DOCKET

last updated: 1/10/23
* = New case since last report

 

Freedom of Speech and Association

Bentz v. Zay (U.S. Dist. Ct. – No. Dist. of Ind) (Filed 8/220

    State Senator Zay removed the comments of 1 constituent and blocked 2 others from his official Facebook page. The case alleges that this violates the First Amendment. A preliminary injunction will be sought.

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


Evans v. Commissioner, Indiana Dep’t of Corr. (U.S. Dist Ct. – So. Dist. of Ind.) [Filed 5/22]

    DOC policy prohibits prisoners from receiving photobooks directly from publishers—bound books of colored photographs. The case argues that this violates the First Amendment. We have filed for a preliminary injunction that has now been consolidated with the merits.  The matter is fully briefed and pending decision.  

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


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 and both parties filed for summary judgment. A decision for our client on liability has recently been entered by the district court and the parties subsequently settled the case.  The case will therefore be closed.

    ATTORNEY(S):    Gavin Rose 


Human Rights Defense Center v. Redman (U.S. Dist. Ct. – No. Dist.) [Filed 6/22]

    The St. Joseph County Sheriff has a policy that prevents prisoners from receiving unsolicited written material and also has indicated that the Jail will not accept material with staples. This action is brought by the publisher of Prison Legal News and other publications for prisoners and challenges the policies as violating the First Amendment. The matter is pending.

    ATTORNEY(S):    Kenneth J. Falk, Stevie J. Pactor, and attorneys from the 
                Human Rights Defense Center

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


The Bail Project v. Commissioner, Indiana Dep’t of Insurance (U.S. Dist. Ct. – So. Dist. of Ind; U.S. Court of Appeals for the Seventh Circuit) [Filed 5/22]

    This is a challenge to a new Indiana statute, effective July 1, 2022, that severely limits the persons for whom The Bail Project may pay bail and also subjects it to vague and uncertain licensing standards. A preliminary injunction was sought, but was denied, and the matter has been briefed and argued in the 7th Circuit.

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

 

LGBTQ ISSUES


AC v. Metropolitan School District of Martinsville et al (U.S. Dist. Ct. – So. Dist. Of Ind., Seventh Circuit Court of Appeals) [12/21]  

    The plaintiff is a transgender 12-year old boy who attends a middle school within the Metropolitan School District of Martinsville.  He has been diagnosed with and receives treatment for gender dysphoria.  He wishes to use male facilities in the school and to participate on the boys’ soccer team, which he has been denied.  He has been required to use either the girls’ restrooms or the single-person restroom in the nurse’s office.  The district court granted a preliminary injunction and the school district has appealed to the Seventh Circuit.  This appeal has been consolidated with the appeal of the B.E. case, and it is fully briefed.  It is set for oral argument in February.

ATTORNEYS:    Kenneth J. Falk, Stevie J. Pactor, Megan Stuart from Indiana Legal Services


AM v. Indianapolis Public Schools (U.S. Dist. Ct. – So. Dist. of Ind., Seventh Circuit Court of Appeals) [5/22]

    This case challenges HEA 1041, the 2022 Indiana statute, passed over the Governor’s veto, that prohibits transgender females from playing female sports. Our client is a 10-year-old who has been playing with her school’s girls softball team. We are awaiting a decision on our motion for a preliminary injunction. The district court granted a preliminary injunction and the State has appealed the matter to the Seventh Circuit.  The matter is fully briefed and it set for oral argument in February.

    ATTORNEYS:    Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor


BE & SE v. Vigo County School Corp. et al (U.S. Dist. Ct. – So. Dist. Of Ind.) [11/21]

    The plaintiffs are transgender freshman boys who attend Terre Haute North Vigo High School.  They have been diagnosed with gender dysphoria, prescribed hormones, have legally changed their names, and have legally changed the gender markers on their birth certificates.  Nonetheless, the school will not allow them to use male restrooms or locker rooms, and requires that they either use the girls’ restrooms or the only single-occupancy restroom in the school, which is located in the nurse’s office.  Indiana Legal Services is co-counseling the case. The district court granted a preliminary injunction and the matter is being appealed and has been joined with the A.C. case. It is fully briefed and is set for oral argument in February.

ATTORNEYS:     Kenneth J. Falk, Stevie J. Pactor, Megan Stuart and Kathleen Bensberg from Indiana Legal Services


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. Ms. Loveday has been approved for surgery, and the case has been dismissed without prejudice. 

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


Stillwell v. Dwenger et al. (U.S. Dist. Ct. – So. Dist. of Ind.) [6/2/21]

    The plaintiff is a transgender DOC prisoner who has been receiving feminizing hormones (after a lawsuit filed by us).  She has been denied gender affirmation surgery, with the facility indicating that a “committee” has determined to only pursue “less permanent” treatment options.  The lawsuit seeks an injunction to require DOC and its medical provider to follow the WPATH standards of care, which should result in the provision of gender-affirmation surgery.  The case is currently being briefed on summary judgment.

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

 

Miscellaneous

*Clark v. Commissioner, Indiana Dep’t of Corr. (Marion Sup. Ct.) [Filed 12/22]

    To resolve a 2021 lawsuit, the client entered into a settlement agreement with the DOC that states he is to be provided with several volumes of religious texts, with their binding removed.  Nonetheless, the Commissioner has refused to abide by the terms of the settlement agreement and refuses to allow the client to have these religious texts.  This is an action to enforce the settlement agreement.  

    ATTORNEY: Kenneth J. Falk


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 reversed the opinion of the panel.  On remand, the parties filed cross-motions for summary judgment on the remaining equal-protection claim and the district court again ruled in our favor.  The State has again appealed to the Seventh Circuit and argument was conducted on January 6, 2023.  

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

Owen v. Gibson County (U.S. Dist. Ct. – S.D. Ind.) [Filed 9/22]

    When Gibson County Animal Services issues a citation to persons for allegedly violating the County’s animal-control ordinance, it provides them with a ticket that says that they can challenge the citation at a hearing before the “Commissioner’s Court” but does not provide a date or time for that hearing and, in actuality, the “Commissioner’s Court” was discontinued years ago.  There is therefore no opportunity whatsoever to challenge such a citation.  The plaintiffs received a citation that they wish to challenge but have not been able to do so.  The complaint alleges that this violates due process.  We have sought class certification, and the case is pending.

ATTORNEY(S):    Gavin M. Rose


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

Miami “dark cell” cases

These cases involve prisoners who were confined in restrictive housing (segregation) cells at Miami Correctional Facility that did not have working lights and where the windows were covered with sheet metal. Many of the cells had live wires hanging from where the fixtures had been and in some of the cases prisoners were shocked by the wires. We are seeking compensatory and punitive damages.  The first-filed case was Blanchard, followed by those also listed below, all in the Northern District of Indiana. The cases are pending.

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

•    Anderson v. Hyatte  (Filed 7/21)
•    Blanchard v. Hyatte (Filed 3/21)
•    Bennett v. Hyatte (Filed 7/21)
•    Boes v. Hyatte (Filed 9/21)
•    Brisker v. Hyatte (Filed 11/21)
•    Campbell v. Hyatte (Filed 12/21)
•    Carter, T. v. Hyatte (Filed 9/21)
•    Carter, C. v. Hyatte (Filed 11/21)
•    Duckworth v. Hyatte (Filed 10/21)
•    Hackner v. Hyatte (Filed 8/21)
•    Jackson v. Hyatte (Filed 1/22)
•    Lukes v. Hyatte (Filed 8/21)
•    Calvin Lyons v. Hyatte (Filed 8/21)
•    Charles Lyons v. Hyatte (Filed 7/21)
•    Maxwell v. Hyatte (Filed 7/21)
•    Mitchell v. Hyatte (filed 9/22)**
•    Nur v. Hyatte (Filed 10/21)
•    O’Neal v. Hyatte (Filed 8/21)
•    Owen v. Hyatte (Filed 10/21)
•    Parish v. Hyatte (Filed 7/21)
•    Priscal v. Hyatte (Filed 3/22)
•    Pryor v. Hyatte (filed 7/22)**
•    Reed v. Hyatte (Filed 7/21)
•    Rodgers v. Hyatte (Filed 7/21)
•    Rollins v. Hyatte (Filed 10/21)
•    Sapp v. Hyatte (Filed 10/21)
•    Sullivan v. Hyatte (Filed 8/21)
•    Thompson v. Hyatte (Filed 1/22)
•    Wagner v. Hyatte (Filed 7/21)
•    Werden v. Hyatte (Filed 11/21)
•    Winners v. Hyatte (Filed 2/22)
    
ATTORNEY(S):    Kenneth J. Falk, Stevie J. Pactor


Andrew v. Wexford et al. [CANCER] (U.S. Dist. Ct. – No. Dist. Ind.) [4/29/21]

    Mr. Andrew reported, over the course of approximately 9 months, an inability to have bowel movements and intense abdominal pain.  Mr. Andrew was given milk of magnesia and x-rays, which did not alleviate any of his symptoms.  After losing 90 pounds, and reporting extreme pain, he was finally sent to the hospital, where he was diagnosed with colon cancer, an intra-abdominal abscess, anemia, and malnutrition.  Mr. Andrew has been released from prison.  The parties have reached a settlement and the case will be dismissed.  

    ATTORNEYS: Kenneth J. Falk, Stevie J. Pactor


Andrew v. Wexford et al.  [SUPPLIES]  (U.S. Dist. Ct. – No. Dist. Ind.) [4/21/21]

    This is the second case for Mr. Andrew.  Following surgery for his colon cancer, Mr. Andrew was left with a colostomy to catch his bodily waste.  The defendants prevented him from receiving regular supplies to manage his colostomy, leaving him frequently covered in his own waste.  Mr. Andrew has been released from prison.  The parties have reached a settlement and the case will be dismissed.

    ATTORNEYS: Kenneth J. Falk, Stevie J. Pactor


Andrew v. Wexford et al.  [REVERSAL]  (U.S. Dist. Ct. – So. Dist. Ind.) [9/30/21]

    This is the third case for Mr. Andrew.  Although all of his physicians recommended that Mr. Andrew’s ileostomy be reversed shortly after his surgical bowel resection healed, he was repeatedly denied that surgery.  He was not able to receive the reversal until after he was released from DOC custody.  This caused him pain and discomfort, and also required him to remain incarcerated for an extra 6 months, because his county’s community corrections program could not handle the medical maintenance required by the ileostomy.  The parties have reached a settlement and the case will be dismissed.    

    ATTORNEYS: Kenneth J. Falk, Stevie J. Pactor 


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. A class was certified and the parties have submitted an agreement to the Court containing a schedule that ends with the building of a new Jail. The Court concluded that the private settlement agreement was fair, reasonable, and adequate.  The case will remain open for monitoring. 

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


Hall v. GEO Group (U.S. Dist. Ct. – So. Dist of Ind.) [Filed 6/22]

    While at New Castle Correctional Facility Mr. Hall, who suffers from epilepsy, had a seizure. He was taken to the infirmary where two officers pulled down his pants and one of the officers grabbed his penis, apparently to induce him to produce a urine specimen. This lawsuit is for damages concerning these actions. 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 


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 and has opened. However, population issues persist and the Court is keeping the case open.

    ATTORNEY(S):    Kenneth J. Falk


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


*Kadamovas v. Director, Bureau of Prisons et al. (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 1/2023]

    This is a putative class action filed on behalf of the inmates being held in the federal death row at the United States Penitentiary at Terre Haute.  It alleges that the inmates are being held in extreme isolation in a manner that violates the Eighth Amendment.  The case is being co-counseled with lawyers from Faegre Drinker Biddle & Reath LLP.  The plaintiffs are requesting injunctive relief, and the named plaintiff is seeking damages.  

ATTORNEYS: Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor, co-counsel from Faegre Drinker Biddle & Reath


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 we have filed a motion for partial summary judgment that the Court held a hearing on just prior to the holidays.  The Court recently issued summary judgment in favor of the prisoners, finding that condition in the Jail are unconstitutional, and ordering the defendants to submit a plan as to the short and long-term steps they will take to remedy the constitutional deficiencies that the Court found. The Court has scheduled status conferences to continue to monitor the matter.

    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.  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.  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 


Stillwell v. Commissioner, Indiana Dep’t of Correction (Marion Superior Court) [Filed 5/22]

    The Department of Correction has created a new program concerning prisoners’ ability to earn educational credit that appears to afford many prisoners less opportunity to earn credit time than is allowed by Indiana law. The case, which seeks to be certified as a class action, asserts that the DOC is violating both Indiana law and the Constitution. We have sought a preliminary injunction and class certification.  Those motions are fully briefed and awaiting the court’s ruling.  

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

 

Religious Freedoms and Establishment Clause

Anonymous Plaintiffs v. The Individual Members of the Medical Licensing Board of Indiana (Marion Superior Court) (Indiana Court of Appeals)  [filed 9.22]

    This is a challenge to Indiana’s new abortion law, SEA 1(ss), based on a violation of Indiana’s Religious Freedom Restoration Act. The trial court has granted a preliminary injunction to the plaintiffs, which the State has appealed.  The state has requested direct transfer to the Supreme Court, bypassing the Court of Appeals, and that motion has not yet been ruled upon. Therefore, for now, the case is in the Indiana Court of Appeals.

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


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. The plaintiff’s diet has been restored and the case is moving forward on a damages claim under Indiana RFRA. Summary judgment has been denied and the case is set for mediation.

    ATTORNEY(S):    Kenneth J. Falk 

 

Reproductive Rights

All-Options, Inc. v. Attorney General (U.S. Dist. Ct. – So. Dist. of Ind.) (5/21)

    This is a challenge to, among other things, the Indiana law that would have, as of July 1, 2021, required that abortion providers inform women of the fact that “some evidence” exists that there is an “abortion reversal” treatment for women who take the first of the two-pill regimen for a medication abortion and would have informed women how they could avail themselves of that treatment. The district court entered a preliminary injunction on June 30, preventing the law from going into effect. The Court found that the plaintiffs had made the required showing that the disclosure was not truthful and was misleading. The case has been stayed through June 2023. 

    ATTORNEYS:  The Lawyering Project, National ACLU, National Planned Parenthood,     Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor


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. However, following Dobbs the State moved to vacate the preliminary injunction and we have indicated that we have no grounds to oppose the motion. However, we are continuing to pursue our argument that the statute violates the constitutional right to bodily integrity. The State has filed a motion for judgment on the pleadings directed to that claim, which remains pending.   

    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 again sought review in the U.S. Supreme Court. The Supreme Court reversed in light of Dobbs and sent the case back. Following Dobbs the State moved to vacate the preliminary injunction and we have indicated that we have no grounds to oppose the motion. Dobbs doomed the first argument concerning the notice issue, but we are pursuing the other claims.  We have recently sought summary judgment on those claims.

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


Planned Parenthood Great Northwest, etc. v. Members of the Medical Licensing Board of Indiana (Monroe Circuit Court; Indiana Supreme Court) [Filed 8/22)

    This is the challenge to Indiana’s new abortion law (S.E.A.1[ss]) based on a violation of the Indiana Constitution. The trial court granted a preliminary injunction. The State appealed and the Supreme Court has agreed to hear the case. The Supreme Court denied the State’s request to vacate the preliminary injunction. The matter is set for argument in the Indiana Supreme Court on January 19, 2023.

ATTORNEY(S);    Kenneth Falk, Gavin Rose, Stevie Pactor, and attorneys from Wilmer Hale, national Planned Parenthood, and the Lawyering Project

 

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.; Seventh Circuit Court of Appeals) [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. The district court ruled in favor of the Postal Service and we have appealed the matter to the Seventh Circuit. The case is being briefed.

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


Indiana Protection and Advocacy Services Comm’n v. Indiana Family and Social Services Administration (U.S. Dist. Ct. – So. Dist. of Ind.; Seventh Circuit) [Filed 5/22]

    This is a challenge to the failure to move persons found incompetent to stand trial in their criminal cases into placements where they can receive competency restoration services. As a result, they are required to languish in county jails in violation of their due process rights. The district court denied our request for a preliminary injunction and the matter is being appealed.

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


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 seriously 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

Catalano v. Biggs (U.S. Dist. Ct. – No. Dist. Of Ind.) (Filed 12/21)

    This case alleges that a Starke County Sheriff’s Deputy, on two occasions, pulled over the plaintiff and engaged in unlawful seizures and searches of the plaintiff and his vehicle, on one occasion resulting in it being towed.  A settlement has been reached and the case will be dismissed.  

    ATTORNEYS:    Kenneth J. Falk, Stevie J. Pactor


D.C. v.  City of Kendallville (U.S. Dist. Ct. – No. Dist. Of Ind.) (Filed 7/22)

    Police officers were called by a landlord to eject the mother of our client’s girlfriend from her residence because she was not on the lease even though she continued to pay rent after her ex (who signed the lease) had moved out of the apartment.  During the course of this interaction, our client (at the time 15 years old) and his girlfriend arrived outside the apartment from nearby.  When the landlord indicated that she wanted our client and his girlfriend “no trespassed,” our client politely refused to provide his name or identification.  As a result, he was handcuffed and placed in the back of a police vehicle even though there was no reason to believe that he had committed any offense.  He was ultimately released after his father arrived at the scene and provided his name.

    ATTORNEYS:    Gavin M. Rose


*Gregory v. City of Warsaw, et al. (U.S. Dist. Ct. – No. Dist. of Ind.) [Filed 11/22]

    This is a challenge to law enforcement officers’ warrantless entry into and search of the clients’ home and the seizure of one client during that entry.  Law enforcement officers entered the home because they believed the chief of police’s daughter might be inside attending a party.  (She wasn’t.)  The clients have requested declaratory relief and damages.  

    ATTORNEYS:    Stevie J. Pactor, Kenneth J. Falk 


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 and we are monitoring compliance with the settlement.

    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 district court recently granted summary judgment to the defendants on the grounds of qualified immunity.  On appeal, the Seventh Circuit concluded that the case hinged on disputed facts pertaining to whether the Jergers consented to the search and so reversed the entry of summary judgment in favor of the defendants.  The case is back before the district court.  

    ATTORNEY(S):    Gavin M. Rose


Martin v. Biggs (U.S. Dist. Ct. – No. Dist.) (filed 8/22)

    This is another lawsuit filed arising out of a traffic stop initiated by Deputy Biggs of the Stark County Sheriff’s Department. The case alleges that a traffic stop was initiated without probable cause and that the plaintiff’s vehicle was searched without consent.  A settlement has been reached, and the case will be dismissed.  

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


Risner v. Biggs (U.S. Dist. Ct. – No. Dist.) (Filed 8/22)

    This is another lawsuit that we have filed against the same Sheriff’s deputy in Starke County arising out of issues during a traffic stop.  The lawsuit alleges that the deputy stopped our client’s vehicle without justification and, during the course of the interaction, arrested her for resisting arrest without probable cause to believe that she did so and searched her vehicle without any basis.  Ultimately she was allowed to leave after she apologized to the deputy.  The complaint alleges several violations of the Fourth Amendment.

     ATTORNEY(S):    Gavin M. Rose


Tyo v. Biggs (U.S. Dist. Ct. – No. Dist.) (Filed 10/21)

    The three plaintiffs were travelling along a state highway in northern Indiana to a Pokemon GO Festival in Chicago when a traffic stop was initiated by the same sheriff’s deputy named in the Catalano case above.  During the course of the stop, the plaintiffs were ordered out of the car and their vehicle was searched, supposedly because a drug detection dog had “alerted” to the odor of marijuana.  This was false as there was no odor of marijuana in or around the vehicle, and none was discovered.  The complaint alleges that this violated the Fourth Amendment.

ATTORNEY(S):    Gavin M. Rose