DOCKET

(7/8/20) --- * New since last report

Election Issues

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 and 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. Summary judgment is being pursued.

            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. We are currently pursuing a preliminary injunction.

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

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.  A motion for class certification has been filed, as has a motion for a preliminary injunction.  Both motions remain pending.

            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 the option of appealing that decision or allowing the case to go forward in the district court. At this point the State has not indicated what its decision will be.

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

*Indy 10 Black Lives Matter v Indianapolis [U.S. Dist. Ct. – So. Dist. of Ind.) [filed 6/20]

            This is a challenge to the violent reaction of the Indianapolis Metropolitan Police Department against persons protesting the murder of George Floyd. Both injunctive relief and damages are sought. We are currently pursuing a preliminary injunction.

            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. We have entered an appearance for him, and the case is proceeding.

            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

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

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. The parties have reached a settlement and are awaiting approvals to finalize it.

ATTORNEYS:            Kenneth J. Falk, Stevie J. Pactor

Taylor v. Raney (U.S. Dist. Ct. So. Dist. of Ind.) [ACLU appearance 3/10/19)

          The plaintiff prisoner filed a pro se case claiming damages for erroneous disciplinary confinement in violation of due process. We have agreed to represent the prisoner. The matter is being set for a settlement conference.

          ATTORNEYS:  Stevie J. Pactor, Gavin M. Rose

Wertz v. Brown (U.S. Dist. Ct. – So. Dist. of Ind.) [12/19]

            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.” This is a habeas corpus action that seeks to vacate the discipline. The matter has been briefed and is awaiting decision.

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

Williams v. Carter (U.S. Dist. Ct. – So. Dist. of Ind.) [12/19]

            This case raises the same issues concerning the constitutionality of the DOC’s policy of destruction of returned legal mail as does the Sweeney v. Brown case above.

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

Woods v. Carter (U.S. Dist. Ct. – So. Dist. of Ind.) [11/19]

            This case raises the same issues concerning the constitutionality of the DOC’s policy of destruction of returned legal mail as do the Sweeney and Williams cases above.

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

*Woods v. Sevier (U.S. Dist. Ct. – So. Dist. of Ind.) [6/20]

            Prisoners at New Castle Correctional Facility are being denied their right to have their mail to their attorneys reviewed only for contraband and then sealed in their presence. Instead, they must place it with their general mail that is read before it is mailed. A preliminary injunction will be sought.

            ATTORNEY(S):         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 matter has been settled and will be closed.

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

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 we are awaiting a decision from the Seventh Circuit.

            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 is pending.

            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   

 

Prisoners’ Rights

*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.

            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.  The parties are working on a settlement that should be finalized in the near future.

            ATTORNEY(S): Kenneth J. Falk

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 has been sought and the matter is pending.

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

*Hooten v Byrd (U.S. Dist. Ct. – So. Dist.) [6/20]

            Plaintiff was prescribed medication to relieve some of the neuropathic pain that he suffers because of multiple sclerosis. After medical staff only provided him with ½ the daily dose for three days he was given a blood test and when the test disclosed, not surprisingly, that he did not have the proper level of drug in his blood system, he was terminated from the medication. The case seeks an injunction to get him back on the medication and damages. It is pending.

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

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. 

            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 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

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.

            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] (omitted from last report

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

 

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

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

Taylor v. Commissioner et al (U.S. Dist. Ct. – So. Dist. of Indiana)

            This case seeks damages for a prisoner who was kept in segregation for 540 days, in violation of his due process rights.

            ATTORNEYS: Stevie J. Pactor and Gavin Rose

 

Religious Freedoms and Establishment Clause

Lacey v. Brown et al, (U.S. Dist. Ct. – So. Dist. of Ind.) [filed 10/7/19]

            This is a challenge to the denial of Satanic congregate worship and services at Wabash Valley Correctional Facility.  The matter is pending.

            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

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 is appealing the decision.

            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; 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 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. We will be filing statements of position with the Seventh Circuit and will see what the Seventh Circuit does. The preliminary injunction remains in effect.

            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, 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. We will be filing statements of position with the Seventh Circuit and will see what the Seventh Circuit does. The preliminary injunction remains in effect.

            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

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. It is pending.

            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. The case is pending.

            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

Smith v. Knight (U.S. Dist. Ct. – So. Dist. of Indiana (appointed 2/20)

            Stevie Pactor has been appointed to represent the plaintiff, a prisoner with a physical disability who must have the assistance of persons to push his wheelchair. Because of the absence of “pushers” he frequently is unable to get to the area where his medication is distributed. He therefore does not his necessary medication. He filed suit to challenge this and Stevie Pactor has been appointed to represent him.  The matter is pending.

            ATTORNEY(S):        Stevie Pactor

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. It is pending.

            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. A proposed settlement has been filed and is pending while notice to the class is being given.

            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

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.

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