The new jail is being built

            ATTORNEY(S):         Kenneth J. Falk, private counsel Michael Sutherlin

 

Indiana Protection and Advocacy Services Commission v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct.—So. Dist. of Indiana)

            This case challenges the continued confinement of seriously mentally ill prisoners by the Department of Correction in segregated or extremely isolated prison environments.  The case is brought on behalf of Indiana Protection and Advocacy Services which is charged by federal law for advocating on behalf of the mentally ill.  We have added prisoners and class has been certified and we are moving forward.  The case was tried in July of 2011 and the trial court recently ruled in plaintiffs’ favor, finding that the treatment of these seriously mentally ill prisoners violates the 8th amendment.  A final settlement has been negotiated and has been allowed to go into effect.  The case remains open for monitoring.

            ATTORNEY(S):        Kenneth J. Falk, Gavin Rose, attorneys from Indiana             Disability Rights

 

Marbley v. Tafoya (U.S. Dist. Ct. – So. Dist. of Ind.) [filed 12/19]

            This case challenges the failure to provide the plaintiff-prisoner with medically necessary cataract surgery and asks for an injunction to provide the surgery. The case is proceeding.

            ATTORNEY(S):         Kenneth J. Falk, Stevie J. Pactor

 

Miller v. Marshall County, Indiana (U.S. Dist. Ct.—No. Dist. of Indiana) [Filed 9/19]

            This is a case challenging the conditions at the Marshall County Jail.  A class has been certified.

            ATTORNEY(S):         Gavin M. Rose; Stevie J. Pactor

 

Morris v. Sheriff of Allen County (U.S. Dist. Ct. – No. Dist. of Ind) [Filed 1/20]

            This is a challenge to the conditions at the Allen County Jail. A class has been certified and the matter is proceeding.

            ATTORNEY(S):         Kenneth J. Falk, Stevie J. Pactor, Samuel Bolinger (cooperating counsel)

 

*Raley v. Henry County Sheriff  (U.S. Dist. Ct. – So. Dist. of Indiana) [filed 2/21]

            The plaintiff was attacked by a Henry County Jail Deputy causing injuries for which he was hospitalized. The case seeks damages and is pending. However, it has been stayed pending the resolution of criminal charges against the now-former Deputy arising, in part, from the attack on the plaintiff in this case.

            ATTORNEY(S):  Kenneth J. Falk

 

Richardson v. Monroe County Sheriff (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 2/08]

            This is a case challenging the conditions at the Monroe County Jail.  The case has been settled and is open for monitoring.

            ATTORNEY(S):         Kenneth J. Falk

 

Roberts v. Henry Co. Sheriff  (U.S. Dist. Ct. – So. Dist. of Ind.) [12/20]

            The plaintiff was attacked by a Henry County Jail Deputy causing injuries for which he was hospitalized. The case seeks damages and is pending.

            ATTORNEY(S):  Kenneth J. Falk

 

Shanks v. Clark Co. Sheriff (U.S. Dist. Ct. – So. Dist. of Ind.) [11/20]

            The case alleges that while a prisoner in the Clark County Jail the plaintiff was subjected to sexual harassment and abuse by two Jail deputies. Damages are sought and the case is pending.

            ATTORNEY(S):   Kenneth J. Falk

 

Stilwell v. Sheriff of Gibson Co. (U.S. Dist. Ct. – So. Dist. of Indiana) [filed 2/19]

            This case challenges the conditions of confinement at the Gibson County Jail. The case is proceeding. The parties have stipulated to the case proceeding as a class action.  A settlement has been reached in this matter that will result in the construction of a new Jail. The matter remains open for monitoring.

            ATTORNEY(S):         Stevie J. Pactor, Kenneth J. Falk

 

Religious Freedoms and Establishment Clause

*Felton v. Commissioner (U.S. Dist. Ct. – So. Dist.) (Filed 4/20)

            This case was originally filed in April 2020 although we inadvertently failed to report it on the docket at the time.  Gavin apologizes.  The plaintiff is a prisoner at New Castle Correctional Facility who practices Druidism, a religion that borrows from ancient Celtic traditions.  He and other Druid inmates have been prohibited from meeting for corporate worship separate from Wiccan inmates.  The complaint alleges that this violates the Religious Land Use and Institutionalized Persons Act.  The district court recently indicated that we are entitled to a preliminary injunction although a preliminary injunction has not yet issued.

            ATTORNEY(S):         Gavin M. Rose

 

*Glenn v. Warden, Pendleton Correctional Facility (U.S. Dist. Ct. – So. Dist.) [filed 3/21]

            The plaintiff is a prisoner who is an adherent of the Eastern Orthodox faith. He is not allowed to receive small two-dimensional icons on cardstock. The lawsuit claims that this violates the Religious Land Use and Institutionalized Persons Act. The case was recently filed.

            ATTORNEY(S):         Kenneth J. Falk

 

LaMunion v. Fulton Co., Indiana (U.S. Dist. Ct. – No. Dist. of In.) [filed 12/18])

            This is a challenge to a Nativity scene that is placed annually on the lawn of the Fulton County Courthouse. It seeks to prevent such placement in the future.  Following the Seventh Circuit’s decision in the Woodring case, below, we voluntarily dismissed the case and it is being closed.

            ATTORNEY(S):         Gavin M. Rose

 

Veal v. Warden (U.S. Dist. Ct. – So. Dist. of Ind.) [12/20]

            Plaintiff is an adherent of the Hebrew Israelite faith that celebrates the Sabbath for the 24-hour period beginning at sundown on Friday. Policy has been changed at Pendleton Correctional Facility that prohibits religious meetings on the weekends or during evening hours. The suit alleges that this violates the Religious Freedom Restoration Act. The matter is pending.

            ATTORNEY(S):         Kenneth J. Falk

 

*Williams v. Indiana Department of Correction (Marion Superior Court) [filed 2/21]

            The plaintiff is Muslim and receiving a kosher diet as a halal substitute. He briefly removed himself from the kosher diet for a legitimate reason and has not been allowed to receive it again. The case alleges that this denies him his rights under the federal Religious Land Use and Institutionalized Persons Act and Indiana Religious Freedom Restoration Act (“RFRA”). Injunctive relief is sought under both statutes and damages are sought under RFRA.

            ATTORNEY(S):         Kenneth J. Falk

 

Woodring v. Jackson Co., Indiana (U.S. Dist. Ct. – So. Dist., Seventh Circuit) [filed 12/18]

            This is a challenge to a Nativity scene posted annually on the lawn of the Jackson County Courthouse. It seeks to prevent such placement in the future. Cross-motions for summary judgment were filed and the Court entered judgment for the plaintiff, preventing the Nativity scene from being put in the courthouse lawn. The County appealed the decision and the Seventh Circuit reversed, 2-1, holding that the display was constitutional. The matter is being closed.

            ATTORNEY(S):         Kenneth J. Falk, Stevie J. Pactor

 

Reproductive Rights

Bernard v. Individual Members of the Indiana Medical Licensing Board (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 4/19]

            This is a challenge to the constitutionality of House Enrolled Act 1211, which would have the effect of banning dilation and evacuation abortions, which is the abortion procedure used in the majority of abortions performed after the early part of the second trimester. The law was scheduled to go into effect on July 1, 2019. The Court granted a preliminary injunction on June 28, 2019, preventing the law from going into effect. The case is set for trial in July.

            ATTORNEY(S):         Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor, attorneys from    national ACLU and Planned Parenthood

 

Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health (U.S. Dist. Ct – So. Dist. of Ind., Seventh Circuit Court of Appeals, United States Supreme Court) [Filed 5/17]

            This case challenges portions of Senate Enrolled Act No. 404 that amends Indiana law to:

1) provide that in a bypass proceeding where a minor can seek judicial permission to obtain an abortion without parental consent the court can order that notice be provided to the parent; requires physicians to execute an affidavit where a parent consents to a minor’s abortion after receiving a photo id and other unspecified evidence that “a reasonable person under similar circumstances would rely on the information provided . . . as sufficient evidence of [the] identity and relationship” between the minor and parent, and (3) prohibit persons from aiding or assisting an unemancipated minor from seeking an abortion from obtaining one without satisfying the consent or bypass requirements under Indiana law.  This last provision would prohibit PPINK from advising minors that they could obtain abortions out of state.  A preliminary injunction was granted, and the State is appealing the portion of the preliminary injunction prohibiting it from enforcing the parental-notice requirement.  The Seventh Circuit affirmed by a 2-1 decision and rehearing en banc was denied. The State sought review in the United States Supreme Court. On July 2, 2020, the Supreme Court granted certiorari and remanded the case back to the Seventh Circuit for reconsideration in light of June Medical Services. The Seventh Circuit again affirmed the District Court and the State has again sought review in the U.S. Supreme Court.

            ATTORNEY(S);         Kenneth J. Falk, Gavin M. Rose, and attorneys from the             national ACLU and Planned Parenthood.

 

Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health (U.S. Dist. Ct – So. Dist. of Ind; U.S. Court of Appeals-Seventh Circuit) [Filed 4/18]

            This case challenges to provisions of Indiana’s 2018 abortion law, which requires medical providers to report “all abortion complications.” As of August 31. 2019, failure to file the report is a crime. However, the law goes into effect on July 1, 2018, and failure to comply can lead to disciplinary consequences for doctors and administrative consequences for Planned Parenthood. The term “abortion complication” is defined so broadly and uncertainly that it is impossible to know what is or is not an abortion complication. Examples are given in the law, but many of the examples are not complications associated with abortions or are normal, transient, side effects of abortion. The provision is being challenged both on due process and equal protection grounds. Additionally, the law requires that abortion clinics be inspected annually for licensure, as opposed to hospitals and ambulatory surgical centers that can be inspected every other year. A preliminary injunction was entered on June 28, 2018. Plaintiff was then awarded summary judgment and the State appealed the case to the Seventh Circuit. It was argued in January of 2021 and we are awaing a decision.

            ATTORNEY(S);         Kenneth J. Falk, Gavin M. Rose, and attorneys from the national           ACLU and Planned Parenthood

 

Rights of Those with Disabilities and Medicaid

Blade v. City of Richmond (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 7/04]

This case challenges the lack of accessible sidewalks in Richmond, Indiana.  A settlement has been reached and has been approved by the Court.  It is open for monitoring.

ATTORNEY(S): Kenneth J. Falk

 

Cantrell v. Town of Liberty (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 2/02]

This is a challenge under the ADA to the fact that the Town of Liberty does not have accessible sidewalks.  The case has been settled in plaintiff’s favor.  It remains open for monitoring as the sidewalks are made accessible.

ATTORNEY(S): Kenneth J. Falk

 

Caylor v. Indiana Family and Social Services Administration (Fayette Superior Court) [Filed 10/12]

The plaintiff is a serious disabled adult who requires constant care and supervision and receives services through the Medicaid waiver program to receive this care and supervision.  As a result of new service limitations that are being imposed on waiver recipients, the plaintiff’s services have been dramatically reduced.  The lawsuit alleges that this violates the ADA, as well as state and federal Medicaid law.  This case presents the same issue as the Smith case and the Chickadaunce case below.  The case has been stayed pending a resolution to the Chickadaunce case.

ATTORNEY(S):         Gavin Rose, Nicole Goodson (private attorney)

 

Chickadaunce v. Minott (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 8/13]

            The plaintiffs are three individuals who are enrolled in a home-and-community-based Medicaid waiver program in Indiana.  They have been assigned by the State to a category of individuals that require 24/7, or almost 24/7 care.  However, the State has promulgated limits on services that are far lower than this level of care.  The lawsuit challenges these service limits as violative of the Medicaid Act and the Americans with Disabilities Act.  The plaintiff class has been certified, and summary judgment was filed.  This case presents the same issue as presented by the Smith and Caylor cases.  The case has now been stayed as the agency contemplates making changes to its waiver program.

            ATTORNEY(S):         Gavin Rose

 

Culvahouse v. City of LaPorte (U.S. Dist. Ct.—No. Dist. of Indiana) [Filed 5/06]

            This is a class action challenge to the failure of LaPorte to have sidewalks that are accessible to disabled persons as required by the Americans with Disabilities Act.  Both sides have sought summary judgment.  The trial court has entered partial summary judgment in plaintiffs’ favor.  The parties have entered into a settlement of all remaining issues and the case is open for monitoring.

            ATTORNEY(S):         Kenneth J. Falk

 

Ellison v. United States Postal Service (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 3/20]

            The case challenges the fact that the Shelbyville post office is not accessible to the client, a person with a physical disability. Summary judgment is being pursued.

            ATTORNEY(S):        Kenneth J. Falk, Stevie J. Pactor

 

Hizer v. United States Postal Service (U.S. Dist. Ct. – No. Dist. of Ind.) [Filed 12/17]

            This case challenges the fact that the post office in Winamac is not accessible to persons with mobility impairments in alleged violation of federal law. Plaintiff filed for summary judgment, but defendant has proposed doing alterations to make the post office accessible. This case has reached a settlement and an accessible entrance has been constructed and the matter will be closed.

            ATTORNEY(S): Stevie J. Pactor, Kenneth J. Falk

 

Meeker v. Kosciusko Community Fair, Inc. (U.S. Dist. Ct. – No. Dist. of Indiana) [Filed 9/14]

            The client, who is a person with disabilities, challenges the lack of accessibility of the Kosciusko County Community Fair fairgrounds.  A settlement has been filed and has been approved.  The case remains open for monitoring.

            ATTORNEY(S):         Kenneth J. Falk

 

Smith v. Indiana Family and Social Services Administration (Monroe Circuit Court) [Filed 10/12]

The plaintiff is a serious disabled adult who requires constant care and supervision and receives services through the Medicaid waiver program to receive this care and supervision.  As a result of new service limitations that are being imposed on waiver recipients, the plaintiff’s services have been dramatically reduced.  The lawsuit alleges that this violates the ADA, as well as state and federal Medicaid law.  A motion for preliminary injunction has been filed.  This case presents the same issue as the Caylor case and the Chickadaunce case above.  The case has been stayed pending a resolution to the Chickadaunce case.

ATTORNEY(S):         Gavin M. Rose

 

Targett v. City of Brazil (U.S. Dist. Ct.- So. Dist. of Indiana) [Filed 8/00]

This case challenges the failure of the City of Brazil to maintain accessible sidewalks in violation of the ADA.  Discovery is being done.   A settlement was approved.  Contempt was filed since it is alleged the City has not complied with the settlement.   We entered a new settlement which the City did not comply with and we again sought contempt.  The matter was resolved, and we are monitoring.

ATTORNEY(S): Kenneth J. Falk

 

Search and Seizure Issues

Freeman v. Gutierriez (U.S. Dist. Ct. – No. Dist. of Ind.) [filed 11/19]

            The case alleges an unlawful search and arrest of the plaintiff and unlawful seizure of his automobile. The matter is pending.

            ATTORNEY(S): Stevie J. Pactor, Gavin M. Rose

 

Griffith v. Town of Roann (U.S. Dist. Ct. – No. Dist. of Ind.)  [Filed 1/20]

            The Town of Roann entered plaintiff’s property without a court order and seized and destroyed property it deemed to be trash. The case alleges that this violated both the Fourth Amendment and due process. The case has been settled and will be closed.

            ATTORNEY(S):  Kenneth J. Falk, Stevie J. Pactor

 

Gutierrez v. City of East Chicago (U.S. Dist. Ct. – No. Dist. of Ind.) [Filed 3/16]

            This is a challenge to the policy of the Housing Authority of East Chicago of conducting warrantless searches and inspections of tenants’ apartments without cause or consent, including some searches that are clearly for criminal investigatory purposes.  A preliminary injunction was issued in plaintiff’s favor and we have sought summary judgment. In the meantime, plaintiff has sought contempt sanctions against the Housing Authority for violating the preliminary injunction. Contempt was found. The matter has been successfully settled.

            ATTORNEY(S):   Gavin M. Rose, Kenneth J. Falk

 

Jerger v. Blaize (U.S. Dist. Ct. – So. Dist.) (2/18)

            This case challenges the DCS investigation into the parents of a 2-year-old child with epilepsy.  After the child was prescribed a medication to control her seizures, the parents did independent research to discover the potential side-effects of that medication, and subsequently decided to use natural remedies first even though they ultimately placed their child on the medication.  When DCS investigated the complaint, they required a blood draw from the child even though she had already been placed on the medication.  The case alleges that DCS’s investigation violates due process and that the blood draw violates the Fourth Amendment. The defendants moved to dismiss the case, but that motion was denied.  Summary judgment motions are pending.

            ATTORNEY(S):         Gavin M. Rose

 

Rock, et al. v. Pagel, et al. (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 12/19]

While driving in Noblesville, Indiana, Timothy Rock and Danielle Upton were stopped by an officer of the Noblesville Police Department, purportedly because they had come to a stop in front of the marked stop line at a red light.  In reality they had not done so.  They were then removed from their vehicle, “patted down,” and detained while their vehicle was searched based on the fact that officers indicated that they smelled marijuana emanating from the vehicle, even though the search revealed no drugs or anything else untoward.  While Mr. Rock was permitted to leave without even a traffic citation after multiple searches of the vehicle revealed nothing, Ms. Upton was arrested for allegedly resisting law enforcement.  While she was released from the jail later that day, criminal charges were not dismissed until months later, when the criminal court determined the initial stop of the vehicle to have been unconstitutional.  The case alleges that three officers violated Mr. Rock’s and Ms. Upton’s Fourth Amendment rights in a variety of manners. The case has been amicably resolved and the matter is being closed.

ATTORNEY(S):         Gavin M. Rose

 

Shattuck v. Anderson, et al. (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 9/19]

            As a result of a previous instance where he was falsely accused of abusing one of his children, the plaintiff refused to permit DCS case managers to enter his house.  Rather than returning on a different occasion or obtaining a warrant, the case managers requested law enforcement assistance and several deputies from the Vigo County Sheriff’s Department forced entry into the plaintiff’s house by breaking down his door.  Both the DCS employees and the employees of the Sheriff’s Department then remained for nearly an hour, even though no warrant was obtained an no exception to the warrant requirement existed.  The case names as defendants both the DCS employees and the employees of the Sheriff’s Department.  The Court entered partial summary judgment in the plaintiff’s favor in the issue of liability and the case is proceeding toward the damages phase.

ATTORNEY(S):         Gavin M. Rose