DOCKET

(10/11/19) --- * 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.  The case is back in the district court.

            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. 

 

            ATTORNEYS:           Stevie Pactor, Gavin Rose

 

FREEDOM OF SPEECH & ASSOCIATION

 

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.

            ATTORNEY(S):         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 and the matter has been appealed to the Seventh Circuit. The case is pending.

            ATTORNEY(S):         Gavin Rose

 

Pezzullo v. Town of Clarksville, Indiana (U.S. Dist. Ct. – So. Dist. of Indiana) [Filed 6/19]

            This is a challenge to a sign ordinance that limits the number of political signs that plaintiff post as well as the duration of the posting. A preliminary injunction hearing was held, but the Town has indicated it will be changing the ordinance and a ruling on the preliminary injunction has been stayed until a decision can be made whether and how to proceed once the new ordinances is enacted.

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

 

*Popp v. Monroe County Sheriff (U.S. Dist. Ct—So. Dist. of Indiana) [Filed 8/19]

            The plaintiff is an immigration attorney who commented critically on a post on the Facebook page of the Monroe County Sheriff that concerned the Sheriff’s enforcement of ICE detainers.  The Sheriff “hid” the plaintiff’s comments, meaning that they could be viewed by her but not by any other user, while allowing comments favorable to him to remain publicly viewable.  The case challenges this viewpoint-based discrimination as violative 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.

            ATTORNEY(S):         Gavin M. Rose

 

Small v. Scott County School District 2 et al (U.S. Dist. Ct—So. Dist. of Indiana) [Filed 5/19]

            Mr. Small was a senior in high school when he was illegally seized, searched, and expelled after posting to Facebook a clip of himself playing a video game.  The video game superimposed images of zombies over the “real-life” background of the hallway of Mr. Small’s school.  In the posted 7-second video clip, the video game character shoots at a cluster of zombies.  When school officials became aware of the video, they and a sheriff’s deputy removed Mr. Small from class, searched his backpack, arrested, and later expelled him.  We filed a lawsuit on First and Fourth Amendment grounds, challenging the illegal search and seizure, as well as his expulsion. 

            ATTORNEY(S):         Stevie J. Pactor, 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 parties have reached a settlement. 

            ATTORNEY(S):         Kenneth J. Falk

 

*Sweeney v. Brown et al (U.S. Dist. Ct. So. Dist. of Ind.) [Filed 8/26/19]

            This case challenges the policy/practice at Wabash Valley Correctional Facility that requires the destruction of legal mail (without first presenting it to the prisoner) when that mail is first mailed by a prisoner, but is then returned by the USPS as undeliverable. 

            ATTORNEYS:           Kenneth J. Falk, Stevie J. Pactor

 

LGBTQ ISSUES

 

Corrie v. Marion County Sheriff (U.S. Dist. Ct. – So. Dist. of Ind) [2/19)

            The plaintiff is a transgender woman who alleges that she was denied necessary hormones while incarcerated at the Marion County Jail I and II and the Johnson County Jail.  The case is pending.

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

 

Grove v. Jackson County Sheriff’s Dep’t (U.S. Dist. Ct. – So. Dist. of Ind.) [7/19]

            Plaintiff, although designated as male at birth, underwent gender confirmation/sex reassignment surgery and is therefore anatomically female. When she was sentenced to 10 days in the Jackson County Jail she was not allowed to be placed in general population with women, but was instead was placed in segregation, where she was subject to harsher conditions. The sole reason for this was that she was not deemed to be female by the Jail. The case is pending.

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

 

J.A.W. v. Evansville Vanderburgh School Corp. (U.S. Dist. Ct. –So. Dist. of Ind) [2/18]

            J.A.W. is a transgender male high school student who was denied the ability to use male restrooms in the schools. Following a preliminary injunction hearing in July the district court entered a preliminary injunction for the student. The school district originally appealed the case to the 7th Circuit, but dismissed the appeal. The case is now back with the district court on the issue of whether plaintiff is entitled to his damages. The Court granted our motion for summary judgment as to liability, and a trial as to damages is currently scheduled for January 2020. 

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

 

Stillwell v. The Individual Members of the Dysphoria Multidisciplinary Review Committee of Miami Correctional Facility (U.S. Dist. Ct. – No. Dist. of Ind.) [filed 2/19]

            The plaintiff is a transgender female prisoner who has been denied female hormones, despite receiving them prior to her incarceration. This action seeks an order that she be provided the hormones.

            ATTORNEYS:           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 is being appealed.

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

 

Neighbor to Neighbor, Inc. v. State of Indiana, et al. (U.S. Dist. Ct.—So. Dist. of Indiana) [11/18]

            Our client is a non-profit organizations that offers a variety of services and other assistance to international refugees and other recent immigrants in the South Bend area.  Many of the persons it serves speak and read a language other than English.  While the written examination that must be passed to receive their Indiana driver’s licenses is offered in fourteen different languages, the Indiana Driver’s Manual on which the written examination is based is offered only in English.  As a result, our client’s staff and volunteers spend countless hours attempting to teach persons the information covered in the Driver’s Manual.  This case challenges the failure to offer that manual in any language other than English as a violation of equal protection as well as Title VI of the Civil Rights Act of 1964. Summary judgment is being pursued.

            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.

            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 raise issues identical to the Hope case noted above, and has been consolidated with that case.

            ATTORNEY(S):         Gavin M. Rose   

 

PRISONERS' RIGHTS

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 class has been certified and the case is proceeding.

            ATTORNEY(S): Kenneth J. Falk

 

Fugate v. Martin, et al. (U.S. Dist. Ct. – So. Dist.) (Rec’d appointment 5/16)

            At the request of the District Court we have accepted appointment to represent the plaintiff in this case who has numerous complaints concerning medical treatment issues.  As required under Indiana law, the medical malpractice claims have been submitted to a panel of doctors appointed by the Indiana Department of Insurance, and the plaintiff has filed its initial submission and responsive submissions will be made in the coming months.  The IDOI issued a decision that is favorable to plaintiff, in part and the case proceeded. The matter is being settled.

            ATTORNEY(S): Kenneth J. Falk, private attorney Mark Sniderman

 

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

 

Huerta v. Ewing (U.S. Dist. Ct.—So. Dist. of Indiana) [ALCU 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 and the County has recently purchased property on which to build a new jail.

            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

 

LaCroix v. Commissioner, Indiana Department of Correction et al (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 8/19]

            This case challenges DOC and Wexford’s refusal to provide treatment (in the form of surgery) to correct Mr. LaCroix’s cataract.  His condition causes him pain and a loss of vision, and has also resulted in him being injured by stationary objects and other inmates. 

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

 

Littler v. Martinez, et al. (U.S. Dist. Ct.—So. Dist. of Indiana) [appointed 10/18]

            We have accepted appointed in this case filed by a pro se prisoner at Wabash Valley Correctional Facility who alleges that correctional officers utilized excessive force when he was extracted from his cell in December 2015 and that medical personnel were deliberately indifferent to his needs following that extraction.

            ATTORNEY(S):         Gavin M. Rose

 

*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 motion for class certification has been filed and remains pending.

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

 

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.  A motion to dismiss has been filed by the defendants and was denied.  The case has been settled and is open for monitoring.

            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.

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

 

Stone v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. –So. Dist. of Ind.) [Filed 10/18]

            The plaintiff is a male prisoner who suffers from gynecomastia, extreme swelling of the breast tissue, which is both painful and psychologically distressing. Despite recommendations from a specialist that he should receive surgery to correct the condition the defendants (the DOC and the DOC’s medical provider) are refusing to provide surgery. The case seeks both an order to provide the surgery and damages. It is proceeding.

            ATTORNEY(S):         Kenneth J. Falk

 

RELIGIOUS FREEDOMS & ESTABLISHMENT CLAUSE

Jones v. Commissioner, DOC (U.S. Dist. Ct. – So. Dist. of In.; Seventh Circuit Court of Appeals) [filed 10/16]

            This case, brought by a Muslim prisoner, challenges the failure of the DOC to provide a halal diet with halal meat.  The district court entered judgment in plaintiff’s favor.  The defendant appealed, and the case was argued before the Seventh Circuit by Jan Mensz.  The Seventh Circuit has ruled in our favor and the DOC’s petition for rehearing has been denied. The DOC sought and received an extension of time to file for certiorari in the U.S. Supreme Court, but did not seek review in the Supreme Court. The case is now over pending a resolution of plaintiff’s claim for attorneys’ fees and costs.

            ATTORNEY(S);         Kenneth J. Falk,   

 

*Lacey v. Brown et al, (U.S. Dist. Ct. – So. Dist. of Ind.) [filed 10/7/190

            This is a challenge to the denial of Satanic congregate worship and services at Wabash Valley Correctional Facility.  The complaint was just filed, and the defendants have not yet answered. 

            ATTORNEYS:   Stevie J. Pactor, 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. The County has filed a motion to dismiss and the matter is pending.

            ATTORNEY(S):         Gavin M. Rose

 

*Watkins v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist.) [filed 10/19}

            The plaintiff here is a prisoner who was denied a kosher diet for allegedly purchasing a non-kosher brownie, even though the brownie was marked as kosher. The case was recently filed.

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

 

Woodring v. Jackson Co., Indiana (U.S. Dist. Ct. – So. Dist.) [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. The County has filed a motion to dismiss that was recently denied. Cross-motions for summary judgment are being filed.

            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 State has not appealed the grant of the preliminary injunction, so the case will proceed.

            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, U.S Supreme Court) [Filed 4/16]

            This case challenges various aspects of HEA 1337, including the prohibition on obtaining abortions for certain reasons and the requirement that women seeking abortion services be informed of these prohibitions as part of Indiana’s so-called “informed consent” process. The law also requires that the fetal tissue that is a byproduct of an abortion or miscarriage in a clinic be disposed of in the same was deceased humans. The district court entered a decision in plaintiffs’ favor and the State has appealed. The Seventh Circuit ruled in our favor and the State asked for rehearing before the entire Court (rehearing en banc). That request was granted and then rescinded so the matter is now final in the Seventh Circuit. The State sought review in the U.S. Supreme Court through a petition for a writ of certiorari.   The Supreme Court denied review on the part of the law concerning prohibiting abortions for certain reasons – so the lower courts’ decision stands that found this portion of the law to be unconstitutional. However, the Court granted certiorari on the fetal tissue disposition part of the case and reversed the lower court decisions, thus reinstating that part of the law.  The case is now final pending resolution of plaintiffs’ claim for attorneys’ fees and costs.

            ATTORNEY(S);         Kenneth J. Falk, Gavin M. Rose,  Jennifer Dalven    (National         ACLU), Helene Krasnoff (National 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 7/16]

            This case challenges another provision of HEA 1337 that requires that ultrasound examinations be performed at least 18 hours before the abortion, as opposed to prior law that allowed the examinations to occur at the time of the abortion.   This will negatively impact the ability of women to obtain abortions and in light of recent Supreme Court precedent is an unconstitutional undue burden. A preliminary injunction hearing was issued and the State appealed. The Seventh Circuit issued a decision in PPINK’s favor in late July and the State has sought rehearing en banc, which was denied.  The State is seeking review in the U.S. Supreme Court. We are awaiting a decision as to whether or not the Supreme Court will grant review.

            ATTORNEY(S);         Kenneth J. Falk, Gavin M. Rose, Jennifer Dalven     (National         ACLU), Jennifer Sandman (National 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) [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 recently 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 the State has now sought review before the entire Court (rehearing en banc) and that matter is being briefed.

            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) [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. The State did not appeal and the parties have filed cross-motions for summary judgment.

            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

 

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. Summary judgment briefing will be complete in February.

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

          

Kinder v. Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Ind.) [filed 4/19]

            The plaintiff is a deaf prisoner who does not read lips who had a disciplinary hearing where his hands were chained so he could not write and where everything was done orally. The case alleges that this violates the Rehabilitation Act. The case is pending.

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

 

Kuntz v. DeKalb County Sherriff’s Department (U.S. Dist. Ct. – No. Dist. of Indiana) [Filed 9/18]

            Ms. Kuntz is a person with disabilities who uses a service animal. Law enforcement officers were called to a restaurant where she was eating with her family and service animal. The officers enforced the restaurant’s decision that she had to leave because of the animal. The officers demanded that she produce papers to show that the animal was a service animal, a request that violates the Americans with Disabilities Act. Once outside she had a panic attack, which the dog is trained to react to and assist with once she is laying down.  However, she was not allowed to lay down by the officers.  The lawsuit seeks damages for violation of Ms. Kuntz’s rights under the Americans with Disabilities Act and the Fourth Amendment.  A settlement has been reached in this case. 

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

 

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

 

New Horizons Rehabilitation, Inc. v. State of Indiana (U.S. Dist. Ct. So. Dist. of Ind.) [filed 3/16]

            After resolving the issues noted above with the City of Lawrenceburg, New Horizons was informed by the State of Indiana that it had to submit detailed plans for the supported living home and meet state-imposed requirements.  None of these requirements are imposed on other single-family dwellings that house nuclear families. The case alleges that this violates federal laws and equal protection. The district court entered a preliminary injunction in favor of plaintiff. The State did not appeal the preliminary injunction ruling and the parties filed for summary judgment and the Court recently entered summary judgment for plaintiff. The State did not appeal so the Judgement is now final. The case remains opens for resolution of plaintiff’s claim for attorney’s fees and for payment of the judgment that is owed to it by the State.

              ATTORNEY(S):       Kenneth J. Falk

                         

Romero-Ruvalcava v. Indiana Department of Correction (U.S. Dist. Ct. – So. Dist.) (1/18)

            The plaintiff is a former DOC prisoner who is blind. While incarcerated at the New Castle Correctional Facility he was tested and found eligible to participate in an educational program that, if completed, would have led to a time cut.  However, after passing the preliminary test he was told that because he was blind he could not attend the program because the DOC prisoner did not provide tools for visually impaired persons for this program. The case alleges that this violates the Rehabilitation Act, 20 U.S.C. § 701, et seq. A settlement has been reached in the case. The case will be closed.

            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

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. The Magistrate Judge agreed that contempt sanctions should issue and the defendants sought review of that determination before the Judge.

            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.  The case is pending.

            ATTORNEY(S):         Gavin M. Rose

 

Lopez-Aguilar v. Marion County Sheriff’s Department (U.S. Dist. Ct. – So/ Dist. of Ind., Seventh Circuit Court of Appeals) [Filed 9/16]

            The plaintiff appeared in court for a traffic citation when he was informed by a sheriff’s deputy that federal immigration officials (ICE) had been looking for him earlier in the day.  He was therefore held at the Marion County Jail overnight at which point he was transferred into ICE custody.  The case alleges that he was unconstitutionally arrested.  The parties proposed a settlement to the Court, although the United States has objected to that settlement because it would prohibit the Marion County Sheriff’s Department from taking certain actions in assistance of federal immigration enforcement. The district court approved the settlement. After the district court approved the settlement the State attempted to intervene in the case. This motion was denied but, on appeal, the Seventh Circuit decided that the State should have been allowed to intervene and that the agreed injunction should be vacated.  The case was remanded to the district court, and the parties recently reached a settlement that resulted in the dismissal of the case.

            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, and is pending.

            ATTORNEY(S):         Gavin M. Rose

Date filed

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