Fermaglich v. State of Indiana

Full title: ERIC FERMAGLICH, MARCIA FERMAGLICH, AND SOUTHERN RESPONSE, INC.…

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Sep 29, 2004

IP 01-1859-C T/K (S.D. Ind. Sep. 29, 2004)

Opinion

IP 01-1859-C T/K.

September 29, 2004

ENTRY ON SUMMARY JUDGMENT AND RELATED MOTIONS ¹

1 This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.

JOHN TINDER, District Judge

Plaintiffs brought this action alleging violations of their rights to be free from unreasonable searches and seizures under the Fourth Amendment and due process and equal protection rights under the Fourteenth Amendment and well as violations of rights protected by the Indiana Constitution. This cause comes before the court on summary judgment and related motions filed by the five separate groups of Defendants.

I. THE PARTIES AND PLAINTIFFS' THEORIES

Plaintiffs, Eric Fermaglich, Marcia Fermaglich, and Southern Response, Inc., sued the following Defendants: (1) the State of Indiana (the "State"), Melvin Carraway, the Indiana State Police Department ("ISP"), the Indiana Department of Natural Resources ("DNR"), Steven L. Knapp, Greg Day, Dennis LeBlanc, Ed Lewis, Mike Todd, and Debbie Eaglin (collectively the "State Defendants"); (2) the City of Batesville, the Batesville Police Department, Jeffrey Thielking, David Abel, and Ganathen Browning (collectively the "Batesville Defendants"); (3) the Town of Milan, the Milan Police Department, Jeffrey Davies, Gary Skaggs, and Tom Holt (collectively the "Milan Defendants"); (4) the Ripley County Sheriff's Department, Jim Hyatt, William Davison, Thomas Grills, Lee Mathews, G. Craig, and Raymond Doane (collectively the "Ripley Defendants");² and (5) the City of Greendale and Kendle Davis (collectively the "Greendale Defendants").

2 According to the Ripley Defendants, Plaintiffs incorrectly named "William Davidson" and "Lee Matthews" as defendants. The court employs the spelling of the names used by Defendants. The Clerk shall amend the caption accordingly.

Plaintiffs' Complaint alleges the following: (1) Officer Jeffrey Davies of the Milan Police Department knowingly induced a judge to issue search warrants for Plaintiffs' property in Batesville, Indiana by providing an Affidavit of Probable Cause that was false, factually inaccurate and misleading (Compl. ¶¶ 6-7); (2) Defendants executing that search warrant exceeded the scope of the warrant by seizing bills, receipts, "run sheets," motor vehicles and medical service equipment ( id. ¶¶ 8, 10); (3) Defendants at the Batesville search failed to stop the illegal seizure of items and property not authorized by the warrant ( id. ¶ 12); (4) Defendants refused to return the illegally seized items when requested to do so ( id. ¶ 13); (5) Officer Davies knowingly executed an improper, inadequate and misleading if not false and fraudulent Affidavit for a Search Warrant(s) to search the business of Southern Response in Milan, Indiana and the business office of Marcia Fermaglich in Batesville and, as a result, search warrants were issued by the Ripley Superior Court (Compl. ¶¶ 15-16); (6) Officer Davies coordinated and Defendants conducted a search pursuant to the warrants and exceeded the scope of the warrants by seizing the Fermagliches' personal records, Southern Response's business records, four or five ambulances, a wheelchair van, computers, computer keyboards, computer speakers and "countless other items" belonging to Plaintiffs and outside the scope of the warrants ( id. ¶¶ 18-19); (7) Defendants' conduct was reckless and in disregard for Plaintiffs' rights under the federal and state constitutions ( id. ¶ 20); (7) Kendle Davis of the Greendale Police Department retained possession of a Southern Response ambulance at the request of Officer Davies ( id. ¶ 21); (8) Defendants who seized Plaintiffs' property did so knowingly and intentionally and in violation of Indiana Code § 35-43-4-3. ( Id. ¶ 22.)

The Complaint contains five counts. Count I claims that Defendants violated Plaintiffs' Fourth Amendment rights to be free from unreasonable searches and seizures. Count II asserts due process of law and equal protection violations under the Fourteenth Amendment. The remaining counts allege violations of Plaintiffs' rights under the Indiana Constitution. Plaintiffs' Complaint requests damages, costs and fees.

II. PROCEDURAL HISTORY

On November 2, 2001, Plaintiffs filed their Complaint against Defendants in the Marion County Superior Court. On December 7, 2001, the action was removed.

On March 5, 2002, the court granted the Milan Defendants' Motion to Dismiss, dismissing the Milan Police Department because it was not a suable entity under Indiana law and dismissing as redundant the claims against Gary Skaggs, Jeffrey F. Davies and Tom Holt to the extent they were sued in their official capacities.

On October 2, 2002, the court granted the Motion for Partial Judgment on the Pleadings, dismissing the claims against the Batesville Police Department because it was not a suable entity under Indiana law and dismissing as redundant the official capacity claims against Officers Jeffrey C. Thielking, David Abel and Ganathen Browning. On that same date, the court also granted the Greendale Defendants' Motions for Partial Judgment on the Pleadings, dismissing the claims against the Greendale Police Department as well as the claims against Kendle Davis to the extent he was sued in his official capacity for the same reasons that the other claims were dismissed. Also on October 2, the court granted the motions for partial judgment on the pleadings in favor of the Town of Milan, the Milan Police Department, Skaggs, Davies, Holt, the City of Greendale and Davis and against Plaintiffs as to all claims raised in Counts III, IV and V of Plaintiffs' Complaint.

The Greendale Defendants filed a motion for summary judgment on September 3, 2003. Plaintiffs filed a response, and the Defendants filed a reply.

The Milan Defendants filed a motion for summary judgment on September 4, 2003. Plaintiffs filed a response, and Defendants filed a reply. Defendants also filed a motion to strike sections of Plaintiffs' designation of material facts not in dispute and memorandum. Plaintiffs responded to that motion and the Milan Defendants replied.

The Batesville Defendants filed a motion for summary judgment on November 14, 2003. Plaintiffs filed a response, Defendants filed a reply, and Plaintiffs filed a surreply which was followed by the Batesville Defendants' motion to strike surreply.

The Ripley Defendants filed a summary judgment motion on February 23, 2004. A response and reply were filed as well as a surreply. The Defendants filed a motion to strike the surreply, Plaintiffs responded, and Defendants replied.

The State Defendants moved for summary judgment as well. Plaintiffs have not responded or sought an enlargement of time within which to do so.

III. MOTIONS TO STRIKE AND OBJECTIONS A. Milan Defendants' Motion to Strike Plaintiffs' Facts

The Milan Defendants' Motion to Strike moves the court to strike paragraphs 2, 3, 6, 8, 9, 14, 20, 21, and 22 of Plaintiffs' Statement of Material Facts and paragraphs 1, 2, and 4 of Plaintiffs' Additional Facts. Motions to strike in the summary judgment process are disfavored. S.D. Ind. L.R. 56.1(f). Plaintiffs respond that the motion should be denied because the contested statements are "not immaterial, redundant, or prejudicial to the Defendant's [sic] argument," citing a rule regarding the striking of pleadings. See Fed.R.Civ.P. 12(f). The rule is inapplicable as the Milan Defendants do not seek to strike the pleadings, but Rule 56.1 factual assertions. The motion to strike, however, is unnecessary and does little to advance the resolution of this action.

Rule 56.1 requires that factual assertions in a non-movant's "Statement of Material Facts in Dispute" "be supported by appropriate citations." S.D. Ind. L.R. 56.1(b). The rule provides in relevant part:

For purposes of deciding the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts: are specifically controverted in the opposing party's "Statement of Material Facts in Dispute" by admissible evidence. . . .

S.D. Ind. L.R. 56.1(e). Furthermore, pursuant to the rule, the court "assume[s] for purposes of deciding the motion that any facts asserted by the opposing party are true to the extent they are supported by admissible evidence." Id. Thus, the non-movant's assertion of a fact that is shown not to be supported by the cited discovery response, deposition, affidavit or other cited evidence is ineffective, fails to controvert the facts as claimed by the moving party and supported by admissible evidence, and thus fails to create a genuine issue of material fact precluding summary judgment.

The Milan Defendants are correct in pointing out that Plaintiffs' Statement of Material Facts Not in Dispute Nos. 2, 3, 6, 9, 14 are not supported by the cited evidence, No. 21 is not supported by a specific citation to any evidence, Nos. 8 and 22 state legal conclusions rather than facts, and Plaintiffs have not shown that their Additional Fact No. 2 (that Southern Response records were held by the Milan Police Department) is supported by personal knowledge of the deponent, Eric Fermaglich. Also, the reference to the entire deposition of Marcia Fermaglich in No. 22 as in No. 21 is improper. While Additional Fact No. 4 may not be supported by the evidence cited, other record evidence supports the factual assertion regarding Attorney Jack Shields' attempt to obtain a vehicle from Jeff Davies of the Milan Police Department.

Regarding Statement of Material Fact in Dispute No. 20, this states: "The Milan Police unlawfully took Southern Response scheduling book." Defendants move to strike it because it is a legal conclusion with a self-serving citation to Plaintiffs' deposition. The word "unlawfully" is a legal conclusion. Moreover, the cited reference does not support the assertion. Mr. Fermaglich testified that the "police department" took the scheduling book, but this statement was made in the context of discussing the seizure of Medic 3 by the Greendale Police Department, not the Milan Police Department. (Pls. Ex. Supp. Mem. Law Milan, Ex. 6, E. Fermaglich Dep. at 204.) Thus, Plaintiffs' Designation of Material Fact No. 20 fails to raise a genuine issue as to whether the Milan Police took the scheduling book.

Paragraph 1 of Plaintiffs' Additional Facts states: "Southern Response vehicle was held illegally by Milan Police Department." Defendants argue that this should be stricken as a legal conclusion supported by a citation to a self-serving deposition. The word "illegally" is a legal conclusion; however, there is evidence elsewhere in the record to support the assertion that the Milan Police Department held at least one of Southern Response's vehicles, namely Emergency Response Unit ALS 10.

The Milan Defendants' motion to strike is DENIED. However, the court will enforce Local Rule 56.1 and disregards any unsupported factual assertions in Plaintiffs' Material Facts Not in Dispute and Additional Facts.

B. Batesville Defendants' Motion to Strike Surreply

The Batesville Defendants move to strike Plaintiffs' surreply to their reply brief on the grounds that it is not allowed under the Local Rules. Local Rule 56.1(d) permits a nonmovant to file a surreply only in certain situations:

If, in reply, the moving party relies upon evidence not previously cited or objects to the admissibility of the non-moving party's evidence, the non-moving party may file a surreply brief limited to such new evidence and objections, no later than seven days after service of the reply brief.

S.D. Ind. L.R. 56.1(d). The Batesville Defendants argue that they did not submit any new evidence in their reply brief or object to the admissibility of Plaintiffs' evidence, but acknowledge they objected to evidence not properly designated or submitted.

Plaintiffs' surreply both responds to the Batesville Defendants' objections to statements of fact and reargues issues already raised in Plaintiffs' response brief. The portion of the surreply that responds to objections primarily corrects improperly cited evidence. This may not be, strictly speaking, an objection to the admissibility of the evidence, but the court will consider the clarifications. The Batesville Defendants were permitted to correct the "scrivener's" error in citations in their initial brief; it is only fair to also permit Plaintiffs to correct similar errors. Thus, the Batesville Defendants' motion to strike surreply is DENIED as to the portion of Plaintiffs' surreply which responds to the Batesville Defendants' objections to Plaintiffs' statement of material facts (pages 2-4 of the surreply), but GRANTED as to the portion of the surreply which continues to reargue issues already argued in the response (pages 5-9 of the surreply).

C. Plaintiffs' Objections to Batesville Defendants' Facts

Plaintiffs interpose objections to twenty-three of the twenty-nine Statements of Material Facts Not in Dispute of the Batesville Defendants. It is difficult to discern why they bothered to object to the assertions in Fact Nos. 3, 5 and 11, which assertions are inconsequential (No. 3), redundant (No. 5), and not hearsay (No. 11). These 'objections are OVERRULED. Likewise, the objections to the relevancy of Fact Nos. 22, 23, 24, 25, 26, and 27 are OVERRULED as these assertions are relevant to the issues presented by the summary judgment motions.

Plaintiffs' object to No. 6. They are right that Lt. Thielking does not state in his affidavit a specific date on which he was contacted by Officer Davies. The objection that the entire fact is not supported by the cited evidence is SUSTAINED. However, it is noted that the specific date is provided in the evidentiary submissions of the Milan Defendants. There is no genuine dispute over the specific date.

The objection to Statement of Material Fact No. 10 is OVERRULED in part and SUSTAINED in part. Lt. Thielking can testify as to who arrived at the Batesville site before he did, and Officers Browning and Abel have stated that they arrived before Officers Lewis, Lee and Thielking. What Officer Abel told Lt. Thielking is hearsay; however, this assertion also is supported by Officer Abel's affidavit, so it is a fact upon which the court may rely.

Plaintiffs' objection to Fact No. 13 is OVERRULED as to what Officers Abel and Browning proceeded to do and what Officers Lewis and Mathews began to search. Lt. Thielking's assertion, however, that Officers Abel and Browning reported no other occupants is hearsay, so the objection to this portion of the paragraph is SUSTAINED. Nonetheless, there is admissible evidence that Abel and Browning reported there were no other occupants in the residence/office. (Abel Aff. ¶ 9; Browning Aff. ¶ 9.) Similarly, the statements in Fact No. 14 that Lt. Thielking "was advised by Officer Abel that . . ." and "was further advised" by an unidentified person(s) are hearsay and the objection to this hearsay is SUSTAINED. The facts in No. 14 are otherwise supported by appropriate foundation, and Lt. Thielking's account of what he did is not hearsay.

Plaintiffs object to No. 15 as hearsay. The objection is inapplicable to the first sentence — what Lt. Thielking did — as well as to the statement that Ms. Fermaglich was kept in the holding cell for further action. The statement that Prosecutor Rick Hertel approved her detention, if offered to prove the truth of the matter asserted, would be hearsay; however, if offered to show the effect on the hearer, Lt. Thielking, it is not hearsay. See Fed.R.Evid. 801(c); Smith v. Lamz, 321 F.3d 680, 685 n. 3 (7th Cir. 2003). It seems the statement is offered for the latter purpose, so the objection to No. 15 is OVERRULED.

As to Statement of Fact No. 17, the first sentence is not hearsay or conclusory and, even if self-serving, that alone does not require it be stricken. The second sentence stating that Officer Lewis informed Lt. Thielking of a biohazard is not hearsay as it is offered to show the effect on Thielking and explains his subsequent actions asserted in Statement of Fact No. 18. See Fed.R.Evid. 801(c); Smith, 321 F.3d at 685 n. 3. To the extent Plaintiffs object to the characterization of hypodermic needles and blood-stained cotton swabs and other items as a bio-hazard on the grounds that it is a conclusion, their objection is OVERRULED. It has been common knowledge by at least the late 1990s that used hypodermic needles and blood-stained items present biohazards and are to be treated as such.

The only objection gleaned from the Plaintiffs' response to Fact No. 18 is the last sentence, asserting lack of foundation for the statement that none of the other Batesville Defendants had further involvement with Ms. Fermaglich, the Batesville site, or the evidence obtained there. It is correct that an insufficient foundation has been laid as to these matters. Thus, the objection to No. 18 is SUSTAINED. However, the other individual Batesville Defendants have stated under oath that they had no further contact with Ms. Fermaglich, the Batesville site and the evidence (Abel Aff. ¶¶ 12-13; Browning Aff. ¶¶ 13-14), and these facts are unrefuted.

Regarding Batesville Defendants' Fact No. 21, Plaintiffs object to a lack of personal knowledge by Lt. Thielking regarding the actions of the Ripley County officers and the search at the Milan site. The personal knowledge has not been shown. However, there is no genuine dispute that the Milan and Batesville searches were conducted at approximately the same time. Further, all of the individual Batesville Defendants, Lt. Thielking, Officer Abel and Officer Browning have stated that they had no involvement in the Milan search. (Thielking Aff. 18; Abel Aff. ¶ 13; Browning Aff. ¶ 14.) The objection is SUSTAINED, but the facts asserted in No. 21 are undisputed.

Plaintiffs' objection to No. 29 is OVERRULED: one need not be a lawyer or judge to hold a belief regarding the appropriateness of one's actions or one's intent, and the subjective belief and intent of the Batesville Defendants may be relevant to issues in this case, including damages.

Plaintiffs' objections to Fact Nos. 12, 16, and 19 raise the issue of whether the police videotape of the arrest of Marcia Fermaglich is admissible. The Batesville Defendants argue that the videotape cannot be considered because it is not properly designated or admitted into evidence. In deciding a motion for summary judgment, the court is permitted to consider "any material that would be admissible or usable at trial," including "properly authenticated and admissible documents or exhibits." Smith v. City of Chi., 242 F.3d 737, 741 (7th Cir. 2001) (internal quotations and citation omitted). Defendants' Exhibit 13, the videotape, was authenticated during Ms. Fermaglich's deposition. (Pls.' Surreply, Batesville, M. Fermaglich Dep. at 282-83, Defs.' Ex. 13.) Plaintiffs' objections to Nos. 12, 16 and 19 are OVERRULED because it is not apparent to the court on viewing the videotape that the tape conflicts with the assertions of fact in Nos. 12, 16 or 19. Furthermore, Lt. Thielking's statement to Ms. Fermaglich that he is going to confiscate the vehicles, a statement regarding his future action, is not inconsistent with what he says actually occurred.

Plaintiffs object to Fact Nos. 19, 20, and 28, arguing that the factual assertions conflict with Officer Davies' deposition testimony at pages 123-24.³ The Batesville Defendants responded that this deposition testimony was not in evidence, a problem which Plaintiffs rectified with their surreply. Davies testified that Ed Lewis processed Response Unit ALS 10 at Batesville, Officer Davies picked the vehicle up, and the ISP property record receipt indicates that on November 18 Lewis released to Davies items number 75, 76, and 77. Officer Davies also testified that these items were transferred to him. (Davies Dep. at 124.) It seems that Plaintiffs are confused. Lewis is with the ISP; Davies is with the Milan Police Department. Nothing in the cited pages of Davies' deposition transcript conflicts with the factual statements in Fact Nos. 19, 20 or 28. Also, as stated, Lt. Thielking's statement of what he was going to do in the future does not create a disputed fact. Thus, the objections to Statements of Material Fact Nos. 19 and 20 are OVERRULED. Davies' Probable Cause Affidavit, however, does conflict with the assertion in Fact No. 28 that Lt. Thielking had no contact with Eric Fermaglich. Plaintiffs have not pointed to any evidence to refute the assertion that the Batesville Defendants had no contact with Eric Fermaglich. The court notes this disputed fact as to Lt. Thielking. The objection to No. 28 is SUSTAINED as to Thielking but OVERRULED as to the other Batesville Defendants, Abel and Browning.

3 Fact No. 19 states: "None of the property/evidence seized from the residence/business was ever taken by, or under the control of the Batesville Defendants (with the exception of Emergency Response Unit ALS 10, which simply was secured at the Batesville Police Department for further handling by Milan Deputy Marshall [sic], Jeffrey Davies)." Fact No. 20 states: "The only other involvement Lieutenant Thielking had in the Fermaglich matter was to interview, (at Milan Deputy Marshal, Jeffrey Davies' request), two possible witnesses, Bernard Hull and Lucy Murphy." Fact No. 28 states: "Lieutenant Thielking had no contact with Mr. Fermaglich. Neither did any of the other Batesville Defendants."

D. Batesville Defendants' Objections to Plaintiffs' Facts

Batesville Defendants object to Plaintiffs' Material Statements of Fact Nos. 1, 2, 3, 4, 5, 6, 7 and 8 on relevance grounds. The objections to 2, 3 and 4 are SUSTAINED as the facts are irrelevant, but the objections to 1, 5, 6, 7 and 8 are OVERRULED as the facts appear relevant.

Defendants also object to Plaintiffs' Facts Nos. 13, 14, 15, 16 and 17. No. 13 states: "Lt Jeff Thielking, [sic] made the decision to seize Southern Response's paramedic vehicle on November 6, 1999." Defendants argue that the tape of the search is not in evidence, but as discussed above, it appears that the tape was filed with Plaintiffs' Response. Defendants' objection to No. 13 is OVERRULED. Otherwise, the Batesville Defendants did not raise an objection to the admissibility of the video tape. Fact No. 14 states: "Lt. Thielking seized the para-medic vehicle from a contract provider without following established procedure in the State of Indiana [I.C. § 34-24-1-1-(b)]." The Defendants are right that this assertion is a legal conclusion; the objection is SUSTAINED. The objection to No. 15 is OVERRULED as the errors in citation and submission of evidence have been corrected by Plaintiffs.

The Batesville Defendants objected to Plaintiffs' Fact No. 16 ("Lt. Thielking, per his instructions from the briefing, ordered Officer Browning to drive the para-medic vehicle to the Batesville Police Station") on the ground that the cited evidence did not support the fact. Plaintiffs responded that the citation was a typographical error and the citation should be to Thielking's Affidavit, paragraphs 4 and 13, which when read in conjunction support the statement of fact. These paragraphs do not support the fact. Thus, the objection to No. 16 is SUSTAINED. The objection to Fact No. 17 ("Lt. Thielking did not have probable cause to seize the Plaintiff's vehicle; the warrant only authorized the search of the vehicle.") is SUSTAINED as this assertion is really a legal conclusion rather than a "fact."

E. Ripley Defendants' Motion to Strike Surreply

The Ripley Defendants move to strike Plaintiffs' surreply on the ground that it is not permitted by Local Rule 56.1(d). These Defendants' reply brief did not include any evidence not previously cited and, with one exception, discussed immediately below, objects only to the Plaintiffs' interpretation of evidence. Plaintiffs' surreply continues to argue the interpretation of evidence and reargues issues already argued in Plaintiffs' response brief. Likewise, Plaintiffs' response to these Defendants' motion to strike inappropriately continues to reargue issues and urges that issues of material fact exists which require a trial. As such, Plaintiffs have now had three chances to make their legal arguments as to the merits of their claims, which should have been confined to one response brief. The Ripley Defendants' Motion to Strike Plaintiffs' Surreply is GRANTED. The court also STRIKES Plaintiffs' Response to the Ripley Defendants' motion to strike. Plaintiffs should not file any more surreply briefs that merely reargue legal issues as they will not be considered by the court.

The sole exception is the objection to Plaintiffs' response to Defendants' Statements of Fact Not in Dispute No. 6 in which Plaintiffs assert that the factual assertion contradicts Exhibit 13 of Ms. Fermaglich's deposition testimony and further state: "It is unclear but believed that Lt. Mathews of Ripley County Sheriff's Department tells Lt. Thielking of Batesville Police Department that they, the evidence team, found drugs in Marcia Fermgalich's house, and in this also ten medic units, and Lt. Thielking should ask Rick Hertel, Ripley County Prosecutor, what to do." (Pls.' Resp. Defs.' Statement Facts Not Dispute No. 6.) Defendants contend that this assertion does not constitute evidence. The use of the words "unclear" and "believed" reveal this to be correct. Further, review of Exhibit 13 — the videotape — by itself does not raise a genuine dispute over Lt. Mathews' role in the Batesville search or that of the other Ripley County Defendants who did not participate in that search. Plaintiffs' surreply, however, does not address this objection.

F. Plaintiffs' Objections to Ripley Defendants' Facts

Plaintiffs object to Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 20, 21 and 22 of the Ripley Defendants' Statement of Material Facts Not in Dispute. They object to Fact No. 2 by stating essentially that Sheriff Dramann assigned officers to assist in the execution of the warrants against Plaintiffs in Ripley County and, "as a result . . . violated the Plaintiffs' constitutional rights." Plaintiffs have not offered any particular fact or factual dispute in response to Fact No. 2. Nor do they provide citations to discovery or other admissible evidence. That Sheriff Dramann assigned officers to assist in executing the warrants is undisputed; the dispute concerns the nature of their involvement in providing assistance. The statement that the result was a violation of Plaintiffs' constitutional rights is a legal conclusion. Thus, the objection is OVERRULED.

Plaintiffs' objections to Fact Nos. 3 and 5 merely assert additional facts and are thus OVERRULED. Plaintiffs' objection to Fact No. 4 states a legal conclusion that the Sheriff participated in the violation of Plaintiffs' constitutional rights and therefore is OVERRULED.

Plaintiffs object to Statement of Material Fact No. 6.⁴ They contend that it contradicts "the information of Exhibit 13" of Ms. Fermaglich's deposition — the videotape. They also assert, as mentioned above, that they believe Lt. Mathews told Lt. Thielking what the evidence team found in Ms. Fermaglich's house and that Thielking should ask the prosecutor what to do. The objection to No. 6 is OVERRULED. The only material designated by Plaintiffs to support their objection is the videotape. Even assuming that what Plaintiffs believe to be true is an accurate reflection of what is depicted in the videotape regarding Lt. Thielking, this neither contradicts the factual assertion in No. 6 nor questions the evidentiary sufficiency of the evidence designated in support of that assertion.

4 Fact No. 6 asserts:

While the plaintiffs generally allege that a Ripley County officer (such as Lt. Mathews) may have filled out 'evidence collection paperwork' at some point, the plaintiffs are unable to identify or provide any evidence or information that the Ripley County defendants had any role in deciding what to seize or retain during or following either search, or that Lt. Mathews did anything other than take notes during the Batesville search.

Plaintiffs' objections to Statement of Material Facts Nos. 7, 8, 9, 10, 11, 12 and 22 simply refer to their answer to Material Fact No. 2. These objections are OVERRULED for the same reason the objection to Fact No. 2 was overruled.

Plaintiffs object to Statement of Material Fact No. 15 on the grounds that this statement contradicts the evidence on the police videotape, but do not explain the contradiction.⁵ The objection is OVERRULED. Regardless, it is undisputed that at least Response Unit ALS 10 was removed from the Batesville site.

5 Fact No. 15 states:

After Marcia Fermaglich was arrested, she was handcuffed and detained in Batesville Officer Jeff Thielking's police car. Although Marcia saw several officers enter the house in which she resided, she does not recall which officers entered (she did not, however, see any Ripley County officers until she arrived at the Jail) and she did not see the officers remove anything from the house.

Plaintiffs object to the Ripley Defendants' Fact No. 20 and simply refer to their answers to Fact Nos. 2 and 6.⁶ The objection to No. 20 is OVERRULED as the objection is not directed at the admissibility of the evidentiary support for the facts asserted and the reference to the Plaintiffs' Answers to Material Facts Nos. 2 and 6 does not refute the asserted facts. The same result is obtained regarding Plaintiffs' like objection to Fact No. 21 which is OVERRULED.

6 Fact No. 20 states:

While the plaintiffs allege that the defendants exceeded the scope of the warrants for the Milan and Batesville properties, and while Eric Fermaglich previously stated that one of the most upsetting things regarding the events following his arrest is the fact that certain of his vehicles were confiscated despite the fact they were not described in the warrants, Eric has since acknowledged during his deposition that the Milan and Batesville warrants and probable cause affidavits, which he reviewed during his deposition, do indeed contain references to vehicles.

G. Ripley Defendants' Objections to Plaintiffs' Facts

The Ripley Defendants object to various paragraphs of Plaintiffs' Statement of Material Facts Not in Dispute.⁷ The objections to Plaintiffs' Statement of Material Facts Nos. 2 through 5 and 7 through 11 are SUSTAINED because the asserted facts are not fully supported by the cited evidentiary materials. In other words, the factual assertions of Plaintiffs are not completely accurate.

The Ripley Defendants' objection to Plaintiffs' Fact No. 23 is OVERRULED as the tape arguably depicts what is described in the fact. The objection to Fact No. 24 is SUSTAINED as the cited evidentiary submission — the videotape — at least by itself does not raise a reasonable inference that the Ripley County Sheriff's Department announced to Lt. Thielking that Eric Fermaglich was in their custody. And, it is noted that Plaintiffs' brief acknowledges their uncertainty as to whose voice is heard talking with Lt. Thielking at the time of Marcia's arrest on the videotape. (Pls.' Resp. Ripley County Defs.' Mot. Summ. J. at 9; Pls.' Resp. Defs.' Statement Facts Not in Dispute No. 6 (stating it is unclear but believed Lt. Mathews was speaking to Lt. Thielking).)

IV. FACTS ⁸

8 Plaintiffs attached numerous exhibits in support of their responses to the summary judgment motions. Many of them consisted of several pages of transcript of deposition testimony, and for most of these, Plaintiffs failed to identify the deponent. Plaintiffs did not tab their exhibits. As a result, the court had to page through all of the exhibits to locate a page number corresponding to that which was cited and try to determine the identity of the witness being deposed from the context of the pages of transcript provided. It is well-established that courts are not required to scour voluminous submissions "in search of evidence to defeat a motion for summary judgment[.]" Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Plaintiffs' presentation made quite difficult and time-consuming the court's task of determining whether there exists a genuine issue of material fact for trial.

These facts reflect the rulings made on the various motions to strike and evidentiary objections and are presented in the light most favorable to Plaintiffs. See McGreal v. Ostrov, 368 F.3d 657, 672 (7th Cir. 2004). Assertions of fact not supported by the cited evidence have not been included.

Plaintiffs Eric Fermaglich and Marcia Fermaglich were co-owners and officers of an EMT/ambulance business known as Southern Response, Inc. (Batesville App., Tab A, E. Fermaglich Dep. at 24.) Mr. Fermaglich was the president of Southern Response as well as a certified paramedic. ( Id. at 18, 20.) Marcia Fermaglich, Eric's mother, was Southern Response's secretary/treasurer. ( Id. at 20; Batesville App., Tab B, M. Fermaglich Dep. at 22-23.) Sometimes Ms. Fermaglich drove an ambulance for Southern Response. (Pls.' App., Greendale Mot., Ex. 8, M. Fermaglich Dep. at 24.) She also at times would drive the wheelchair van for people with appointments. ( Id., Ex. 11, at 30.) Ms. Fermaglich leased a home in Batesville, Indiana, where she was residing and conducting Southern Response business. (Batesville App., Tab B, M. Fermaglich Dep. at 18, 20.) Southern Response also owned a building in Milan, Indiana. ( Id. at 25.)

A. November 2, 1999 Search and Seizure

On October 8, 1999, Mr. Fermaglich voluntarily relinquished Southern Response's paramedic certification. (Batesville App., Tab A, E. Fermaglich Dep. at 194.) On October 28, 1999, he was arrested for public intoxication at the Eastern Indiana Treatment Center (the "Center") by Officer Brian Taylor of the Greendale Police Department. (Greendale App., Ex. 1, Davis Aff. ¶ 1.)

On November 1, 1999, at approximately 11:45 p.m., Officer Kendle Davis of the Greendale Police Department observed a blue Geo Prism with a green EMT light on top of it parked in the parking lot of the Center. (Greendale App., Ex. 1, Davis Aff. ¶ 2.) He noticed that the vehicle had been parked at the Center for three to four days and thought that unusual. ( Id. ¶ 3.) The vehicle bore an Indiana license plate number 69B7553 and a VIN number of 1Y1SK546XNZ055245. ( Id. ¶ 4.) The vehicle was registered to Kim Prather, whom Officer Davis knew worked for Mr. Fermaglich and Southern Response. ( Id. ¶ 5.) Davis checked the vehicle to see if it was secure and locked. ( Id. ¶ 6.) He observed in the vehicle boxes of prescription drugs marked "Zoloft" and "Covera HS Verapamil" as well as a rubber tourniquet on the front passenger side floorboard and a white pill in the center console between the two front seats. ( Id. ¶ 7.) He contacted the dispatcher, Officer Peggy Glib, and requested that she contact the Dearborn County Prosecutor, Sally Blankenship, to obtain advice on whether a search warrant for the vehicle was needed that night, or whether the vehicle could be secured with evidence tape and impounded, with a search warrant obtained the next day. ( Id. ¶ 8.) Ms. Blankenship told Officer Davis to secure the vehicle and obtain a search warrant the next day. ( Id.)

At 4:50 p.m. on November 2, 1999, a warrant was issued and, at 9:18 p.m. the warrant was served on the vehicle. ( Id. ¶ 9.) Upon service of the warrant, Officer Davis and Officer Glib discovered Epinephrine vials, boxes containing vials labeled "Norvasc," boxes of "Zoloft," boxes of "Covera HS Verapamil," a written prescription for "Biaxin 500 mg.," two white tablets labeled "Watson 503," a carrier box labeled to hold samples of "Covera HS Verapamil," a plastic divider case containing multiple vials of syringes, plastic tube syringes, plastic tourniquets, a rubber tourniquet, and used "Benadryl" vials with used needles. ( Id. ¶ 10.)

B. Events Leading Up to November 6 and 7 Seizures

The morning of November 3, 1999, Officer Davis contacted Deputy Marshal Jeffrey Davies of the Milan Police Department and informed him of the execution of the search warrant on the Geo Prism and the drugs that were found. (Milan's App., Ex. 1, Probable Cause Aff. at 2.) Officer Davis told Officer Davies that he was going to interview Mr. Fermaglich that morning. ( Id. at 2-3.) Officer Davies traveled to the Greendale Police Department to view the evidence collected by Davis. ( Id. at 3.)

In the interview with Officer Davis, Mr. Fermaglich stated that the items in the vehicle either were prescribed to him (Vicodin, Verapamil, and Zoloft) by a doctor or that he was transporting them from one paramedic service to another. (Greendale App., Ex. 1, Davis Aff. ¶ 11.) Several of the drugs discovered were expired. ( Id. ¶ 12.) Mr. Fermaglich told Officer Davis that such expired drugs were used to train paramedics. ( Id. ¶ 13.) Officer Davis communicated with Sherri Crane of the Indiana State Emergency Medical Services ("EMS") Commission regarding the drugs and paraphernalia discovered in the Geo Prism. ( Id. ¶ 14.) Ms. Crane informed him that Mr. Fermaglich's paramedic certification had been surrendered to the EMS Commission and there was no reason he should have those narcotics or other paraphernalia at that particular time as he should have surrendered them at the time of surrendering his paramedic's license. ( Id. ¶ 15.) Officer Davis also spoke with Dr. Arnett, the sponsoring doctor for Southern Response, who advised that the Decatur County Hospital's protocol was for Mr. Fermaglich to return any medications in his possession once his paramedic certification was no longer valid. ( Id. ¶ 16.) Both Dr. Arnett and Ms. Crane advised Officer Davis that expired medications would not be used for training paramedics and they should have been returned to a hospital for disposal. ( Id. ¶ 17.) Mr. Fermaglich told Davis that he had used drugs before and had drug problems in the past. ( Id. ¶ 18.)

Officer Davis told Officer Davies that during Mirandized questioning of Mr. Fermaglich, Eric admitted to keeping expired and unused drugs at his offices, admitted to transporting drugs in his Range Rover from the office in Milan to the office in Batesville, admitted to not disposing of old and out-of-date drugs, stated that drugs are kept at both the Milan and Batesville offices, that drugs were kept in response vehicles, and that the paramedic business was out of business at that time. (Milan's App., Ex. 1, Probable Cause Aff. at 2.)

The morning of November 3, 1999, Officer Davies contacted Judy Schebler of Ripley County Communications. (Milan's App., Ex. 1, Probable Cause Aff. at 3.) Ms. Schebler advised that Rebecca Blagrave, the EMS District Manager for the Ripley County area, told her on October 8, 1999, that Southern Response was no longer a certified paramedic provider through the EMS Commission. ( Id.) Officer Davies telephoned Ms. Blagrave, who confirmed that Mr. Fermaglich had contacted her around October 8, and voluntarily relinquished his provider certification. ( Id.) Ms. Blagrave told Officer Davies that Southern Response was no longer a paramedic provider. ( Id.) She also advised that Mr. Fermaglich should not have any drugs not prescribed to him by a doctor. ( Id.) Ms. Blagrave told Officer Davies that once Mr. Fermaglich had surrendered the paramedic's certification, he had no greater expectation of carrying or keeping drugs on Southern Response's vehicles or his personal vehicle than would the average person. ( Id.) She said that Mr. Fermaglich should have disposed of any expired medications as soon as they expired and they should not have been kept for any reason. ( Id. at 3-4.) She told the officer that extensive records should have been kept on the drugs and their use would be documented on company records. ( Id. at 4.)

On November 4, 1999, Officer Davies spoke with Sherri Crane, the director of the EMS Commission, who confirmed what Ms. Blagrave had said and also indicated that Mr. Fermaglich was being investigated by the Commission. ( Id.) Ms. Blagrave testified that after Mr. Fermaglich relinquished Southern Response's paramedic certificate, it remained certified to provide basic life support services and ambulance services. (Milan App., Ex. 3, Ind. Ct. App. Op. at 20.)

Also on November 4, Officer Davies spoke with Ms. Fermaglich. (Milan App., Ex. 1, Probable Cause Aff. at 4.) She told Officer Davies that one of the paramedic vehicles (a Ford Explorer) was located in the basement garage of her home/office in Batesville, Indiana. ( Id.) She also said that some paramedic supplies were stored in her home/office in Batesville. ( Id.) Officer Davies spoke with Lt. Jeffrey Thielking of the Batesville Police Department that same day. ( Id.) Lt. Thielking told Davies that he had been in contact with Mr. Fermaglich the previous Friday and that Mr. Fermaglich exhibited "track marks" on his arms, a trait which Officer Davies knew from his experience and training was indicative of intravenous drug use through injecting drugs into the user's body. ( Id.) Officer Davies filed an Affidavit of Probable Cause in order to obtain a search warrant for Southern Response's, Mr. Fermaglich's, and Ms. Fermaglich's residences/offices in Batesville and Milan, Indiana.

On November 5, 1999, three search warrants were issued by Judge James B. Morris of the Ripley County Superior Court for the Milan and Batesville buildings. (Milan App., Exs. 4, 5, 6.) The search warrant executed for the Batesville office/residence states:

To the Milan Police Department:

You are hereby authorized and ordered, in the name of the State of Indiana With the necessary and proper assistance to enter into or upon:

The dwelling/office of Eric Fermaglich and Southern Response 75 Township Line Road Batesville, IN.

And there search diligently, including all buildings, structures, vehicles, fenced-in areas, and any other enclosed area and/or closed container anywhere on the premises contained within the curtilage of the described dwelling, for:

Prescription drugs in any form and any and all accompanying paraphernalia. Any and all records pertaining to the purchase of, use, and destruction of drugs used by the company.

You are ordered to seize such evidence/contraband, or any part thereof, found on such search[.]

(Milan App., Ex. 5.) The search warrant for the Milan building was identical, except it permitted the search of "The first floor business Southern Response owner Eric K Fermaglich 406 South Main Street, Milan Indiana 47031." ( Id., Ex. 6.) Similarly, the warrant for the green Range Rover was identical to the other warrants, except it permitted the search of: "Green Range Rover Plate #69B3894 registered to Marcia D. and Eric K. Fermaglich last Known location was The dwelling/office of Eric Fermaglich and Southern Response 75 Township Line Road Batesville, IN." ( Id., Ex. 4.)

Officer Davies contacted Lt. Thielking and requested assistance in serving the search warrant at Ms. Fermaglich's residence/office in Batesville. (Batesville App., Tab C, Thielking Aff. ¶ 3.) Additionally, Sheriff William Dramann of the Ripley County Sheriff's Department received a telephone call from Officer Davies, requesting assistance with respect to the warrants that pertained to Plaintiffs. (Ripley App., Tab A, Dramann Answer No. 2.) Sheriff Dramann assigned several Ripley County officers to assist the Milan and Batesville Police Departments with the searches. ( Id.) Seven Ripley County officers provided assistance to the Milan and Batesville Police Departments on November 6, 1999. ( Id., Dramann Answer Nos. 2, 3.) Lt. Lee Mathews assisted at Batesville; the remainder of the Ripley County officers, Sheriff Dramann, Bill Davison, Thomas Grills, Guy Craig, James Hyatt, Ray Doane, assisted at Milan. ( Id., Tab H, Mathews Answers Pls.' First Set Interrogs. Nos. 2, 3; Milan App., Ex. 7, Davies Answers No. 3(c).)

C. November 6 and 7 Seizures

Officer Davies organized the searches of Plaintiffs' premises on November 6 and 7, 1999. (Milan App., Ex. 7, Davies Answers Pls.' Interrogs. No. 6.) Chief Tom Holt and Officer Gary Skaggs participated in the execution of the search warrants. ( Id., Davies Answers No. 16.) Officer Davies had no knowledge upon which to file a delivery of Darvocet charge against Mr. Fermaglich on or before November 6, 1999. (Pls.' App., Milan Mot., Ex. 4, Davies Dep. at 53.)

On November 6 at 9:00 a.m., a pre-search briefing session was held at the Batesville Police Department. Those present were Lt. Mathews, Officer Davison, Officer Craig, and Chief Grills of the Ripley County Sheriff's Department, ISP Evidence Technician Ed Lewis, and Batesville officers Lt. Thielking, Officer Browning, and Officer Abel. (Batesville App., Tab C, Thielking Aff. ¶ 4.) Sheriff Dramann did not attend the briefing session. (Ripley App., Tab A, Dramann's Answers Pls.' Interrogs. Nos. 2.)

Officer Davies conducted the briefing and informed the law enforcement officials present that he had warrants for two locations — Milan and Batesville. Lt. Thielking, Officer Browning, Officer Abel, Officer Lewis and Lt. Mathews were given duties at Batesville. (Batesville App., Tab C, Thielking Aff. ¶ 5.) The other law enforcement officials were assigned duties at Milan.

Officers Davison, Thielking, Browning, Abel, Mathews, Grills, Craig, Lewis and Davies participated in a discussion relating to the warrant pertaining to the Milan residence. (Ripley App., Tab D, Davison Answer No. 10; Tab F, Craig Answer No. 10.) Officer Craig recalls that a portion of the warrant relating to the Milan building was read to him by Officer Davies. ( Id., Craig Answer No. 9.) His interrogatory answer does not indicate what portion of the warrant was read to him, however, and no specific information about what was said during the officers' discussion relating to the warrant is provided to the court. Officers Davison, Hyatt, Grills and Doane do not recall being read the warrant which pertained to the Milan property. (Hyatt Answer Interrogs. No. 9; Grills Answer Interrogs. No. 9; Doane Answer Interrogs. No. 9.)

Officer Davis states that he did not participate in any search of Plaintiffs' premises on November 5, 1999. (Greendale Def.'s Desig. Evid., Davis Aff. ¶ 35.)⁹

9 Presumably, he intended to refer to the November 6 and 7 searches as there is no indication that any search of Plaintiffs' premises was conducted on November 5.

1. Batesville

A search of Plaintiffs' Batesville residence/office was conducted on November 6, 1999, at approximately the same time as the Milan search. (Milan App., Ex. 8, M. Fermaglich Dep. at 39-45.) Officers Browning and Abel arrived at the Batesville residence/office prior to Officer Lewis, Lt. Mathews, and Lt. Thielking. (Batesville App., Tab C, Thielking Aff. ¶ 7; Tab P, Abel Aff. ¶ 6; Tab Q, Browning Aff. ¶ 6.) Officer Abel informed Lt. Thielking that a female was in the process of leaving the residence/office. Lt. Thielking instructed Abel to secure the site until he arrived. ( Id.) When Lt. Mathews and Lt. Thielking arrived, they observed that Officers Browning and Abel had detained Ms. Fermaglich in her Range Rover, a vehicle for which they had a search warrant. (Batesville App., Tab C, Thielking Aff. ¶ 8.) Upon arriving, Lt. Thielking read Ms. Fermaglich the search warrants, asked her to exit the vehicle and then read her the Miranda warning. (Ripley App., Tab H, Mathews Answers Interrog. No. 8.) Ms. Fermaglich was placed under arrest and handcuffed. (Pls.' App., Greendale Mot., M. Fermaglich Dep. at 40, 43.) Lt. Thielking placed her in his police vehicle. (Batesville App., Tab C, Thielking Aff. ¶ 9.) He informed her that he was going to confiscate the vehicles. (Pls.' App., Batesville Mot., Police Video.)

Officers Abel and Browning proceeded to search the residence/office for additional occupants. After they reported that there none, Officer Lewis and Lt. Mathews began their search, first of the Range Rover, then of the house. (Batesville App., Tab C, Thielking Aff. ¶ 10.) Officer Lewis took photographs and collected evidence. (State App., Tab 10, Lewis Resp. Interrogs. No. 2.) Lt. Mathews assisted Officer Lewis by taking notes under his direction during the search. (Batesville App., Tab H, Mathews Answers Pls.' First Set Interrogs. Nos. 2, 3.) Meanwhile, Lt. Thielking remained with Ms. Fermaglich at his police vehicle. It was announced over the radio to Thielking that Mr. Fermaglich was in custody. (Pls.' App., Ripley Mot., Police Video, M. Fermaglich Dep., Ex. 13.) Officers Lewis, Mathews, Browning and Abel searched the house and observed illegal drugs, along with used hypodermic needles, blood-stained cotton swabs and other blood-stained items. (Abel Aff. ¶ 10; Browning Aff. ¶ 10.) Lt. Thielking was told by an unknown deputy to confer with Rick Hertel, the Ripley County Prosecutor, about arresting Ms. Fermaglich. (Pls.' App. Ripley, M. Fermgalich Dep., Police Video, Ex. 13.) Lt. Thielking took Ms. Fermaglich to the Batesville Police Department, then contacted Prosecutor Hertel and briefed him on the search. The prosecutor approved the detention of Ms. Fermaglich, who was kept in the Batesville Police Department's holding cell for further action by Officer Davies. (Batesville App., Tab C, Thielking Aff. ¶ 12.)

Lt. Thielking returned to the search in Batesville where he was advised by Officer Lewis that Emergency Response Unit ALS 10 was in the basement garage and was full of equipment. After Officer Lewis took photographs of this unit, Officer Browning drove it to the Batesville Police Department where Lt. Thielking sealed and secured it for further handling by Officer Davies. ( Id. ¶¶ 13, 16.)

Then Lt. Thielking again returned to the Batesville search. Upon being informed by Officer Lewis of a biohazard in an upstairs bedroom, he looked into the room where he observed a pile of used hypodermic needles on the floor accompanied by blood-stained cotton swabs and numerous other blood-stained items. ( Id. ¶ 14.) Lt. Thielking contacted the homeowner, the local hospital and Jerry Fry of Emergency Management to determine who was responsible for clean up of the biohazard. ( Id. ¶ 15.)

Officer Lewis of ISP held Emergency Response Unit ALS 10 until November 12, 1999; then he processed and logged the evidence. (Pls.' Surreply, Batesville Mot., Davies Dep. at 123-24.) On November 18, Officer Lewis released and transferred this vehicle and a few other pieces of evidence to Officer Davies of the Milan Police Department. ( Id.)

2. Milan

The search of Plaintiffs' Milan residence/business was conducted on November 6, 1999 at approximately 10:45 a.m. and on November 7, 1999 at approximately 9:00 a.m. (Milan App., Ex. 7, Davies Answers Interrogs. Nos. 2, 3, 4.) None of the Batesville Defendants was involved in the Milan search. (Batesville App., Tab D, Probable Cause Hr'g at 3.)

Officer Davies led the entry into the Milan building. (Milan App., Ex. 7, Davies Answers Interrogs. No. 2.) Upon entering, the officers determined that Mr. Fermaglich was in the bathroom taking a shower and knocked on the bathroom door. ( Id., Ex. 9, E. Fermaglich Dep. at 78-79.) The officers forced open the door, removed Mr. Fermaglich from the room and tossed him on the bed. ( Id. at 79.) He was taken from the building to a police car and transported to the Ripley County Jail. ( Id. at 79, 93.) Mr. Fermaglich testified that before being transported, he saw a couple of people in brown uniforms walking around inside the garage area, saw officers in brown uniforms walk to his office and state that the door was locked, and heard one of them reply they would have to get that open. ( Id. at 91-93.) He also saw Officer Davies giving instructions. ( Id. at 93.)

At approximately 9:30 p.m. on November 6, Sheriff Dramann relieved Officer Baker at the Milan residence and remained in position until approximately 2:00 a.m. when he was relieved by Officer Doane. (Ripley App., Tab A, Dramann Answers Nos. 2, 3.) Officer Hyatt was in charge of securing the door to the southeast side of the Milan building and was instructed to keep unauthorized individuals from entering the building. ( Id., Tab C, Hyatt Answers Nos. 2, 3.) Officer Grills assisted in Mr. Fermaglich's arrest. He also provided security for the east side of the Milan building. ( Id., Tab E, Grills Answers Nos. 2, 3.) Officer Guy Craig was assigned to watch the front of the Milan building, specifically the overhead doors, in order to assure that no one would leave through them. ( Id., Tab F, Craig Answer No. 2.) Officer Doane guarded the north side of the Milan building. ( Id., Tab G, Doane Answer No. 2.) Officer Davison delivered Sharps containers to secure biohazard evidence to another officer who was collecting evidence at the Milan search. ( Id., Tab D, Davison Answers Interrogs. No. 7.) He also guarded the north side of the Milan building. ( Id. No. 2.)

Officer Mike Todd was employed as a conservation officer for the DNR, an agency of the State. (State App., Tab 4, Todd Aff. ¶ 3.) He accompanied Officer Davison to the Milan search site. ( Id. ¶ 6.) The two officers were about to go to breakfast together, when Davison was dispatched by the Ripley County Sheriff's Department to deliver items to the search site. ( Id. ¶ 7.) Officer Todd had no role in the search of the property and did not participate in any seizure. ( Id. ¶ 8.) In fact, Mr. Fermaglich's only recollection involving DNR is the presence of a police car with a green stripe down the side. (State App., Tab 2, E. Fermaglich Dep. at 261.)

Dennis LeBlanc was employed as a sergeant and public information officer for the ISP. ( Id., Tab 5, LeBlanc Aff. ¶ 3.) Sgt. LeBlanc was dispatched to the Milan site in his capacity as a public information officer so he could speak to the media present at the location. ( Id. ¶¶ 6, 7.) He had no role in the search of the property or any seizure; his sole duty was to speak to the media. ( Id. ¶¶ 8, 9.)

Debbie Eaglin is employed as an evidence clerk with the ISP. (State App., Tab 6, Eaglin Aff. ¶ 3.) She was dispatched to the Milan search site to act as an evidence clerk. ( Id. ¶ 6.) Her sole duty was to log and otherwise make record of sealed evidence as it was seized and gathered by other law enforcement officers. ( Id. ¶ 8.) She did not gather, touch, or select items to be seized pursuant to the warrant. ( Id. ¶ 9.) Steve Knapp of the ISP documented the scene and collected evidence. (State App., Tab 8, Knapp Resp. Interrogs. No. 2.) Officer Davies was provided with a copy of the seized items by Knapp. ( Id. at No. 7.) Officer Greg Day searched the Southern Response building. (State App., Tab 9, Day Resp. Interrogs. No. 3.) Day states:

My role was to assist with the search of a large room/garage where vehicles, storage cabinets and shelves were located. I searched the storage cabinets for medication and medical supplies, with particular attention to out-dated medications. I also helped Steve Knapp put seized medications and medical supplies into boxes and/or evidence bags. I then helped Steve Knapp and Debbie Eaglin tape the boxes or bags shut (to seal them). I then helped to carry the sealed evidence outside the building to a U-Haul trailer.

( Id. Resp. Interrogs. No. 7.) Mr. Fermaglich testified that he has no evidence that the ISP or DNR Defendants knew anything when they conducted the search and seizure of the Plaintiffs' property other than what was in the warrants and affidavits for the search and seizure. ( Id., Tab 3, E. Fermaglich Dep. at 336.)

Officer Davies and other officers searched the building and confiscated numerous items. Officer Davies seized all the vehicles at the Milan site. (Milan App., Ex. 21, Tr. Probable Cause Hr'g, Davies Test. at 6; Ex. 2, Davies Dep. at 85-86.) It is not entirely clear from the record whether four or five vehicles were seized from the Milan residence on November 6 and 7. Officer Davies testified that the seized vehicles included a "medical taxi" or "LS1012" and four ambulances "medic 1, 2, 4, and 5." (Pls.' Surreply, Batesville Mot., Davies Dep. at 120-21.) It appears that "LS1012" is Response Unit ALS 10, which was seized from the Batesville residence. Officer Davies had Response Unit ALS 10 transported to Edwards Towing so the vehicles could all be kept together. ( Id. at 121.) The vehicles were released on December 6, 1999. ( Id. at 121-22.) Officer Davies testified that the ambulances were returned when "the proper photographs had been taken, and that initial part of the investigation was" completed. (Milan App., Ex. 2, Davies Dep. at 85-86.)

The police seized four computers and equipment from Plaintiffs. One computer was seized from the Batesville residence; the other three were taken from the Milan office. One of the computers had not been returned at the time of Mr. Fermaglich's deposition. (Pls.' App., Milan Mot., Ex. 11, E. Fermaglich Dep. at 276.)

The police also seized Southern Response's billing records, including run sheets. ( Id., Ex. 12, E. Fermaglich Dep. at 229-30.) Because the run sheets were not returned for a long time, Southern Response could not collect money from the insurance providers of Medicare and Medicaid recipients for whom services were provided. Southern Response's claims were rejected because they were submitted after the proscribed time period. ( Id., Ex. 8, E. Fermaglich Dep. at 230-35.) Plaintiffs asked the Milan police for the run sheets many times and incurred legal expenses to obtain their release of the records. ( Id. at 235.)

D. November 10 Seizure

Plaintiffs allege that another ambulance, Medic 3, and a scheduling book, were seized by the Greendale Police Department. (Pls.' App., Milan Mot., Ex. 6, E. Fermaglich Dep. at 204.) On November 10, 1999, while driving to an interview with Kim Prather and her son, Adam, Officer Davis noticed an ambulance belonging to Southern Response parked at Rick's Automotive Shop in Aurora, Indiana. (Greendale App., Ex. 1, Davis Aff. ¶ 19.) During the interview, both Prathers informed Officer Davis of Mr. Fermaglich's extensive drug use, drug theft, and drug dealing. ( Id. ¶ 20.) Ms. Prather also stated that as of October 8, 1999, Southern Response had shut down and Mr. Fermaglich had lost his paramedic's license. ( Id. ¶ 21.) Ms. Prather advised Officer Davis that Mr. Fermaglich encouraged her to steal blank prescription forms from the hospital emergency room. ( Id. ¶ 22.) Following the interview, Officer Davis stopped at Rick's, inspected the ambulance, and observed bags and an orange case inside the ambulance which he thought might contain drugs or drug paraphernalia. ( Id. ¶ 23.)

Officer Davis went to the prosecutor and requested a search warrant for the ambulance at Rick's. ( Id. ¶ 24.) The Dearborn County Court issued a search warrant to search for evidence related to the possession or use of prescription drugs, including prescription drug paraphernalia such as needles and tourniquets. ( Id. ¶ 25.) The vehicle, a 1987 Ford van bearing Indiana license plate number 488421A and VIN number 1FDJS3410HHA45192, contained an orange box holding needles and syringes, bags and bottles of "0.9% sodium chloride," three bottles of sterile water, one blue medical bag containing a bottle of sterile water, a rubber tourniquet, and a Sharps container. ( Id. ¶ 26.) The bottles of sodium chloride 0.9% and the sterile water displayed labels stating it was illegal to dispense these products without the prescription of a doctor. ( Id.) In a telephone call to Sherri Crane of the EMS Commission, Officer Davis was informed that Mr. Fermaglich should have removed the sodium chloride and sterile water from the unit and that sodium chloride should not have been in place on the unit because, as a basic EMT unit, it could not administer injectable items, or start intravenous drips. ( Id. ¶ 27.) The ambulance had been abandoned on the premises of Rick's for approximately two weeks. ( Id. ¶ 28.) The vehicle was impounded by the Greendale Police Department at the request of the owner of Rick's and towed to Hardin Town Salvage. ( Id. ¶ 29.) Southern Response's scheduling book was also confiscated by the Greendale Police. (Pls.' App. Greendale Mot., Ex. 2, E. Fermaglich Dep. at 204.)

Mr. Fermaglich's attorney, Jack Shields, attempted to get Medic 3 back from Officer Davies. (Pls.' App., Milan, Lewis Dep. at 14-15.) Approximately four weeks after impoundment, Shields called Officer Davis and requested that the ambulance be released. (Greendale Defs.' Desig. Evid., Davis Aff. ¶ 32.) Officer Davis replied that Mr. Fermaglich must pay a $400 storage fee before the ambulance could be released so that Hardin Town Salvage would be properly reimbursed. ( Id. ¶ 33.) Shields accused the Greendale Police of holding the ambulance for the Milan Police and Officer Davies. ( Id. ¶ 34.) According to Officer Davis, Mr. Fermaglich's ambulance was retained only because he made no effort to reclaim it until his attorney contacted him approximately four weeks following impoundment. ( Id. ¶ 36.) Although not cited in the parties' statements of material facts, the Greendale Defendants appear to admit that the vehicle was sold by Hardin Town Salvage. (Greendale Reply at 6.)

E. State Court Proceedings

Mr. Fermaglich pleaded guilty to two counts of Possession of a Schedule IV Controlled Substance, a Class D felony, on May 16, 2000. (Milan App., Ex. 12.) On June 19, 2000, the Ripley County Circuit Court, Judge Carl H. Taul, accepted Mr. Fermaglich's plea and pronounced his Judgment of Conviction and sentence. ( Id., Ex. 13.) During Eric's prosecution, he attempted to quash the warrants for the search of his premises and suppress the evidence seized during the searches. He argued that the search was conducted without a valid search warrant, without a valid arrest warrant, was not incident to a lawful arrest, and was not based on probable cause. ( Id., Ex. 15.) The court, after hearing evidence and the arguments of the prosecutor and counsel for Mr. Fermaglich, denied the motion to quash and suppress. The court concluded that there was a substantial basis for determining there was probable cause to issue the search warrants. ( Id., Exs. 16, 18.)

Ms. Fermaglich was found guilty in the Ripley Superior Court of Possession of a Controlled Substance, a Class D felony, following a bench trial on September 12, 2000 and was sentenced. (Milan App., Exs. 38, 39.) She had moved to quash the warrant for her arrest and vacate the finding of probable cause to arrest her. ( Id., Ex. 21.) Her motion was denied. ( Id., Ex. 23.) Ms. Fermaglich also moved to quash the search warrants and to suppress all evidence seized pursuant to the warrants. ( Id., Ex. 22.) She argued, inter alia, that the affidavit for search warrants contained false and misleading information which information Officer Davies knew to be false or would have known to be false but for a reckless disregard for the truth. ( Id.) The Ripley Superior Court held a hearing on the motion to suppress evidence and, "after hearing for all parties" denied the motion. ( Id., Ex. 24.) Attorney Shields represented Ms. Fermaglich, but there is no indication that the court heard evidence at this hearing.

Ms. Fermaglich also challenged the validity of the search warrants on appeal. The Indiana Court of Appeals affirmed the trial court, concluding that Ms. Fermaglich's arguments were insufficient to show that the statements in Officer Davies' affidavit were untrue. ( Id., Ex. 3 at 14, 30.) She had argued that had Officer Davies contacted other people, he would have obtained different and more favorable information. The court concluded this argument failed to show even a reckless disregard for the truth. ( Id.)

Ms. Fermaglich filed a petition for immediate return of items seized outside the scope of the search warrant on November 16, 1999, in Ripley Superior Court, and petitioned for a hearing on the matter. ( Id., Exs. 27, 28.) The petition sought the return of the following: five ambulances and one wheelchair van; heart monitors; computers, four computer speakers, monitors, keyboards, and mouse; business files, including corporation files, business employee files, motor vehicle titles, contracts concerning lease/sale of motor vehicles, faxes, correspondence and other written material to company engaged to bill patients and others requiring ambulance service, records required to be kept of ambulance runs, insurance files, papers in connection with the licensing and approval of Southern Response, completed paramedic ambulance check off sheets, information regarding company owned equipment, contracts with others as to motor vehicles, territories, bank records, filing cabinets and drawers; non-prescription items, and all drugs lawfully in the possession of Southern Response and its principals. (Milan App., Ex. 27.) The Superior Court set a hearing on the petition. ( Id., Ex. 40.)

V. SUMMARY JUDGMENT MOTIONS

Defendants move for summary judgment on all claims. What follows in this section of the entry is a summary of the grounds upon which each set of Defendants seeks summary judgment and the standard for summary judgment.

The Greendale Defendants (the City of Greendale and Officer Davis) argue they should be granted summary judgment because: (1) Officer Davis did not participate in any of the challenged searches or seizures; (2) Officer Davis's seizure of the vehicle on November 10 was authorized by law; (3) Davis is entitled to qualified immunity as Plaintiffs cannot show that he violated their constitutional rights; (4) Plaintiffs cannot demonstrate a municipal policy, custom or practice was the moving force behind any constitutional violation; (5) there is no Fourth Amendment violation for the retention of Plaintiffs' ambulances (and there was probable cause to search and impound the ambulance as an abandoned vehicle); (6) Plaintiffs cannot establish a claim of violation of substantive due process rights; (7) Eric and Marcia Fermaglich lack standing to recover damages on behalf of Southern Response; (8) there is no private right of action under the Indiana Constitution; (9) to the extent Plaintiffs have brought state law claims, Defendants are entitled to law enforcement immunity under Indiana Code § 34-13-3-3(7); and (10) Plaintiffs have failed to satisfy Indiana Code § 34-13-3-5(c)'s pleading requirements for personal liability.

The Milan Defendants (the Town of Milan, Officer Davies, Officer Skaggs and Officer Holt) move for summary judgment on the following grounds: (1) there is no Fourth Amendment violation for retention of evidence; (2) Plaintiffs' procedural due process claims fail because they have an adequate state law remedy; (3) Plaintiffs' substantive due process claims fail as they cannot show state law remedies are inadequate or an independent constitutional violation; (4) Plaintiffs' equal protection claims fail as they cannot show that they were treated unequally or that Defendants engaged in activity implicating a fundamental right; (5) Defendants Davies, Skaggs and Holt in their individual capacities are entitled to qualified immunity since Plaintiffs cannot show any violation of their constitutional rights; (6) Plaintiffs cannot show that the Town of Milan has a custom, practice or policy of constitutional deprivations; (7) Eric and Marcia Fermaglich lack standing to recover damages on behalf of Southern Response; (8) all records and items seized by Defendants were within the scope of the search warrant and the vehicles were properly seized pursuant to Indiana Code §§ 34-24-1-1 and 34-24-1-2; (9) collateral estoppel and/or res judicata bar the adjudication of Plaintiffs' claims relating to issues adjudicated in their criminal prosecutions; (10) the Milan Defendants lacked personal participation in the retention of Plaintiffs' possessions that were irrelevant to their criminal prosecution; (11) no private right of action exists under the Indiana Constitution; and, to the extent Plaintiffs have brought state law claims; (12) Defendants are entitled to law enforcement immunity under Indiana law; and (13) there is no personal liability for the officers under Indiana Code § 34-13-3-5(c).

The Batesville Defendants (the City of Batesville, Lt. Thielking, Officer Abel and Officer Browning), argue, inter alia, that: (1) they had no involvement in Eric's seizure or arrest; (2) they did not personally participate in the procurement of any warrants; (3) they did not personally participate in the retention of Plaintiffs' property; (4) Plaintiffs' claims regarding the warrants and probable cause are barred by res judicata and collateral estoppel; (5) they did not violate Plaintiffs' Fourth Amendment rights; (6) the procedural due process claims are barred by the Parratt/Hudson doctrine; (7) Plaintiffs have no substantive due process claim; (8) Plaintiffs have no equal protection claim; (9) the Batesville Defendants are entitled to qualified immunity in their individual capacities as there was no constitutional violation and there is no evidence that the Batesville Officers negligently or knowingly violated Plaintiffs' constitutional rights; (10) Monell bars the claims against the City and the official capacity claims against the officers; (11) Eric and Marcia lack standing to sue on behalf of Southern Response; (12) Plaintiffs have no private right of action under the Indiana Constitution; (13) the Batesville Defendants are entitled to immunity under Indiana Code § 34-13-3-3(8) to the extent state claims are asserted against them; (14) there is no personal liability pursuant to Indiana Code § 34-13-3-5(c); and (15) they did not criminally convert Plaintiffs' property.

Summary judgment is sought by the Ripley Defendants on the grounds that: (1) they lacked the personal involvement or responsibility required by § 1983; (2) they are entitled to qualified immunity; (3) Plaintiffs have not shown an unconstitutional custom, practice or policy of Ripley which deprived them of their rights; (4) Plaintiffs have no claim under the Indiana Constitution; and (5) the individual Ripley officers are entitled to law enforcement immunity as against the state law claims. The Ripley Defendants also adopt the Batesville Defendants' arguments regarding (1) res judicata/collateral estoppel, (b) the lack of merit in Plaintiffs' Fourth Amendment, substantive due process and equal protection claims, (c) the Parratt/ Hudson doctrine, (d) standing, (e) governmental immunity, and (f) conversion. (Ripley Br. at 9 n. 5.)

Plaintiffs sued the Ripley County Sheriff's Department and the Ripley County officers in their official capacity claims. The Ripley Defendants seek dismissal of all claims against the Ripley County officers in their official capacities as redundant of the claims against the Sheriff's Department. ( See Ripley Mem. at 16-17.)

The Ripley County Sheriff's Department, however, is not a suable entity under Indiana law. See Ind. Code §§ 36-1-2-23, 36-1-4-3; Long v. Barrett, 2002 WL 662140, at *2 (S.D. Ind. 2002) (quoting Jones v. Bowman, 694 F. Supp. 538, 544 (N.D. Ind. 1988); see also McGivern v. City of Indianapolis, 2003 WL 21989996, at *5 (S.D. Ind. 2003). Therefore, the claims against the Ripley County Sheriff's Department will be DISMISSED. The claims against the Ripley County officers in their official capacities, however, are not redundant of any claims. Such claims would be redundant of claims against Ripley County, but the County has not been sued in this case.

The State Defendants (the State, ISP, DNR, Supt. Carraway, and Officers Knapp, Day, LeBlanc, Eaglin, Lewis, and Todd) seek summary judgment, contending: (1) sovereign immunity and the Eleventh Amendment bars claims against the State, ISP, DNR, Supt. Carraway and the officers in their official capacities; (2) they did not violate Plaintiffs' rights under the Fourth and Fourteenth Amendments or the Indiana Constitution; (3) Plaintiffs cannot bring a damages claim under the Indiana Constitution; (4) Defendants sued in their individual capacities are entitled to qualified immunity; and (5) the Ripley County Prosecutor and deputy prosecutors are not defendants, but even if they were, the Eleventh Amendment would bar any official capacity claims and prosecutorial immunity would bar any personal capacity claims. Additionally, the State Defendants adopt the same arguments of the Batesville Defendants which were adopted by the Ripley Defendants. The State Defendants also adopt the additional arguments made by the Milan Defendants regarding retention of evidence, the validity of the search warrants, and law enforcement immunity under § 34-13-3-(7).

A court will grant summary judgment if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The court must "construe all facts in a light most favorable to . . . the party opposing summary judgment, and . . . draw all reasonable inferences in his favor." McGreal v. Ostrov, 368 F.3d 657, 672 (7th Cir. 2004) (citation omitted). However, the nonmoving party bears the burden of coming forward with specific facts from the record which show a genuine issue of material fact. Morfin v. City of E. Chi., 349 F.3d 989, 997 (7th Cir. 2003) (citation omitted).

The applicable law is relatively straight-forward. Because it is the application of the governing law which may lead to different results, the court sets forth the applicable law below and then applies the law to the facts in the following sections of this entry.

VI. FEDERAL CLAIMS

Plaintiffs bring their federal claims under 42 U.S.C. § 1983.¹⁰ To establish a § 1983 claim, a plaintiff must prove that: (1) the defendant deprived the plaintiff of a right secured by the Constitution or laws of the United States, and (2) the defendant acted under color of state law. J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 791 (7th Cir. 2003), cert. denied, 124 S. Ct. 1891 (2004). The first step in the § 1983 analysis is to identify the specific right which was allegedly violated. Gossmeyer v. McDonald, 128 F.3d 481, 489-90 (7th Cir. 1997) (citations omitted). Plaintiffs allege Defendants violated their rights under the Fourth Amendment to be free from unreasonable seizures and violated their due process and equal protection rights under the Fourteenth Amendment. It is not disputed that Defendants acted under color of law.

A. Standing

Defendants argue that to the extent the Fermagliches purport to recover damages on behalf of Southern Response, they lack standing. While the Fermagliches lack standing to assert a violation of Southern Response's rights, see Rakas v. Illinois, 439 U.S. 128, 134 (1978); Young v. Murphy, 90 F.3d 1225, 1236 (7th Cir. 1996), they have standing to assert violations of their own rights, which they have done here.

B. Eleventh Amendment

The Eleventh Amendment bars an action for damages in federal court against States and state officials acting in their official capacities. Broker v. Mercer County, 235 F.3d 1000, 1009 (7th Cir. 2000) (citing Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir. 1997)). An individual capacity damages claim, however, is not barred by the Eleventh Amendment. Id. Thus, this court lacks subject matter jurisdiction over Plaintiffs' claims for damages against the State, ISP, DNR, as well as against Supt. Carraway, and Officers Knapp, Day, Eaglin, LeBlanc, Lewis, and Todd in their official capacities. See Moore v. State of Ind., 999 F.2d 1125, 1229 (7^th Cir. 1993). These claims will be dismissed for lack of jurisdiction. Plaintiffs bring damages claims only; they do not seek prospective relief.

The Eleventh Amendment would also bar any damages claim against Ripley County Prosecutor Hertel in his official capacity. Plaintiffs argue in their briefs that Prosecutor Hertel may be held liable; however, Prosecutor Hertel is not named as a Defendant in this case. As prosecutor, Hertel acts a state official. See Blankenship v. City of Martinsville, 2002 WL 31040708, *2 (S.D. Ind. Aug. 23, 2002). In addition, because Prosecutor Hertel was acting within the scope of his prosecutorial authority when he approved Ms. Fermaglich's detention, he would be absolutely immune from individual liability. See Grow v. Fisher, 523 F.2d 875, 877 (7^th Cir. 1975) (holding state prosecutor immune from § 1983 suit alleging prosecutor prosecuted criminal complaint with malice and absent probable cause); Sims v. Barnes, 689 N.E.2d 734, 736-37 (Ind.Ct.App. 1997) (holding prosecutor was acting within scope of his prosecutorial authority when he made statement to press and was absolutely immune from liability in defamation action). Had Plaintiffs brought damages claims against Prosecutor Hertel, such claims would be dismissed.

C. Probable Cause

Plaintiffs' claim that Officer Davies improperly induced the Ripley Superior Court to issue search warrants for Milan and Batesville, by supplying improper, inadequate, and misleading, if not false and fraudulent information in the probable cause affidavit. Defendants argue that collateral estoppel precludes the Fermagliches from relitigating whether the search warrants were supported by probable cause.

The preclusive effect of a state court judgment in a federal action is a question of state law. Haring v. Prosise, 462 U.S. 306, 313-14 (1983). Under Indiana law, collateral estoppel, or issue preclusion, bars relitigation of a fact or issue which was actually and necessarily determined in a former lawsuit if the same fact or issue is presented in a subsequent lawsuit. Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 230 (Ind.Ct.App. 2004) (citing, inter alia, Shell Oil Co. v. Meyer, 705 N.E.2d 962, 968 (Ind. 1998)). "[T]he former adjudication will be conclusive in the subsequent action even if the two actions are on different claims." Id. (citing Sullivan v. Am. Cas. Co., 605 N.E.2d 134, 137 (Ind. 1992)).

Defensive collateral estoppel, which Defendants raise here, "may be asserted in a situation where a defendant seeks to prevent a plaintiff from asserting a claim which the plaintiff had previously litigated and lost." Millenium Club, Inc. v. Avila, 809 N.E.2d 906, 911 (Ind.Ct.App. 2004) (quotation omitted). "'The primary consideration in the defensive use of collateral estoppel is whether the party against whom the former adjudication is asserted had a full and fair opportunity to litigate the issue and whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel in the subsequent action." Id. at 912 (quotation omitted). "Issue preclusion is an affirmative defense." Adair v. Sherman, 230 F.3d 890, 894 (7th Cir. 2000) (citing Blonder-Tongue Lab., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971)). Thus, the defendant bears the burden of establishing collateral estoppel. Id.

Defendants contend that the Fermagliches had full and fair hearing on the issue of probable cause in their state suppression hearings. Thus, the question is whether the issues Plaintiffs seek to litigate in the present action are the same issues that were litigated in those hearings.

In Bailey v. Andrews, 811 F.2d 366 (7th Cir. 1987), the Seventh Circuit held that a § 1983 plaintiff alleging arrest without probable cause in federal court was not collaterally estopped from bringing the federal suit where in a preliminary proceeding the state court had determined that there was probable cause for the charge. The Seventh Circuit distinguished the issues by noting that in the federal action the plaintiff was challenging the integrity of the evidence presented at the probable cause hearing, whereas, the state court hearing was designed to evaluate the sufficiency of the evidence. Id. at 369-70. A state defendant is "not collaterally estopped from bringing a § 1983 action challenging the integrity of the evidence that was presented in a probable cause hearing." Id. at 370 (citing Whitley v. Seibel, 676 F.2d 245 (7th Cir.), cert. denied, 459 U.S. 942 (1982)). The Seventh Circuit in Bailey noted that "In Whitley, as in this case, the defendant 'did not seek to relitigate the probable cause finding, but charged that the arresting officer's bad faith vitiated the finding.'" Id. (quoting Whitley, 676 F.2d at 249). Other decisions likewise hold that collateral estoppel does not bar a challenge to the integrity of the evidence supporting probable cause. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9^th Cir. 2004) ("collateral estoppel does not apply when the decision to hold a defendant to answer was made on the basis of fabricated evidence presented at the preliminary hearing or as the result of other wrongful conduct by state or local officials"); Schertz v. Waupaca County, 875 F.2d 578, 581 (7th Cir. 1989) (collateral estoppel bars an action challenging the sufficiency of the evidence to establish probable cause, but not an action challenging the integrity of the evidence used to establish probable cause).

Defendants argue that Guenther v. Holmgreen, 738 F.2d 879 (7th Cir. 1984), should apply here. In Guenther, court held that the plaintiff was collaterally estopped from alleging that he was arrested without probable cause since the claim was litigated in the state probable cause hearing. The court found that the facts in Guenther were distinguishable from Whitley because Guenther raised and actually litigated the sufficiency and integrity of the evidence supporting probable cause in the preliminary hearing. Id. at 884.

In this case, the evidence establishes that prior to Mr. Fermaglich's guilty plea, the state court decided that the search warrants were supported by probable cause. The probable cause issue was actually decided — the court held a hearing, heard evidence and arguments of counsel, including counsel for Mr. Fermaglich. The issue was necessarily decided as well. Without probable cause, the warrants would have been invalid, the evidence seized would have been suppressed, and thus there would have been no evidence that Mr. Fermaglich committed a crime. Thus, collateral estoppel would bar any claim by Eric in this case challenging the sufficiency of the evidence used to establish probable cause. However, nothing in the record suggests that he actually litigated the integrity of the evidence used to establish probable cause. Thus, Mr. Fermaglich's claim challenging the integrity of that evidence is not barred by collateral estoppel. See Schertz, 875 F.2d at 581 (collateral estoppel bars an action challenging the sufficiency of the evidence to establish probable cause, but not an action challenging the integrity of the evidence used to establish probable cause).

As for Ms. Fermaglich, she also moved in state court to quash the search warrants and suppress all evidence seized. She argued that Officer Davies' affidavit for search warrant contained false and misleading information which he knew to be false or would have known to be false but for a reckless disregard for the truth, as asserted in Count I in this case, and the state court held a hearing at which she was represented by counsel. However, nothing raises a reasonable inference that the court heard evidence at the hearing. Similarly, she did not rely on evidence in arguing the integrity issue to the court of appeals. So it cannot be said that she had a full and fair opportunity to litigate the integrity of the evidence supporting the search warrants. See id. Thus, the court finds that collateral estoppel does not preclude Ms. Fermaglich from challenging the integrity of the evidence presented by Officer Davies in support of the search warrants.

"'[T]here is . . . a presumption of validity with respect to the affidavit supporting the search warrant.'" Molina ex rel. Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003) (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)). "To overcome this hurdle, the [Plaintiffs] must provide evidence that the officers 'knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and that the false statements were necessary to the judicial officers' determinations that probable cause existed for the arrests.'" Id. (quoting Beauchamp v. City of Noblesville, 320 F.3d 733, 742 (7th Cir. 2003)). "A reckless disregard for the truth is demonstrated by showing that the officers entertained serious doubts as to the truth of their statements, had obvious reasons to doubt the accuracy of the information reported, or failed to inform the judicial officer of facts they knew would negate probable cause." Beauchamp, 320 F.3d at 970.

Plaintiffs argue:

Officer Davies states in his probable cause affidavit that according to his investigation, Eric Fermaglich had surrendered his paramedic certification on October 8, 1999; therefore, neither Eric or Marcia who owned Southern Response Inc., had the legal right to possess drugs. . . . [B]ecause Officer Davies' training is not in dispute, the question becomes Davies' numerous opportunities to consult and investigate the established procedures for the seizure of Southern Response's vehicles. Prior to seeking review from his superiors, a prosecutor, and a neutral judge, Davies had a duty to investigate any allegations that Eric Fermaglich was using the vehicles to deal in illegal drugs and controlled substances;- but, for reasons unknown to the Plaintiffs, failed to follow this established procedure.

(Pls.' "Reply" to Milan's Mot. Summ. J. at 8.) Their position is unpersuasive. First, because Plaintiffs contend that Officer Davies' alleged unconstitutional conduct was in deviation from, rather than caused by, municipal procedures, Plaintiffs do not state a claim against the Town of Milan. In addition, their evidence fails to raise a reasonable inference that the Town had a custom, policy or practice of executing probable cause affidavits with false, fraudulent or misleading evidence. Thus, summary judgment will be GRANTED the Town of Milan on Plaintiffs' claim challenging the evidence supporting the affidavit for probable cause.

Second, the allegation that Officer Davies failed to conduct further investigation falls short of demonstrating that he, with a reckless disregard for the truth, made false statements to the court. It is clear that "'once police officers have discovered sufficient facts to establish probable cause, they have no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.'" Forman v. Richmond Police Dep't, 104 F.3d 950, 962 (7th Cir. 1997) (quoting Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995)). But see Whitley v. Seibel, 676 F.2d 245, 249-50 (7th Cir. 1989) (noting for purposes of collateral estoppel discussion that plaintiff's § 1983 suit involved different issue than in state proceeding; plaintiff's § 1983 suit was based on allegation that officer failed to investigate alibi evidence and made misrepresentations to prosecutors that he investigated alibi evidence). Plaintiffs' allegations and evidence do not create a triable issue of fact regarding whether Officer Davies knowingly or intentionally or with a reckless disregard for the truth made false statements to support a finding of probable cause to arrest or search. Accordingly, Defendants' motions for summary judgment will be GRANTED on Plaintiffs' based on allegations that Officer Davies engaged in misconduct in executing the Probable Cause Affidavit.

D. Unreasonable Seizures

Plaintiffs contend that Defendants in executing the search warrants exceeded the scope of the warrants in violation of the Fourth Amendment.¹¹ Plaintiffs challenge the seizures of items which they contend were outside the scope of the warrants (Compl ¶¶ 10-12, 17, 19, 23); they do not challenge the actual searches themselves. "Generally, the government needs a warrant to seize property." Siebert v. Severino, 256 F.3d 648, 656 (7th Cir. 2001). However, even with a warrant, the government can violate an individual's Fourth Amendment right to be free of unreasonable seizures. "Flagrant disregard for the terms of the warrant transforms it into a general warrant, which the Fourth Amendment forbids." Hessel v. O'Hearn, 977 F.2d 299, 302 (7th Cir. 1992). It is "uncontroverted and long established" that "the Fourth Amendment 'prevents the seizure of one thing under a warrant describing another.'" Doe v. Broody, 361 F.3d 232, 243 (3d Cir. 2004) (citing Marron v. United States, 275 U.S. 192, 196 (1927)); see also Shamaeizadeh v. Cunigan, 338 F.3d 535, 554 (6th Cir. 2003) (citing Andresen v. Maryland, 427 U.S. 463, 480 (1976).

11 Plaintiffs do not contest the search and seizure of the Geo Prism.

1. November 6 and 7 Seizures a. Bills, Receipts, Run Sheets

Plaintiffs allege that the seizure of bills, receipts, and run sheets, exceeded the scope of the warrants. The court finds that these items fall squarely within the scope of the warrants which authorized the search for and seizure of "Any and all records pertaining to the purchase of, use, and destruction of drugs used by the company." Bills and receipts pertain to the purchase of drugs by the company, while run sheets reasonably could be viewed to pertain to the use of drugs. Cf. United States v. Snow, 919 F.2d 1458, 1461 (10th Cir. 1990) (F.B.I. did not exceed scope of warrant when they seized the defendant's personal financial statement where warrant authorized seizure of "all documents relating to several properties involved in defendant's real estate scheme"); United States v. McManus, 719 F.2d 1395, 1400 (6th Cir. 1983) (seizure of promissory notes did not exceed scope of warrant authorizing seizure of "banking records . . . to show income received" by defendant).

Plaintiffs allege that in seizing paperwork within the scope of the warrants the officers seized paperwork not specifically described in the warrants. In Hessel, the Seventh Circuit rejected the notion that an officer executing a search warrant may only seize items unquestionably listed in the warrant. "Officers are entitled to rely on a search warrant, "which means they [are] required to interpret it." Hessel, 977 F.2d at 302 (citing Patton v. Przybylski, 822 F.2d 697, 699 (7th Cir. 1987); Hill v. McIntyre, 884 F.2d 271, 277 (6th Cir. 1989)). The Seventh Circuit held that officers are not required to interpret a warrant narrowly. A narrow interpretation would be a mistake, the court noted, "because items not in fact necessary for proceedings against the owner can always be returned whereas items not seized are unlikely to be found the next time the police go looking for them." Id. Furthermore, "[t]he prosecutor is in a better position to winnow the wheat from the chaff than the police are, and he cannot do this if the police interpret the warrant narrowly." Id. (citing Andresen v. Maryland, 427 U.S. 463, 479-82 (1976); United States v. Lucas, 932 F.2d 1210, 1215-16 (8th Cir. 1991)). Thus, in Hessel, where the plaintiffs were thought to be running an illegal gambling business, the Seventh Circuit held that seizure of "legal lottery tickets, an adding machine, the cover of a telephone book, and a number of glasses, jars, and other containers that had held small sums of money" did not exceed the scope of a warrant permitting the seizure of "illegal lottery tickets, "money which [sic] is the fruit or has been used in the commission of a crime" and "documents that may constitute evidence of a crime." Id. at 301.

Moreover, given the extensive set of records permitted to be seized by the officers, it was inevitable that paperwork not specifically described in the warrant, but intermingled with the specifically described records, would also be seized. It would be unreasonable to require the officers sift through the great number of records in order to pull out records that were not included in the warrant. See United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999) (holding that where "officers could not immediately identify which videos were most likely to fit the description of the items that they were authorized to seize" because the officers "could not practically view more than 300 videos at the search site, the officers did not exceed the scope of the warrant by seizing the plaintiff's entire video collection in order to examine it elsewhere); United States v. Hargus, 128 F.3d 1358, (10th Cir. 1997) (where warrant authorized seizure of "ten broad categories of records, and those records were present in every drawer of both file cabinets," and officers seized both cabinets, including records not within warrant, court held officers did not "grossly exceed the warrant in concluding they did not need to examine at the site every piece of paper in both cabinets); United States v. Hensen, 848 F.2d 1374, 1383-84 (6th Cir. 1988) ("Since the extensive seizure of records was authorized by the terms of the warrant, it was inevitable that the officers would seize documents that were not relevant to the proceedings at hand. We do not think it reasonable to have required the officers to sift through the large mass of documents and computer files found . . . in an effort to segregate those few papers that were outside the warrant."); see also United States v. Christine, 687 F.2d 749, 760 (3d Cir. 1982) ("Nor does the Fourth Amendment prohibit seizure of an item, such as a single ledger, merely because it happens to contain other information not covered by the terms of the warrant."). But see United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (Ninth Circuit refused to sanction "the wholesale seizure for later detailed examination of records not described in a warrant"). The court finds that the seizure of the bills, receipts and run sheets did not violate Plaintiffs' Fourth Amendment rights.

b. Computers and Computer Equipment

Plaintiffs allege that four computers as well as computer equipment were seized. The terms of the warrant did not explicitly include computers or computer equipment; but, the warrant permitted seizure of "Any and all records pertaining to the purchase of, use, and destruction of drugs used by the company" and it can reasonably be inferred that such records would be stored and maintained by a computer. This court's research did not uncover a Seventh Circuit case that addresses whether seizure of computers is permissible under a warrant that authorizes seizure of information that a police officer could reasonably infer to be contained within a computer. So, the court is guided by the several district court and state court opinions which have addressed the issue and have held that the seizure of a computer did not exceed the scope of the warrant in similar situations. See, e.g., United States v. Sissler, No. 1:90-CR-12, 1991 WL 239000 (W.D. Mich. Aug. 30, 1991); People v. Gall, 30 P.3d 145 (Colo. Mar. 5, 2001); see also United States v. Scott-Emuakpor, No. 1:99-CR-138, 2000 WL 288443 (W.D. Mich. Jan. 25, 2000).

In United States v. Sprewell, the Ninth Circuit held that the police did not exceed the scope of the warrant when they seized a computer and diskettes where the search warrant authorized the seizure of "any talley sheets or pay and owe sheets which tend to establish any narcotics and dangerous drugs transactions." 936 F.2d 581 (9th Cir. 1991) (unpublished). The Ninth Circuit noted that "After taking the computer back to police headquarters, a computer specialist helped find files in the computer's electronic memory that purportedly contained pay-and-owe sheets evidencing narcotics sales." The Ninth Circuit held that the district court did not err in holding that the computer and disks were within the scope of the warrant, reasoning that "An officer searching for payand-owe sheets could reasonably expect to find them within the memory of a computer." The Ninth Circuit found the facts analogous to the facts in United States v. Gomez-Soto, 723 F.2d 649 (9th Cir.), cert. denied, 466 U.S. 977 (1984), in which the Ninth Circuit upheld the admissibility of a micro cassette, which was seized during a search warrant that authorized the seizure of tangible documents and not electronically stored documents. In Gomez-Soto, the court had reasoned that "'[i]f a warrant sufficiently describes the premises to be searched, this will justify a search of the personal effects therein belonging to the person occupying the premises if those effects might contain the items described in the warrant.'" Id. (quoting Gomez-Soto, 723 F.2d at 654). The Ninth Circuit in Sprewell stated that "[l]ike the micro cassette in Gomez-Soto, a computer is 'by its very nature a device for recording information.'" Id. (quoting Gomez-Soto, 723 F.2d at 655).

Similarly, in Sissler, the search warrant for the defendant's home and recording studio authorized the search of "the premises and its surroundings for marijuana, marijuana paraphernalia, marijuana proceeds in the form of United States currency, records of drug transactions, records of assets purchased with the proceeds of marijuana transactions, and records identifying marijuana customers and suppliers." 1991 WL 239000, at *1. Pursuant to the warrant, the police seized a personal computer and almost 500 disks. The district court held that the police did not flagrantly disregard the terms of the search warrant. The court reasoned: "Law enforcement officers are permitted to search any container found within the premises if there is reason to believe that the evidence sought pursuant to the warrant is in it." Id. at *4. The court also held:

The police also were not obligated to inspect the computer and disks at the Baldori residence because passwords and other security devices are often used to protect the information stored in them. Obviously, the police was permitted to remove them from the Baldori residence so that a computer expert could attempt to 'crack' these security measures, a process that takes some time and effort.

Id. Additionally, the seizure of the computer equipment was found reasonable. In Scott-Emuakpor, 2000 WL 288443, the district court held that the seizure of monitors and keyboards was reasonable "because it allowed the agents to preserve the computer system as it existed for the computer analysts, who were not present during the search, without taking the risk of losing any files." Id. at *7. Following this line of cases, the court finds that the seizure of the computers and computer equipment did not exceed the scope of the warrant and thus, did not violate Plaintiffs' Fourth Amendment rights.

c. Vehicles

Defendants contend that the terms of the search warrants permitted the seizure of the EMT vehicles. The Milan Defendants argued that the warrants authorized the seizure of vehicles, but unlike Defendants, the court does not read the warrant to permit their seizure.

According to the Milan Defendants, it is appropriate to collect vehicles which appear to have some relevance to the investigation and search warrants rather than miss out on obtaining potentially important evidence. Although the Seventh Circuit in Hessel held that officers are not required to interpret a warrant narrowly, the court also warned that there are limits to interpretation and a search warrant is not a blank check for the searching officers. Hessel, 977 F.2d at 302. The seizure of four or five vehicles under a warrant that authorizes the seizure of prescription drugs and paraphernalia and records pertaining to the purchase, use and destruction of drugs amounts to a disregard of the terms of the warrant.

In United States v. Robbins, 21 F.3d 297, 300-01 (8th Cir. 1994), a similar argument was made by the government that because the warrant authorized the search of wallet, it authorized the seizure of wallet. The court stated that the government's argument revealed a "fundamental misapprehension of Fourth Amendment law." Id. at 300-01. The court explained:

A search warrant does not give police license to seize personal property not described in the warrant on the ground that such property might contain items that the warrant does describe; it only allows police to search such property at the place where the warrant is being executed if the property legitimately might contain the [items] specified in the warrant, and then to seize the described items they find inside or, under certain circumstances, the property itself once it is found to contain described items.

Id.; cf. United States v. Rizzo, 583 F.2d 907 (7th Cir. 1978) ("Where warrant authorized search only of defendant's car, it was of no help to the Government in justifying seizure of tape cassette from his person.").

Defendants assert that even if it seized items that were outside the scope of the search warrant there was authority under Indiana Code § 34-24-1-1 and § 34-24-1-2 to seize the vehicles. The statute permits the seizure of the following:

(1) All vehicles (as defined by IC 35-41-1), if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of the following:

(A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following:

(i) Dealing in or manufacturing cocaine, a narcotic drug, or methamphetamine (IC 35-48-4-1).

(ii) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).

(iii) Dealing in a schedule IV controlled substance (IC 35-48-4-3).

(iv) Dealing in a schedule V controlled substance (IC 35-48-4-4).

(v) Dealing in a counterfeit substance (IC 35-48-4-5).

(vi) Possession of cocaine, a narcotic drug, or methamphetamine (IC 35-48-4-6).

(vii) Dealing in paraphernalia (IC 35-48-4-8.5).

(viii) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10).

Ind. Code § 34-24-1-1(1)(A). Indiana Code § 34-24-1-2(a)(1) states: "(a) Property may be seized under this chapter by a law enforcement officer only if: (1) the seizure is incident to a lawful: (A) arrest; (B) search; or (C) administrative inspection."

Defendants assert that there was evidence in the probable cause affidavit that Plaintiffs were using the vehicles to transport drugs. Officer Davies had been informed by Officer Davis that during questioning, Eric Fermaglich admitted to keeping expired and unused drugs at his offices, transporting drugs in his Range Rover from the Milan office to the Batesville office, not disposing of old and out of date drugs and keeping drugs in the response vehicles.

"[P]olice may seize a car without a warrant pursuant to a forfeiture statute if they have probable cause to believe that the car is subject to forfeiture." United States v. Pace, 898 F.2d 1218, 1241 (7th Cir. 1990) (citations omitted). The court finds that Defendants had probable cause to believe that the vehicles were subject to forfeiture. In Katner v. State, 655 N.E.2d 345 (Ind. 1995), one of the few cases interpreting the forfeiture statute, the Indiana Supreme Court held that the forfeiture statute "requires more than an incidental or fortuitous connection between the property and the underlying offense," rather, there must be an "adequate nexus" between the property and the underlying offense. Id. at 348-49. The court finds an adequate nexus between the seized vehicles and the offenses of possession of a controlled substance.

Eric had admitted to Officer Davis to transporting drugs in his Range Rover and to keeping drugs in the response vehicles. He also admitted that Southern Response's paramedic business was out of business at the time. Officer Davis communicated with Ms. Crane of the EMS Commission about the drugs found in the Geo Prism and she said that Mr. Fermaglich would have no reason to have those narcotics since he had surrendered his paramedic's license. Officer Davis communicated what Eric had said about the drugs to Officer Davies. Officer Davies then spoke with Ms. Blagrave, the EMS District Manager for the Ripley area, who indicated Southern Response was no longer a certified paramedic provider. Under Indiana Code § 34-24-1-1(a)(1)(A)(vi), "[a]ll vehicles (as defined by IC 35-41-1) . . . used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of . . . [a] controlled substance for the purpose of committing, attempting to commit, or conspiring to commit . . . [p]ossession of cocaine, a narcotic drug, or methamphetamine (IC 35-48-4-6)" may be seized.

Plaintiffs argue that they were contract carriers and as such the provision governing seizure of vehicles used by contract carriers should apply, citing Indiana Code § 34-24-1-1(b). They argue this provision requires proof that the vehicle was being used for the purpose of dealing. The court does not find this requirement. The statute provides:

A vehicle used by any person as a common or contract carrier in the transaction of business as a common or contract carrier is not subject to seizure under this section, unless it can be proven by a preponderance of the evidence that the owner of the vehicle knowingly permitted the vehicle to be used to engage in conduct that subjects it to seizure under subsection (a).

Ind. Code § 34-24-1-1(b). There is no dealing requirement in this provision.

The court finds that the officers had probable cause to believe that Mr. Fermaglich was using the response vehicles to transport narcotic drugs. The court also finds that the seizure of the vehicles was incident to lawful searches. Thus, Indiana Code § 34-24-1-1(1)(A)(vi) and § 34-24-1-2(a)(1) authorized the seizure of the vehicles. Accordingly, Defendants' motions for summary judgment will be GRANTED on Plaintiffs' claims of unreasonable seizures of vehicles on November 6 and 7, 1999. As addressed infra, the Defendant officers are entitled to qualified immunity as against Plaintiffs' claims of unreasonable seizures of the vehicles, which is another ground upon which summary judgment should be granted.

d. Medical Supplies, Equipment and Other Property

Plaintiffs allege that Defendants seized medical supplies, equipment and other property. The court notes that there is evidence in the record that medical supplies were taken from storage cabinets at the Milan building. Also, there is evidence that Emergency Response Unit ALS 10 was "full of equipment." To show a genuine issue of material fact as to the seizure of such items, however, Plaintiffs must make a showing which raises a reasonable inference that such items were outside the scope of the warrants. And as noted, the warrants authorized the seizure of prescription drugs and any and all accompanying paraphernalia. Plaintiffs have not identified the seized "medical supplies," equipment (other than computer related equipment addressed earlier) and other property with any particularity. Therefore, the court concludes that they have not come forward with specific facts from the record which show a genuine issue of material fact regarding the alleged unconstitutional seizure of such items. Defendants' motions for summary judgment are GRANTED on the claims of unreasonable seizure of the medical supplies, equipment and other items.

2. November 10 Seizure

Plaintiffs' unreasonable seizure claim based on the seizure of Medic 3 and the scheduling book fail. The seizure of the ambulance was authorized — the ambulance had been abandoned on the premises of Rick's for approximately two weeks, and the owner of Rick's requested the Greendale Police Department to remove it. Medic 3 was taken to Hardin Town Salvage. Under Indiana law, the police may remove a vehicle from private property and have it towed when requested to do so by the owner of the property. See Ind. Code §§ 9-22-1-15, -16, -18. Southern Response's scheduling book was within the scope of the warrant authorizing seizure of evidence relating to prescription drugs. Thus, Defendants will be GRANTED summary judgment on the claims based on the seizure of Medic 3 and the scheduling book.¹² As discussed below, even if the seizure of Medic 3 and the scheduling book was improper, qualified immunity shields Officer Davis from liability.

12 As well, Plaintiffs have failed to demonstrate that the Milan Defendants, or any other Defendants for that matter, were involved in the decision to seize Medic 3 or the scheduling book. Although Plaintiffs allege that the Greendale Defendants were holding Medic 3 for Officer Davies, they have produced no evidence in support of that assertion. Summary judgment is appropriate for this reason as well.

E. Failure to Intervene

The Fifth Circuit and Ninth Circuit have held that officers who do not physically perform an unconstitutional search but perform functions integral to that search can be held liable for the constitutional violation. Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (holding officers could be held liable for excessive force where they stood armed behind officer who deployed the flash-bang from the doorway, they were aware of the decision to use the flash-bang, did not object and participated in the search knowing it was going to be deployed); James ex rel. James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (officers who did not physically perform pat-down search but provided armed backup on the premises during the entire search and guarded detained customers outside shop while search and arrest took place participated in unconstitutional search); Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir. 1989) (officer who does not enter apartment but stands armed at the door while search is conducted by others can be a participant in unconstitutional search). The Sixth Circuit, on the other hand, has held that "[a]s a general rule, mere presence at the scene of a search, without a showing of direct responsibility for the action, will not subject an officer to liability." Ghandi v. Police Dep't of Detroit, 747 F.2d 338, 352 (6th Cir. 1984). The Seventh Circuit has not directly addressed whether police officers who are present at an unconstitutional search or seizure and merely provide backup security can be held liable for the constitutional violation.

However, in the Seventh Circuit, police officers who have "a realistic opportunity to step forward and prevent a fellow officer from violating a plaintiff's rights through the use of excessive force but fail to do so" can be held liable under § 1983. See Fillmore v. Page, 358 F.3d 496, 505-06 (7th Cir. 2004); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (collecting other cases). This follows from the rule that "'[a]n official satisfies the personal responsibility requirement of § 1983 if she acts or fails to act with a deliberate or reckless disregard of the plaintiff's constitutional rights.'" Fillmore, 358 F.3d at 506 (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982) (emphasis in Fillmore). Thus, "[a]n officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know . . . that any constitutional violation had been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Chavez v. Ill. State Police, 251 F.3d 612, 652 (7th Cir. 2001) (quoting Yang, 37 F.3d at 285). The Defendants argue that none of them had a realistic opportunity to intervene to prevent the alleged constitutional harms.

In this case, even assuming a constitutional violation, the court finds that no reasonable trier of fact could infer from the evidence that Defendants Davison, Hyatt, Grills, Doane and Craig (or for that matter, Sheriff Dramann who is not named as a Defendant) had reason to know that Plaintiffs' constitutional rights to be free from unreasonable seizure were being violated and had a realistic opportunity to intervene. First, it is not reasonable to infer from the evidence that these Defendants knew the contents of the Milan search warrant, that is, the items whose seizure was authorized. Though Officer Davies conducted a pre-search briefing session attended by Davison, Craig, and Grills of the Ripley Sheriff's Department, the evidence does not raise a reasonable inference that Officer Davies or anyone else read the warrants at the session. There is evidence that Officers Davison, Craig and Grills participated in a discussion with other law enforcement officers regarding the warrant relating to the Milan residence. Though Officer Craig states he recalls a portion of that warrant was read to him by Davies, he does not indicate what portion was read, when it was read, whether it was read in the presence of other officers and whom, and the record lacks any information about the other particulars of the officers' discussion.

Thus, Plaintiffs have not raised a triable issue as to whether Davison, Craig, and Grills knew what items were authorized to be seized pursuant to the search warrant. Nor have they raised a genuine issue with regard to Hyatt and Doane, who did not even attend the pre-search briefing session. Because there is no evidence to raise a reasonable inference that these Defendants had reason to know what items were to be seized under the warrant, no reasonable trier of fact could find that they had any reason to know that the vehicles were outside the scope of the warrant and, thus, that their seizure by others violated Plaintiffs' constitutional rights.

Moreover, even if these Defendants had reason to know that the seizure of the vehicles was outside the scope of the warrant, the evidence is insufficient to raise a reasonable inference that these Defendants had a realistic opportunity to intervene to prevent that seizure. Plaintiffs have not identified evidence in the record to establish what time of day the vehicles were removed, whether these Defendants were present at that time, whether these Defendants actually observed the removal of the vehicles, or had any other reason to know that they were being seized. The officers could not have had a realistic opportunity to intervene in conduct which they did not know was occurring. Thus, Hyatt, Davison, Grills, Craig and Doane will be GRANTED summary judgment on Plaintiffs' failure to intervene claim.

Similarly, Plaintiffs have offered insufficient evidence to create a triable issue that Lt. Mathews had a realistic opportunity to intervene to prevent the alleged constitutional violations. His job was to follow Officer Lewis and take notes at his direction. Thus, Lt. Mathews will be GRANTED summary judgment on the failure to intervene claim as well.

The State Defendants Day, Eaglin, LeBlanc and Todd also will be GRANTED summary judgment on the failure to intervene claims. Though Mr. Fermaglich may have testified that he had no evidence that the ISP or DNR Defendants knew anything when they conducted the search and seizure of the Plaintiffs' property other than what was in the warrants and affidavits for the search and seizure, this does not raise a reasonable inference that these State Defendants knew of the contents of the search warrants. Significantly, Mr. Fermaglich did not testify that he had evidence that these Defendants knew what was in the warrants. Plaintiffs offer no foundation as to how he would know whether they knew what was in the warrants anyway. Officer Eaglin's sole duty was to act as an evidence clerk at the Milan site, logging and making records of sealed evidence seized by other officers. Plaintiffs have made an insufficient showing that Officers Day, Todd or LeBlanc knew that the vehicles were seized, that they were outside the scope of the warrants, or that they had a realistic opportunity to intervene and stop the seizure of those things.

The evidence is also insufficient to raise a reasonable inference that Officer Knapp and Officer Lewis had a realistic opportunity to intervene in the seizure of vehicles. There is evidence that each of them had read the warrant (Knapp. Resp. Interrogs. No. 8; Lewis Resp. Interrogs. No. 8), so they would have known what items were authorized to be seized. Nonetheless, the evidence does not suggest that they would have had a realistic opportunity to intervene. Defendants Knapp and Lewis will be GRANTED summary judgment on the failure to intervene claims.

F. Continuing Seizure/Retention of Property

Plaintiffs appear to argue that Defendants violated their constitutional rights not only for the allegedly unconstitutional seizure of property, but because of the delay in returning the property. Defendants argue that the Seventh Circuit has rejected the "continuing seizure" concept. In Lee v. City of Chicago, 330 F.3d 456 (7th Cir. 2003), the Seventh Circuit held that a plaintiff whose property was legally seized could not bring a claim under the Fourth Amendment for unreasonable seizure if the state actor refused to return the property. "Once an individual has been meaningfully dispossessed, the seizure of the property is complete, and once justified by probable cause, that seizure is reasonable. The [Fourth] amendment then cannot be invoked by the dispossessed owner to regain his property." Lee, 330 F.3d at 466. Thus, the Fourth Amendment's protection against unreasonable seizure is limited temporally to when the plaintiff is dispossessed of the property.

Plaintiffs argue for the adoption of Justice Ginsburg's opinion in Albright v. Oliver, 510 U.S. 266, 276-80 (1994) (Ginsburg, J., concurring), in which she endorses the idea of a continuing seizure. However, the Seventh Circuit has explicitly rejected the idea. Lee, 330 F.3d at 463 (citing Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989); Reed v. City of Chi., 77 F.3d 1049, 1052 n. 3 (7th Cir. 1996)). The Defendants will be GRANTED summary judgment as to the claim that they retained evidence for an unreasonable length of time in violation of the Fourth Amendment.

G. Procedural Due Process

"'[T]he deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.'" Gable v. City of Chi., 296 F.3d 531, 539 (7th Cir. 2002) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). A claim that there has been a deprivation of procedural due process requires a two step inquiry. Williams v. Seniff, 342 F.3d 774, 786-87 (7th Cir. 2003). The first question is "'whether the defendants deprived the plaintiffs of a constitutionally protected liberty or property interest.'" Id. at 787. Second, the court asks "'if so, whether that deprivation occurred without due process of law.'" Id. The court assumes that the answer to the first question is "yes."

"The Due Process Clause requires that individuals have an opportunity to be heard 'at a meaningful time and in a meaningful manner' regarding the deprivation of life, liberty, or property." Wainscott v. Henry, 315 F.3d 844, 852 (7th Cir. 2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). "However, the precise timing and form of the procedures that the government must afford an individual hinge upon the particularities of the situation. Due process 'unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.'" Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 617-18 (7th Cir. 2002) (quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)). "To the contrary, due process is flexible, requiring different procedural protections depending upon the situation at hand." Id. at 618 (citing Gilbert, 520 U.S. at 930).

Furthermore, due process does not always require a pre-deprivation hearing. See id. "The Supreme Court has recognized that the practical exigencies of a situation may often counsel against affording plenary pre-deprivation process to an individual." Id. (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-47 (1985)). "Absent exigent circumstances, or a random or unforeseen act, a pre-deprivation procedure is generally required before the government may deprive a person of their property." Siebert v. Severino, 256 F.3d 648, 659 (7th Cir. 2001) (citing Zinermon, 494 U.S. at 132; Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982)).

Defendants contend that Plaintiffs' procedural due process claim is barred by the Parratt/Hudson doctrine. "In Parratt v. Taylor, the Supreme Court held that due process is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy." Gable, 296 F.3d at 539 (citing Parratt v. Taylor, 451 U.S. 527, 541 (1981)). "The rationale behind Parratt was that 'when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply "impracticable" since the state cannot know when such deprivations will occur.'" Gable, 296 F.3d at 539-40 (quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)). The Supreme Court in Parratt held that state law tort remedies provided adequate means for redress for the property deprivations to comport with the requirements of procedural due process. 451 U.S. at 541-42. "[T]he Supreme Court has extended Parratt's logic to apply to intentional deprivations of property." Gable, 296 F.3d at 540 (citing Hudson, 468 U.S. at 533). "Conversely, when the deprivation is caused by established state procedures, the existence of an adequate remedy at state law does not extinguish a procedural due process claim." Gonzales v. City of Castle Rock, 366 F.3d 1093, 1112 (10th Cir. 2004) (citing Logan, 455 U.S. at 435-37; Zinermon, 494 U.S. at 136-39).

Plaintiffs have alleged that a municipal policy or custom caused their constitutional injury. "In a procedural due process . . . resolution of the Monell issue will also resolve the Parratt issue." Wilson v. Civil Town of Clayton, 839 F.2d 375, 380 (7th Cir. 1988). "[A] complaint asserting municipal liability under Monell by definition states a claim to which Parratt is inapposite." Wilson, 839 F.2d at 380-81 (citations omitted). "'In Parratt, the Court emphasized that it was dealing with "a tortious loss of . . . property as a result of a random and unauthorized act by a state employee . . . not a result of some established state procedure."'" Id. at 380 (quoting Logan, 455 U.S. at 435-36). "When it is the Town itself that is being sued, and the suit is allowed under Monell because the action was executed in accordance with 'official policy,' the tortious loss of property can never be the result of a random and unauthorized act." Wilson, 839 F.2d at 380; see also Gonzales, 366 F.3d at 1112-14 ("Where a municipal officer operates pursuant to a local custom or procedure, the Parratt/Hudson doctrine is inapposite: actions in accordance with 'an official policy' under Monell can hardly be labeled 'random and unauthorized.'")

As discussed below, Plaintiffs fail to make out a claim against any of the municipal defendants because they have not produced evidence demonstrating that a municipal custom, policy or practice was the moving force behind their alleged constitutional deprivations. Without such evidence, the claimed constitutional deprivations may fall under the category of random and unauthorized acts by individual officers.

Defendants contend that because Plaintiffs were provided a post-deprivation remedy in state court, under Parratt, Plaintiffs do not have a procedural due process claim. Defendants note that Ms. Fermaglich filed a return on goods petition soon after her arrest and filed a petition for a hearing on the return of goods petition in late January 2000. Additionally, she litigated the motion to return items seized outside the scope of the warrants before the trial court judge in state court, who determined at a later hearing, five months later, what belongings were to be returned. See Hamlin v. Vaudenberg, 95 F.3d 580 (7th Cir. 1996). And, the Milan Defendants point out that they returned the ambulances to Plaintiffs within a month after the seizures. (Milan Reply at 3.)

Plaintiffs contend that these post-deprivation remedies were inadequate. They contend that "Although the Plaintiffs received a post-deprivation hearing to release the vehicles, records, and equipment, they did not receive an adequate remedy for the violation of one of their fundamental rights. By the year 2000, when the hearing was held, the business was in debt, and behind on its obligations to the federal and state government." (Pls.' Resp. Milan at 12.) The court agrees that the process due requires more than a post-deprivation hearing for the return of goods.

As in Parratt and Hudson, the court examines state tort law to determine whether adequate remedies exist. It appears that under Indiana tort law, Plaintiffs may have several post-deprivation remedies available. Plaintiffs could have brought an action in replevin, see Scott v. Archey, 2004 WL 179218, at *1 (7th Cir. Jan 22, 2004) (unpublished order) (citing State Exch. Bank of Culver v. Teague, 495 N.E.2d 262, 266 (Ind.Ct.App. 1986)), an action for breach of bailment, see id. (citing United Farm Family Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 684-85 (Ind.Ct.App. 2001)), and an action for wrongful conversion, see id. (citing Plymouth Fertilizer Co. v. Balmer, 488 N.E.2d 1129, 1140 (Ind.Ct.App. 1986)); see also Gable, 296 F.3d at 540 (Illinois law would have provided post-deprivation remedies: plaintiffs could have brought bailment or replevin actions). In fact, in the present action, Plaintiffs bring a state law claim against Defendants for criminal conversion.

Defendants contend that law enforcement immunity under the Indiana Tort Claims Act bars Plaintiffs' conversion claims. This argument undercuts the claim that Plaintiffs have adequate state law remedies and therefore do not have a procedural due process claim. However, as discussed later, neither the municipal defendants nor individual officers are entitled to law enforcement immunity under Indiana Code § 34-13-3-3(8). Also as discussed later, the individual Defendants have immunity under Indiana Code § 34-13-3-5(b) and (c) from Plaintiffs' state law claims of conversion brought against them in their individual capacities because the officers acted within the scope of their employment.

Although this finding limits Plaintiffs' state law tort remedies in that Plaintiffs could only bring claims of conversion against the municipal defendants and not the individual officers, "that does not mean that the state remedies are not adequate to satisfy the requirements of due process." Parratt, 451 U.S. at 544. In Parratt, the state remedies which the Court found adequate similarly provided the plaintiff with an action against the State only and not the individual employees. Additionally, the state remedy did not permit punitive damages or a right to a jury trial. The Court stated "Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process." Id.

Because due process did not require a pre-deprivation hearing and given the availability of adequate state law post-deprivation remedies, the Parratt/Hudson doctrine is applicable and bars Plaintiffs' procedural due process claims. All Defendants will be GRANTED summary judgment on these claims.

H. Substantive Due Process

The scope of the substantive due process doctrine is limited. Lee v. City of Chi., 330 F.3d 456, 467 (7th Cir. 2003). "[S]ubstantive due process does not apply when a particular part of the Constitution 'provides an explicit textual source of constitutional protection against a particular sort of government behavior.'" Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998) (quoting County of Sacramento v. Lewis, 523 U.S. 833 (1998) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989))); see also McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). The Fourth Amendment provides an explicit source of constitutional protection against unreasonable searches and seizure. See Marron v. United States, 275 U.S. 192, 196 (1927). Accordingly, the Fourth Amendment is the proper constitutional provision under which Plaintiffs' claims should be analyzed, and all Defendants will be GRANTED summary judgment on Plaintiffs' substantive due process claims.

I. Equal Protection

The Complaint alleges that Defendants violated Plaintiffs' rights to be equally protected under the law. Plaintiffs proceed under a "class of one" theory.¹³ To establish a "class of one" equal protection claim, Plaintiffs must prove that: (1) they have been intentionally treated differently from others similarly situated; and (2) there is no rational basis for the difference in treatment or the cause of the differential treatment is a "totally illegitimate animus" toward the Plaintiffs by the defendant. McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). Plaintiffs have not identified anyone whom they believe is similarly situated but was treated differently. Therefore, all Defendants will be GRANTED summary judgment on Plaintiffs' equal protection claims.

J. Municipal Liability

Section 1983 liability cannot be imposed against a municipality based on a theory of respondeat superior. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). Instead, "[i]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. (quotation omitted). Thus, in order to bring suit against the municipality, Plaintiffs must demonstrate that a municipal policy or custom caused the deprivation of their constitutional rights under the Fourteenth Amendment. Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003) (citation omitted). Plaintiffs must demonstrate "the requisite culpability (a 'policy or custom' attributable to municipal policymakers) and the requisite causation (the policy or custom was the 'moving force' behind the constitutional deprivation)." Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002). In sum, to establish liability against the municipal Defendants, there are three things Plaintiffs must show: "(1) [they] suffered a deprivation of a federal right; (2) as a result of either an express municipal policy, widespread custom, or deliberate act of a decision-maker with final policy-making authority for the [municipality]; which (3) was the proximate cause of [their] injury." Ienco v. City of Chi., 286 F.3d 994, 998 (7th Cir. 2002), cert. denied sub nom. Angarone v. Ienco, 537 U.S. 1028 (2002)). For purposes of summary judgment, the court assumes that Plaintiffs can prove they suffered a deprivation of a federal right — the right to be free from unreasonable seizures.

An unconstitutional policy or custom may take any one of the following three forms: "(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a 'custom or usage' with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority." Rasche, 336 F.3d at 597-98 (citing Palmer, 327 F.3d at 594-95). Plaintiffs have not presented any evidence of an explicit policy of the Defendants' to seize items not included within a search warrant.

1. Custom or Practice

If Plaintiffs lack sufficient evidence of a formal policy, they can still demonstrate municipal liability by demonstrating the existence of a widespread practice or custom. McNabola v. Chi. Transit Auth., 10 F.3d 501, 511 (7th Cir. 1993). " Monell authorizes the imposition of liability against a municipal entity 'for constitutional deprivations visited pursuant to governmental "custom" even though such custom has not received formal approval through the body's official decisionmaking channels.'" Id. (citing Monell, 436 U.S. at 690-91; Pembaur v. City of Cincinnati, 475 U.S. 469, 482 n. 10 (1986)). A custom has been defined as "a widespread practice that, although not codified in written law or regulation, is so permanent and well-settled that it has the force of law." Looper Maint. Serv., Inc. v. City of Indianapolis, 197 F.3d 908, 912 (7th Cir. 1999). Although the practice of unconstitutional conduct may lack official approval, it can still provide the basis of municipal liability if the plaintiff can demonstrate that the policymaker acquiesced to the practice. McNabola, 10 F.3d at 511.

Thus, Plaintiffs can demonstrate municipal liability "by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned, thus, in either event adopting, the misconduct of subordinate officers." Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000) (quotation omitted). Plaintiffs contend that "Officer Davies' actions imply that it is the custom and practice of the City of Milan Police Department not to follow the established procedure of the State of Indiana — but to create their own policy or practice." (Pls.' Resp. Milan at 8-9.) "When a plaintiff chooses to challenge a municipality's unconstitutional policy by establishing a widespread practice, proof of isolated acts of misconduct will not suffice; a series of violations must be presented." Palmer, 327 F.3d at 596 (two incidents of unconstitutional conduct too few to establish widespread practice) (citing Jackson, 66 F.3d at 152; Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)); see also Gable, 296 F.3d at 538 (three incidents too few to establish widespread custom); Garrison v. Burke, 165 F.3d 565, 572 (7th Cir. 1999) (plaintiff did not demonstrate city custom of ignoring complaints of sexual harassment where she was unaware of any incidents other than her own).

Even considering that the vehicles were seized from three separate locations — Milan, Batesville, and Rick's Automotive, the vehicles seized from Plaintiffs' premises were all seized as part of the simultaneous execution of the same police operation. The seizure of Medic 3 was accomplished by Officer Davis of the Greendale Police Department a few days later. Neither Officer Davis nor anyone else from the Greendale Police Department participated in the seizure of the other vehicles. Plaintiffs have not presented evidence of other incidents in which officers seized property that was outside the scope of the warrant or in which officers seized property without probable cause so that the policymaker(s) must have known what was going on and acquiesced by failing to stop the practice. Thus, they cannot establish a widespread custom or practice.

2. Municipal Policymaker

In some circumstances, § 1983 municipal liability can be imposed based on a single decision made by a municipal policymaker. Eversole v. Steele, 59 F.3d 710, 715 (7th Cir. 1995) (citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986)). But liability does not arise from every action taken by an employee with decisionmaking authority. Id.

"Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. . . . The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable."

Id. (quoting Pembaur, 475 U.S. at 481-83). Plaintiffs' municipal liability claims survive summary judgment only if they can show that an individual with municipal policymaking authority caused the Fourth Amendment violation. See Luck v. Rovenstine, 168 F.3d 323, 326 (7^th Cir. 1999).

The court examines state law to determine the identity of the official with final policymaking authority. McGreal v. Ostrov, 368 F.3d 657, 686 (7th Cir. 2004) (citations omitted); Eversole, 59 F.3d at 716 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)); accord Chortek v. City of Milwaukee, 356 F.3d 740, 749 (7th Cir. 2004) (citations omitted). "State law 'will always direct a court to some official or body that has the responsibility for making law or setting policy in a given area of a local government's business.'" Woods v. City of Michigan City, 940 F.2d 275, 279 (7th Cir. 1991) (quoting Praprotnik, 485 U.S. at 125) (holding that judges of Indiana county courts are judicial officers of the State judicial system). "'Authority to make municipal policy may be granted directly by legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law.'" Rasche, 336 F.3d at 600 (citing Pembaur, 475 U.S. at 483). "In examining state law to determine such authority, [the court is] to '[r]eview the relevant legal materials, including state and local positive law, as well as custom or usage having the force of law.'" Id. (quoting Kujawski v. Bd. of Comm'rs, 183 F.3d 734, 737 (7th Cir. 1999)). Section 1983 municipal liability is limited to "situations in which the official who commits the alleged violation of the plaintiff's rights has authority that is final in the special sense in that there is no higher authority." Id. (citing Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 469 (7th Cir. 2001)).

Jeff Davies is a deputy marshal of the Milan Police Department. Plaintiffs contend, in their response brief to the Batesville Defendants' motion, that a Deputy Marshal has the same powers as the chief of police under Indiana Code § 36-5-7-4. (Pls.' Response to Batesville Mot. at 16.) "[A] police chief in Indiana is the final policymaker for his municipal police department." Eversole, 59 F.3d at 716 (citing Ind. Code § 36-8-3-3(g); Ind. Code § 36-8-3.5-11). For towns that have not abolished the office of town marshal, § 36-5-7-4 provides:

The marshal is the chief police officer of the town and has the powers of other law enforcement officers in executing the orders of the legislative body and enforcing laws. The marshal or his deputy:

(1) shall serve all process directed to him by the town court or legislative body;

(2) shall arrest without process all persons who commit an offense within his view, take them before a court having jurisdiction, and detain them in custody until the cause of the arrest has been investigated;

(3) shall suppress breaches of the peace;

(4) may, if necessary, call the power of the town to his aid;

(5) may execute search warrants and arrest warrants; and

(6) may pursue and jail persons who commit an offense.

Ind. Code § 36-5-7-4. Thus, Chief Tom Holt is the official policymaker of the Milan Police Department. Plaintiffs have offered insufficient evidence to raise a reasonable inference that Marshal Holt caused the constitutional deprivation. Indiana Code § 36-5-7-6(a) states:

(a) The town legislative body shall by ordinance fix the number of deputy marshals. The town legislative body may by ordinance authorize the marshal to appoint deputy marshals. Deputy marshals have the powers and liabilities of the marshal in executing the orders of the legislative body or enforcing laws.

Ind. Code § 36-5-7-6(a).

"The discretion to make final decisions to carry out the policies of a local law enforcement entity does not equate to policymaking authority." Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995). In Gaskin v. Beier, the Indiana Court of Appeals held that "[t]he position of deputy marshal is similar to that of city police officer. The duties of both are similar." 622 N.E.2d 524, 529 (Ind.Ct.App. 1993) (citing Ind. Code § 36-5-7-4 (deputy marshals); Ind. Code § 36-8-3-6 (police officers)).

Policymaking authority may be delegated to another by an official who possesses it. Fiorenzo v. Nolan, 965 F.2d 348, 350 (7th Cir. 1992) (citing Pembaur, 475 U.S. at 483). The evidence does not raise a reasonable inference that Marshal Holt delegated his policymaking authority to Officer Davies. Moreover, the failure of a policymaker to investigate a subordinate officer's discretionary decisions does not establish that policymaking authority was delegated. See Praprotnik, 485 U.S. at 130. Therefore, the Town of Milan will be GRANTED summary judgment on the municipal liability claims.

The City of Batesville is likewise entitled to summary judgment on the municipal liability claims. Plaintiffs' assertion that Lt. Thielking was enforcing a municipal policy and practice when he read the warrants and oversaw the Batesville search fails to raise a triable issue. They have not offered any evidence to raise a reasonable inference that Lt. Thielking was a policymaker. The same analysis applies equally if it is assumed that Lt. Thielking seized or participated in the seizure of the Emergency Unit ALS 10, which was driven away by Officer Browning. Nor have Plaintiffs offered any such evidence with regard to Officer Browning, who seized the Emergency Unit ALS 10. So, too, the City of Greendale should be granted summary judgment. Plaintiffs have offered no evidence that any custom or policy or widespread practice of the City of Greendale was the moving force behind any violation of their rights. In fact, Plaintiffs have not raised a reasonable inference that any conduct of the City or Officer Davis caused any constitutional deprivation.

Similarly, Plaintiffs offer no evidence to raise a reasonable inference that a custom, policy or widespread practice of the Ripley County Sheriff's Department. They argue that Sheriff Dramann was involved in the search, but his presence is not enough to confer municipal liability. They have offered insufficient evidence to raise a triable issue that the Sheriff caused any constitutional deprivation. The City of Batesville and City of Greendale will be GRANTED summary judgment on the municipal liability claims. If the Ripley County Sheriff's Department were not being dismissed as a nonsuable entity, then the Department would be granted summary judgment on the municipal liability claims against it. Summary judgment will be GRANTED the Ripley County officers sued in their official capacities, however.

K. Qualified Immunity

The Defendants also seek qualified immunity for the individual officers. In order to determine if a defendant is entitled to qualified immunity, the court must determine whether the facts, taken in the light most favorable to Plaintiffs, demonstrate that Defendants violated Plaintiffs' constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). If a constitutional right was violated, the court must then ask whether the constitutional right was clearly established at the time Plaintiffs were allegedly injured. Id. "The relevant inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation the officer confronted." Payne v. Pauley, 337 F.3d 767, 775-76 (7th Cir. 2003) (citing Saucier, 533 U.S. at 202). Qualified immunity "leaves 'ample room for mistaken judgments' by police officers." Id. at 776 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

"Qualified immunity shields police officers from suit for damages if a reasonable officer could have believed the action to be lawful, in light of clearly established law and the information the officers possessed." Scott v. Glumac, 3 F.3d 163, 164 (7th Cir. 1993) (quotations omitted). The Seventh Circuit has said that "[f]requently the general rule, such as the right to be free from unreasonable seizures, is well-established; the crucial question is whether the law was clear in relation to the specific facts confronting the police officer." Scott, 3 F.3d at 164.

A reasonable officer could have interpreted the forfeiture statute to permit the seizure of the vehicles. In Scott v. Glumac, the Seventh Circuit, in determining whether officers were entitled to qualified immunity for seizing a vehicle under an Illinois forfeiture statute which provided for the forfeiture of vehicles used to transport prohibited substances, examined Illinois cases interpreting the statute. The court held that a reasonable officer could not have believed the plaintiff's car was subject to forfeiture under the statute because there was no evidence that the vehicle was being used to commit a drug offense. The officers had discovered the subject's possession of cocaine twenty-five minutes after he had left his vehicle. 3 F.3d at 165-67.

The Indiana Supreme Court, in Katner v. State, 655 N.E.2d 645 (Ind. 1995), states that in order for a vehicle to be forfeited under the statute, the State must demonstrate 1) that the vehicle was used to transport the prohibited substance, 2) for the purpose of committing or attempting to commit the underlying offense. Id. at 349. It was reasonable for the officers to believe that the vehicles which were seized from the Milan and Batesville premises were used to transport narcotics and, thus that there was an adequate nexus between the seized vehicles and the offenses of possession of a controlled substance. The court finds that a reasonable officer could have believed that the seized vehicles were subject to forfeiture under the statute. Unlike the officers in Scott, the officers in this case had reason to believe that the vehicles were being used to transport the prohibited drugs. Therefore, the court finds that Defendant officers in their individual capacities are entitled to qualified immunity as against the unreasonable search and seizure claims involving the vehicles seized on November 6 and 7. The Defendant officers also would also be shielded by qualified immunity as against the Plaintiffs' claims arising from the seizure of the documents, computers, computer equipment, medical supplies and equipment and other property taken on November 6 and 7.

Similarly, Officer Davis would be entitled to qualified immunity with respect to the seizure of Medic 3 and the scheduling book. Mr. Fermaglich had told him that he transported drugs from the Milan office to the Batesville office, admitted to keeping drugs in the response vehicles, and said the paramedic business was out of business. Officer Davis also learned during his interview with the Prathers that Mr. Fermaglich used drugs extensively and dealed drugs. On inspection of the ambulance, he observed bags and an orange case he believed might contain drugs or drug paraphernalia. Officer Davis could have reasonably believed the ambulance at Rick's was subject to forfeiture as well. He also could have reasonably believed that the scheduling book was within the scope of the warrant which authorized seizure of evidence related to the possession and use of prescription drugs.

L. Personal Involvement

The Greendale Defendants also seek summary judgment on the grounds that Officer Davis did not participate in any of the searches or seizures (other than seizure of Medic 3 and the scheduling book addressed above). Liability under § 1983 requires some personal involvement in the alleged constitutional deprivation. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). "Although direct participation is not necessary, there must at least be a showing that the [defendant] acquiesced in some demonstrable way in the alleged constitutional violation." Id. Plaintiffs point to no evidence which raises a reasonable inference that Officer Davis was personally involved in the searches and seizures at Milan and Batesville. Therefore, the Greendale Defendants will be GRANTED summary judgment on the § 1983 claims arising from those searches and seizures.

Similarly, Plaintiffs offer insufficient evidence to raise a reasonable inference of the personal involvement in the alleged constitutional deprivations of Chief Holt and Officer Skaggs of Milan, Officer Abel of Batesville, the Ripley Defendants and the State Defendants. Nor have Plaintiffs raised a triable issue as to whether these Defendants acquiesced in the constitutional violation. Thus, they will be GRANTED summary judgment on the § 1983 claims against them for this reason as well.

VII. STATE LAW CLAIMS

Though the court has the discretion to decline to exercise jurisdiction over supplemental state law claims when all federal claims are dismissed before trial as here, 28 U.S.C. § 1367(c)(3), in this case it is appropriate to decide the state law claims. This case has been pending for quite a while, discovery has been completed, and substantial judicial resources have been expended determining what material facts are not in dispute and ruling on the parties' motions, including earlier motions to dismiss, the motions to strike and the pending summary judgment motions. Given this court's familiarity with the record and the interrelation among the federal claims and state law claims it would be inefficient to dismiss the state law claims at this stage of the case. Also, there appears to be nothing novel or complex about the state laws that the court must apply here, and the outcome seems quite clear. Accordingly, the court proceeds to decide the supplemental state law claims. See Grove v. Eli Lilly Co., 193 F.3d 496, 501 (7^th Cir. 1999) (district court did not abuse discretion in retaining jurisdiction over supplemental state claims for reasons of judicial economy); Sullivan v. Conway, 157 F.3d 1092, 1095 (7^th Cir. 1998) (federal-state comity not furthered by sending "doomed litigation. . . . back to the state court to be dismissed there.")

The court is required to determine the state law issues presented as it believes the Indiana Supreme Court would under the circumstances. See Kutsugeras v. Avco Corp., 973 F.2d 1341, 1346 (7th Cir. 1992). "Under the principles of Erie v. Tompkins, a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state." Id. (quotation omitted).

A. Indiana Constitution

In Boczar v. Kingen, No. IP 99-0141-C-T/G, 2000 WL 1137713, at *24-25 (S.D. Ind. Mar. 9, 2000), this court held that there was no implied private right of action for damages under the Indiana Constitution. The court reasoned that it was unlikely that the Indiana Supreme Court would recognize an implied right under the Indiana Constitution because Indiana courts have been hesitant to recognize implied rights of action under statutory law and also because the framers of the Indiana Constitution would not have intended to create such a right because they would have believed sovereign immunity to bar such action. Id. Since Boczar, the courts in this district have refused to find that an implied right of action exists under the Indiana Constitution. See, e.g., Estate of O'Bryan v. Town of Sellersburg, No. 3:02CV00238-DFH-WGH, 2004 WL 1234215, at *21 (S.D. Ind. May 20, 2004); Malone v. Becher, No. NA 01-101-C H/H, 2003 WL 22080737, at *18-19 (S.D. Ind. Aug. 29, 2003). All Defendants therefore will be GRANTED summary judgment on all Plaintiffs' claims under the Indiana Constitution.¹⁴

14 As noted, Plaintiffs bring damages claims only.

B. Law Enforcement Immunity

Defendants argue that they are entitled to law enforcement immunity for any alleged tortious conduct, including Plaintiffs' claims of conversion. As stated earlier, this argument is somewhat at odds with the claim that Parratt/Hudson bars the procedural due process claims because of the availability of adequate state law remedies.

"The Indiana Tort Claims Act ('ITCA') allows suits against governmental entities for torts committed by their employees but grants immunity under the specific circumstances enumerated in Indiana Code section 34-13-3-3." Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 975 (Ind. 2001). "Pursuant to the Act, governmental entities and their employees are subject to liability for torts committed by them unless they can prove that one of the immunity provisions of the Act applies." City of Anderson v. Weatherford, 714 N.E.2d 181, 184 (Ind.Ct.App. 1999). Governmental immunity is narrowly construed against a plaintiff's right to file suit. Mangold, 756 N.E.2d at 975. "The party seeking immunity bears the burden of establishing that its conduct comes within the ITCA." Id. "Whether a governmental entity is immune from liability under the ITCA is a question of law for the court to decide." Id.

Defendants contend that they are entitled to law enforcement immunity under Indiana Code § 34-13-3-3(8), which states:

A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from . . . [t]he adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.

Ind. Code § 34-13-3-3(8). Resolution of the question of the applicability of the law enforcement immunity provision in this case turns on whether Defendants were engaging in "the enforcement of a law at the time of the alleged tortious acts." "[T]he scope of the term "enforcement" is limited to those activities in which a government entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof." Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind. 1994).

The Indiana Supreme Court has said:

[A]ctivity included within the term 'enforcement of a law' [is] limited to activity attendant to effecting the arrest of those who may have broken the law, and [is] not as broad as a law enforcement officer's employment obligations or requirements made on him by statute. Thus, unless the injuries for which a plaintiff seeks recovery arose out of the actual attempts to effect an arrest of one who may have broken the law, there is no immunity to be found in Section 3([8]).

City of Wakarusa v. Holderman, 582 N.E.2d 802, 803 (Ind. 1991) (citing Tittle v. Mahan, 582 N.E.2d 796 (Ind. 1991)). In Mullin, the Indiana Supreme Court held that a dispatcher who failed to send an ambulance to a fire was not enforcing the law. "[T]he City was neither compelling or attempting to compel obedience of another to its rule or regulation nor sanctioning or attempting to sanction a violation thereof and so was not engaged in enforcement within the meaning of Section" 3(8). 639 N.E.2d at 283. In City of Wakarusa, the Indiana Supreme Court held that an officer who rear-ended the plaintiff while looking in his rear-view mirror in order to spot license plate violations was not "enforcing the law" as provided under the statute. 582 N.E.2d at 803.

In the present case, the Defendant officers, unlike the officer in City of Anderson, were not attempting to effect the arrest of Plaintiffs when they engaged in the conduct allegedly causing constitutional injury, the seizure of the vehicles and other items pursuant to the warrants. Thus, law enforcement immunity under Indiana Code § 34-13-3-3(8) does not shield the officers from liability.

C. Indiana Code § 34-13-3-5

Defendants allege that Plaintiffs have failed to satisfy the requirements of Indiana Code § 34-13-3-5 and they should be granted summary judgment in their individual capacities as to Plaintiffs' state law claims. Under Indiana Code § 34-13-3-5(b), "[a] plaintiff may not maintain an action against a governmental employee personally if that employee was acting within the scope of his or her employment." Higgason v. State, 789 N.E.2d 22, 29 (Ind.Ct.App. 2003) (citing Ind. Code § 34-13-3-5(b)); see Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003) ("the amendment allows government employees acting in the scope of their employment the freedom to carry out their duties without fear of litigation").

The Defendant Officers acted within the scope of their employment when they seized the vehicles. "Scope of employment" in governmental immunity cases means "conduct of the same general nature as that authorized, or incidental to the conduct authorized." City of Anderson v. Davis, 743 N.E.2d 359, 364 n. 3 (Ind.Ct.App. 2001) (internal quotations omitted) (citing Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)). "An act is incidental to authorized conduct when it is subordinate to or pertinent to an act which the servant is employed to perform or when it is done to an appreciable extent to further his employer's business." Id. (internal quotations and citations omitted). "Even criminal acts may be considered as being within the scope of employment if 'the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope.'" Bushong, 790 N.E.2d at 473 (quoting Stropes v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989)); see Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993) (citing Gomez v. Adams, 462 N.E.2d 212 (Ind.Ct.App. 1984) ("security guard confiscated customer's identification; employer liable for conversion"); Tippecanoe Beverages v. S.A. El Aguila Brewing Co., 833 F.2d 633 (7th Cir. 1987) ("employee converted cashier's check — employer liable for the conversion")).

The officers were executing search warrants when they seized the vehicles and other items and were authorized to execute the warrants. Thus, the court finds that the state law tort claims of conversion against the officers in their individual capacities are barred by the Indiana Code § 34-13-3-5(b). However, because § 34-13-3-5(b) only governs immunity for officers in their individual capacities, the conversion claims against the municipal Defendants are not barred. Thus, the Defendants' Motions for Summary Judgment on Plaintiffs' claims of conversion against the individual officers will be GRANTED.

D. Conversion

The Defendants argue that Plaintiffs cannot establish the elements of criminal conversion because they believed the warrants to be valid and thus, did not have the necessary mens rea. The question of their intent regarding the validity of the warrants is not at issue, however. Instead, the issue is whether they were "aware of a high probability" that their exertion of control over the property was unauthorized. Manzon v. Stant Corp., 138 F. Supp. 2d 1110, 1115 (S.D. Ind. 2001).

"Conversion consists of two key elements. First, the claimant must prove that the control exercised over the property was unauthorized. Second, the claimant must show that the accused was aware of a high probability that this control was unauthorized." Id. Though the warrants did not authorize the seizure of vehicles, the seizure of the vehicles was authorized by Indiana's forfeiture statute and, in the case of Medic 3, Indiana's abandoned vehicle law. Even if the seizure of the vehicles was not authorized by the forfeiture statute or abandoned vehicle law, reasonable officers could have believed them subject to forfeiture and removal. Furthermore, Plaintiffs offer no evidence to suggest that the officers were aware of a high probability that the control over any of the vehicles was unauthorized. Thus, Plaintiffs' evidence is insufficient to create an issue of fact as to the elements of conversion. The Defendants will be GRANTED summary judgment on the conversion claims.

VIII. CONCLUSION

For the foregoing reasons, (1) the Milan Defendants' Motion to Strike (docket # 158) is DENIED; (2) the Batesville Defendants' Motion to Strike Surreply (docket # 174) is GRANTED in part and DENIED in part; (3) the parties' objections to Rule 56.1 statements of fact are SUSTAINED or OVERRULED as set forth above; (4) Plaintiffs' claims against the State of Indiana, the Indiana State Police, the Indiana Department of Natural Resources, and the official capacity claims against Supt. Carraway, and Officers Knapp, Day, Eaglin, LeBlanc, Lewis, and Todd are DISMISSED for lack of subject matter jurisdiction; (5) the motions for summary judgment of all Defendants will be GRANTED as to all other claims of all Plaintiffs. The Plaintiffs shall take nothing based on their claims in the Complaint.

An appropriate judgment will be duly entered.

FINAL JUDGMENT

In accordance with this court's rulings, it is now ORDERED, ADJUDGED, AND DECREED that:

(1) the Milan Police Department, the Batesville Police Department, the Greendale Police Department, and the Ripley County Sheriff's Department are all DISMISSED because they are not suable entities under Indiana law;

(2) the official capacity claims against Gary Skaggs, Jeffrey F. Davies and Tom Holt are DISMISSED as redundant of the claims against the Town of Milan;

(3) the official capacity claims against Jeffrey C. Thielking, David Abel and Ganathen Browning are DISMISSED as redundant of the claims against the City of Batesville;

(4) the official capacity claims against Kendle Davis are DISMISSED as redundant of the claims against the City of Greendale;

(5) all claims of all the Plaintiffs against the State of Indiana, the Indiana State Police, the Indiana Department of Natural Resources and the official capacity claims against Melvin Carraway, Steven L. Knapp, Greg Day, Dennis LeBlanc, Ed Lewis, Mike Todd, and Debbie Eaglin are DISMISSED for lack of subject matter jurisdiction; and

(6) all remaining Defendants are GRANTED summary judgment on all other claims of all Plaintiffs asserted in this action, the Plaintiffs shall take nothing based on their claims in the Complaint and Judgment is ENTERED in favor of all of the Defendants. Costs are awarded to the Defendants and against the Plaintiffs.