DOCKET
last updated: 10/16/2024
* = New case since last report
Freedom of Speech and Association
*Akou v. Trustees of Indiana University (U.S. Dist. Ct. – So. Dist of Ind.) [Filed 8/24]
This is a challenge to the new policy at Indiana University that prohibits all expressive activities after 11:00 pm. and before 6:00 a.m. A preliminary injunction has been sought.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
Bilbrey v. Sproles (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 7/23)
After posting a critical comment, Kristopher Bilbrey was “blocked” from a Facebook page operated by Henry County Sheriff John Sproles. Although the page was originally created as a “candidate page,” since Sheriff Sproles took office in January of 2023 he has routinely utilized the page to post official governmental communications. The lawsuit alleges that the blocking of Mr. Bilbrey violates his First Amendment rights. Both parties have sought summary judgment, and those motions are pending.
ATTORNEY(S): Gavin M. Rose
*Carr v. Trustees of Purdue University
*McDonald v. Trustees of Indiana University – (U.S. Dist. Ct. – So. Dist. of Ind. [Filed 9/24]
These 2 cases on behalf of professors at the above institutions, challenges Senate Enrolled Act 202 that constrains the academic freedom of university professors. An earlier case was dismissed as not ripe, and these two cases have recently been filed. A preliminary injunction is being pursued.
ATTORNEY(S): Stevie J. Pactor, Kenneth J. Falk, Gavin M. Rose
*EDCO Environmental Services, Inc. v. Lammons (Ind. Ct. App.) [Appeal Filed 8/24]
Judy Lammons purchased and had a furnace installed by EDCO Environmental Services, Inc. She immediately had significant issues with the furnace that, she later discovered, would have been covered by a warranty had the furnace been “new” at the time that it was installed as she had been informed. Instead, while it had not previously been installed or operated, the furnace had been shipped from the factory eleven years before it was installed (and apparently sat in a warehouse during that period) and her warranty had therefore expired. Additionally, she learned in investigating the matter that, while a permit was not legally necessary, had EDCO obtained a permit before installing the furnace, the issues she experienced could have been avoided. This experience led her to ask at a public city council meeting, “What will the City of Crown Point do to protect its citizens from unscrupulous licensed contractors?” As a result, EDCO sued her for defamation and, while she was represented by private counsel, the trial court held that her reference to EDCO as “unscrupulous” was, in fact, defamatory and awarded thousands of dollars in damages against her. Given the clear First Amendment issues, we entered our appearance and have appealed this decision to the Indiana Court of Appeals.
ATTORNEY(S): Gavin M. Rose; Stevie J. Pactor
Evans v. Commissioner, Indiana Dep’t of Corr. (U.S. Dist Ct. – So. Dist. of Ind.) [Filed 12/23]
DOC policy requires that persons in photographs that are sent to prisoners, either in the mail or electronically, be dressed in a manner that meets the dress code requirements imposed on in-persons visitors. So photos of persons in tank tops or children in pajamas are rejected. The complaint alleges that this violates the First Amendment. The matter has been successfully settled and will be closed.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
*Hopper v. Indianapolis (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 7/24]
The plaintiff works for the Indianapolis Fire Department and was disciplined for a social media post that was critical of the Indianapolis Emergency Medical Services, which is operated by the Health and Hospital Corporation, a separate government entity. Injunctive and declaratory relief is sought.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Nicodemus v. City of South Bend, Ind. (U.S. Dist. Ct. – No. Dist. of Ind.) [Filed 8/23]
This is a First Amendment challenge to the new statute, Ind. Code § 35-44.1-2-14, that makes it a crime to come within 25 feet of a law enforcement officer after the officer has ordered the person to stop. The law contains no requirement that the officer have any reason to issue such an order and contains no standards. The district court found that the statute was constitutional, and the matter has been appealed to the Seventh Circuit where it was recently argued and we are awaiting a decision.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
*Patoka Valley AIDS Community Action Group, Inc. v. City of Loogootee (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 6/24]
This challenged the denial of the ability of plaintiff to conduct a Pride festival in Loogootee and the constitutionality of a hastily drawn up ordinance to regulate a public events ordinance. Although the festival was eventually allowed to occur the case is continuing.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Smiley v. Jenner (U.S. Dist. Ct. – So. Dist. of Indiana; 7th Circuit Court of Appeals) [Filed 6/23]
This is a challenge to a portion of House Enrolled Act 1608, effective July 1, 2023, that prohibits schools and teachers from engaging in “instruction” on “human sexuality” to students who are pre-K through third grade. Our lawsuit, brought on behalf of a teacher, argues that the law is both unconstitutionally vague and violative of the First Amendment. The Court denied our request for a preliminary injunction and the matter is being appealed to the 7th Circuit and was argued in February of 2024. We are awaiting a decision.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
Sweeney v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Indiana; U.S. Court of Appeals for the Seventh Circuit [Filed 10/17]
This case challenges a new policy of the DOC that requires that all incoming non-legal correspondence be in plain white envelopes and requires that the correspondence “be on originally purchased, plain white, lined paper (no photocopies).” The case alleges that this violates the First Amendment. The Court certified the case as a class action and entered a preliminary injunction for the plaintiffs. The DOC dismissed its appeal of the preliminary injunction, and the reached a settlement. The district court found that the settlement was fair, reasonable, and adequate as required of class actions. The case remains open for monitoring.
ATTORNEY(S): Kenneth J. Falk
*Wirtshafter v. Trustees of Indiana University (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 5/24]
This challenges the constitutionality of the no-trespass orders issued to the plaintiffs following their participating in demonstration on Dunn Meadow on the IU Bloomington campus in April that prohibited the plaintiff from returning to campus to exercise their First amendment rights. Damages are sought.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
LGBTQ ISSUES
A.C. v. Metropolitan School District of Martinsville et al (U.S. Dist. Ct. – So. Dist. Of Ind., Seventh Circuit Court of Appeals) [12/21]
The plaintiff is a transgender boy who, when we filed the case, was attending a middle school within the Metropolitan School District of Martinsville. He has been diagnosed with and receives treatment for gender dysphoria. He wishes to use male facilities in the school He has been required to use either the girls’ restrooms or the single-person restroom in the nurse’s office. The district court granted a preliminary injunction and the school district has appealed to the Seventh Circuit. This appeal has been consolidated with the appeal of the B.E. case. The Seventh Circuit issued a ruling for us in August and the school filed for certiorari in the U.S. Supreme Court, which the Supreme Court denied in January. The matter has now been sent back to the district court for further proceedings. The plaintiff is now a student at Martinsville High School. It is set for trial on March although a motion for partial summary judgment has been filed by the plaintiff.
ATTORNEYS: Kenneth J. Falk, Stevie J. Pactor, Megan Stuart from Indiana Legal Services
BE & SE v. Vigo County School Corp. et al (U.S. Dist. Ct. – So. Dist. Of Ind.) [11/21]
The plaintiffs are transgender boys who, at the time of the filing of the case, were freshmen who attend Terre Haute North Vigo High School. They have been diagnosed with gender dysphoria, prescribed hormones, have legally changed their names, and have legally changed the gender markers on their birth certificates. Nonetheless, the school will not allow them to use male restrooms or locker rooms, and requires that they either use the girls’ restrooms or the only single-occupancy restroom in the school, which is located in the nurse’s office. Indiana Legal Services is co-counseling the case. The district court granted a preliminary injunction and the matter was appealed and has been joined with the A.C. case. The Seventh Circuit issued a joint ruling in our favor in August. The school system did not seek certiorari. The case was sent back to the district court and has been settled and will be closed.
ATTORNEYS: Kenneth J. Falk, Stevie J. Pactor; Megan Stuart and Kathleen Bensberg from Indiana Legal Services
Cordellioné v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Ind.) [8/23]
This case challenges the new statute, Ind. Code § 11-10-3-3.5(a) [eff. 7/1/23], that bans transgender prisoners within the Indiana Department of Correction from receiving gender-affirming surgery. The district court granted our motion for preliminary injunction on September 17, 2024, and ordered that the DOC take steps to provide the plaintiff with surgery at the earliest opportunity. We assume that the DOC will file an appeal, and the Notice of Appeal is due by October 17.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
Allison v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Ind.) [4/24]
This is another challenge by a transgender prisoner against the statutory ban on the Indiana Department of Correction from receiving gender-affirming surgery. With the preliminary injunction in the Cordellioné case, this case will move forward.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
Wallace v. Commissioner, Indiana Department of Correction (U.S. Dist. Ct. – So. Dist. of Ind.) [4/24]
Yet another challenge by a transgender prisoner against the statutory ban on the Indiana Department of Correction from receiving gender-affirming surgery. With the preliminary injunction in the Cordellioné case, this case will move forward.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
K.C. v. Individual Members of the Medical Licensing Board (U.S. Dist. Ct.—So. Dist. of Ind) [Filed 4/23]
This is the challenge to the transgender health ban (S.E.A. 480). The district court has entered a preliminary injunction preventing the law from going into effect. The State has appealed the decision and the case was argued in February in the 7th Circuit. Although the panel has not yet issued a decision, shortly after the argument it issued a stay of the district court’s injunction, putting the law back into effect. The State had not asked for this stay, the panel did it on is own, which is extremely unusual. This means the law is in effect and gender-affirming hormones can no longer be provided to minors. Additionally, the aiding and abetting provision of the law, also back in effect, prohibits doctors and other practitioners from referring their patients for care out-of-state or even discussing their former patients with out-of-state practitioner seeking to assist the youth. The case is not moving forward as we await a decision from the Seventh Circuit. However, the court may not rule until after the Supreme Court decides a similar case from Tennessee this term.
ATTORNEYS: Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor
From National ACLU: Chase Strangio, Harper Seldin
Miscellaneous
St-Hilaire v. Commissioner, Indiana BMV [U.S. Dist. Ct. – So. Dist. of Ind.] [Filed 8/23]
When the federal government decides that “significant public benefit or urgent humanitarian reasons” justify allowing the entry into the United States of a noncitizen, it may grant entry through a program known as “humanitarian parole.” An individual on humanitarian parole does not obtain a formal immigration status but is allowed entry into the United States and may obtain employment authorization to work here. In recent years, the United States has authorized the entry of numerous Ukrainian national, Cuban nationals, Haitian nationals, Nicaraguan nationals, and Venezuelan nationals under this program due to the conditions in their country. During the 2023 legislative session, the Indiana General Assembly extended the ability to obtain an Indiana driver’s license or identification card (or to register or title vehicles) to certain persons on humanitarian parole—but only if they are from Ukraine. We represent five Haitian nationals who would greatly benefit from the ability to obtain a driver’s license or identification card but who cannot do so because they are from Haiti rather than Ukraine. The complaint alleges that this constitutes national-origin discrimination in violation of equal protection and Title VI, and that Indiana’s classification of noncitizens is preempted by federal law. We were awarded a preliminary injunction against the discriminatory law in January, and the State has appealed that injunction. In the meantime, the Indiana General Assembly amended the law to provide that no parolees, including Ukrainians, may obtain licenses. We have asked that the State’s appeal be sent back to the district court and are evaluating our options. The matter is pending.
ATTORNEY(S): Gavin M. Rose, Stevie J. Pactor, Kenneth J. Falk and attorneys from the National Immigration Law Center
Prisoners’ Rights
Miami “dark cell” cases (U.S. Dist. Ct. – No. Dist. of Ind.) [Filed at different times in 2021]
These cases involve prisoners who were confined in restrictive housing (segregation) cells at Miami Correctional Facility that did not have working lights and where the windows were covered with sheet metal. Many of the cells had live wires hanging from where the fixtures had been and in some of the cases prisoners were shocked by the wires. We are seeking compensatory and punitive damages. The first-filed case was Blanchard, followed by those also listed below, all in the Northern District of Indiana. The cases are pending.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
• Anderson v. Hyatte (Filed 7/21)
• Blanchard v. Hyatte (Filed 3/21)
• Bennett v. Hyatte (Filed 7/21)
• Boes v. Hyatte (Filed 9/21)
• Brisker v. Hyatte (Filed 11/21)
• Campbell v. Hyatte (Filed 12/21)
• Carter, T. v. Hyatte (Filed 9/21)
• Carter, C. v. Hyatte (Filed 11/21)
• Duckworth v. Hyatte (Filed 10/21)
• Hackner v. Hyatte (Filed 8/21)
• Jackson v. Hyatte (Filed 1/22)
• Lukes v. Hyatte (Filed 8/21)
• Calvin Lyons v. Hyatte (Filed 8/21)
• Charles Lyons v. Hyatte (Filed 7/21)
• Maxwell v. Hyatte (Filed 7/21)
• Mitchell v. Hyatte (filed 9/22)**
• Nur v. Hyatte (Filed 10/21)
• O’Neal v. Hyatte (Filed 8/21)
• Owen v. Hyatte (Filed 10/21)
• Parish v. Hyatte (Filed 7/21)
• Priscal v. Hyatte (Filed 3/22)
• Pryor v. Hyatte (filed 7/22)**
• Reed v. Hyatte (Filed 7/21)
• Rodgers v. Hyatte (Filed 7/21)
• Rollins v. Hyatte (Filed 10/21)
• Sapp v. Hyatte (Filed 10/21)
• Sullivan v. Hyatte (Filed 8/21)
• Thompson v. Hyatte (Filed 1/22)
• Wagner v. Hyatte (Filed 7/21)
• Werden v. Hyatte (Filed 11/21)
• Winners v. Hyatte (Filed 2/22)
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Copeland v. Wabash County (U.S. Dist. Ct. – No. Dist.) (Filed 2/20)
This is a challenge to the conditions of the Wabash County Jail. A class was certified and the parties have submitted an agreement to the Court containing a schedule that ends with the building of a new Jail. The Court concluded that the private settlement agreement was fair, reasonable, and adequate. The new Jail will be occupied in the near future.
ATTORNEY(S): Stevie J. Pactor, Kenneth J. Falk
Gee v. Warden, New Castle Correctional Facility (U.S. Dist. Ct. -So. Dist. of Ind.) (12/23)
The plaintiff is a prisoner who is alleging a failure to attend to his mental health needs because of chronic staffing deficiencies. He claims a violation of the 8th Amendment. The matter is pending.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Huerta v. Ewing (U.S. Dist. Ct.—So. Dist. of Indiana) [ACLU appointed 4/18]
This is a class action lawsuit challenging conditions at the Vigo County Jail, Kenneth Falk has recently been appointed to represent a class consisting of all the prisoners in the Jail and summary judgment has been filed. The district court has entered summary judgment for the prisoners, finding that the conditions in the Jail violate the Eighth and Fourteenth Amendments. The Court has scheduled frequently hearings to monitor progress towards building a new jail. The new jail is being built and has opened. However, population issues persist and the Court is keeping the case open.
ATTORNEY(S): Kenneth J. Falk
Johnson v. Klyaic et al., (U.S. Dist. Ct. — So. Dist. of Ind.) [Filed 6/23]
The plaintiff suffers from severe uterine prolapse, which causes her uterus to at times distend through the opening of her vagina, causing her bleeding and pain. On one occasion when this happened, and she requested to be seen by medical staff, the defendant nurse instructed the correctional officers to look at Ms. Johnson’s prolapsed uterus themselves before permitting Ms. Johnson to come to the infirmary. Those officers required Ms. Johnson to strip naked in the shower area and expose her vagina to them. They then required her to physically manipulate her labia, which were covered in blood, to enable them to get a better view of the prolapsed uterus. She raises claims under the Fourth and Eighth Amendments to the United States Constitution, state law torts.
ATTORNEYS: Kenneth J. Falk, Stevie J. Pactor
Kadamovas v. Director, Bureau of Prisons et al. (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 1/2023]
This is a putative class action filed on behalf of the inmates being held in the federal death row at the United States Penitentiary at Terre Haute. It alleges that the inmates are being held in extreme isolation in a manner that violates the Eighth Amendment. The case is being co-counseled with lawyers from Faegre Drinker Biddle & Reath LLP. Injunctive relief is sought on behalf of plaintiff and a putative class. The court recently denied a motion to dismiss the case and our motion for class certification is awaiting a decision.
ATTORNEYS: Kenneth J. Falk, Gavin M. Rose, Stevie J. Pactor, co-counsel from Faegre Drinker Biddle & Reath
Morris v. Sheriff of Allen County (U.S. Dist. Ct. – No. Dist. of Ind.) [Filed 1/20]
This is a challenge to the conditions at the Allen County Jail. A class has been certified, and we have filed a motion for partial summary judgment that the Court held a hearing on just prior to the holidays. The Court recently issued summary judgment in favor of the prisoners, finding that condition in the Jail are unconstitutional, and ordering the defendants to submit a plan as to the short and long-term steps they will take to remedy the constitutional deficiencies that the Court found. The Court has scheduled status conferences to continue to monitor the matter.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor, Samuel Bolinger (cooperating counsel)
Richardson v. Monroe County Sheriff (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 2/08]
This is a case challenging the conditions at the Monroe County Jail. The case has been settled and is open for monitoring.
ATTORNEY(S): Kenneth J. Falk
Smith v. Armstrong (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 1/24]
While in the Henry County Jail the plaintiff was required to strip and remove her used tampon in front of the security camera in her cell. Images of the plaintiff’s genitals were taken and were shared by staff with other staff members and prisoners. Staff harassed plaintiff about the appearance of her genitals. This amounts to punishment in violation of due process and also represent Fourth Amendment violations. The case is pending.
ATTORNEY(S): Stevie J. Pactor, Kenneth J. Falk
*Stacy v. Delaware County Sheriff (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 4/24]
The Delaware County Sheriff prohibits inmates of the jail from receiving literature through the mail even when that literature is sent from established publishers or distributors (such as Amazon.com). We filed suit alleging that this policy violates the First Amendment. The district court recent certified the case as a class action, and the case is proceeding.
ATTORNEY(S): Gavin M. Rose
Stilwell v. Sheriff of Gibson Co. (U.S. Dist. Ct. – So. Dist. of Indiana) [filed 2/19]
This case challenges the conditions of confinement at the Gibson County Jail. The case is proceeding. The parties have stipulated to the case proceeding as a class action. A settlement has been reached in this matter that will result in the construction of a new Jail. The matter remains open for monitoring.
ATTORNEY(S): Stevie J. Pactor, Kenneth J. Falk
Warren v. Howard County Sheriff (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 1/24]
This is a challenge to the overcrowded and unconstitutional conditions at the Howard County Jail. A class has been certified and the case is moving forward.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Religious Freedoms and Establishment Clause
Anonymous Plaintiffs v. The Individual Members of the Medical Licensing Board of Indiana (Marion Superior Court) (Indiana Court of Appeals) [filed 9.22]
This is a challenge to Indiana’s new abortion law, SEA 1(ss), based on a violation of Indiana’s Religious Freedom Restoration Act. The trial court has granted a preliminary injunction to the plaintiffs and class certification, both of which the State appealed. The state requested direct transfer to the Supreme Court, bypassing the Court of Appeals, and that motion was denied. The Indiana Court of Appeals affirmed the trial court’s decision in almost all respects in a lengthy decision issued on April 24, 2024. The Court of Appeals affirmed the certification of the class and found that plaintiffs were entitled to a preliminary injunction, but remanded the case to the trial court so it could make clear that the injunction would only apply to plaintiffs obtaining abortions for their sincere religious beliefs. The State sought transfer to the Indiana Supreme Court in May and we are awaiting a determination by the Supreme Court as to whether it will accept the case.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor, Gavin M. Rose
*Levels v. Commissioner of the DOC (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 4/24]
Reko Levels is a Muslim inmate who twice sought to be provided with a halal diet by the DOC. In each case, this request was denied as a result of isolated non-halal purchases from commissary—even though he was not receiving a halal diet through the normal kitchen and even though he did not even consume one of the items he purchased. He initially filed suit against the DOC pro se. We entered our appearance and amended the complaint to allege that these actions violate the Religious Land Use and Institutionalized Persons Act as well as the First Amendment. We have recently reached a settlement that, among other things, will allow our client to receive a diet that meets his religious needs.
ATTORNEY(S): Gavin M. Rose
Reproductive Rights
Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health (U.S. Dist. Ct – So. Dist. of Ind., Seventh Circuit Court of Appeals, United States Supreme Court) [Filed 5/17]
This case challenges portions of Senate Enrolled Act No. 404 that amends Indiana law to:
1) provide that in a bypass proceeding where a minor can seek judicial permission to obtain an abortion without parental consent the court can order that notice be provided to the parent; requires physicians to execute an affidavit where a parent consents to a minor’s abortion after receiving a photo id and other unspecified evidence that “a reasonable person under similar circumstances would rely on the information provided . . . as sufficient evidence of [the] identity and relationship” between the minor and parent, and (3) prohibit persons from aiding or assisting an unemancipated minor from seeking an abortion from obtaining one without satisfying the consent or bypass requirements under Indiana law. This last provision would prohibit PPINK from advising minors that they could obtain abortions out of state. A preliminary injunction was granted, and the State is appealing the portion of the preliminary injunction prohibiting it from enforcing the parental-notice requirement. The Seventh Circuit affirmed by a 2-1 decision and rehearing en banc was denied. The State sought review in the United States Supreme Court. On July 2, 2020, the Supreme Court granted certiorari and remanded the case back to the Seventh Circuit for reconsideration in light of June Medical Services. The Seventh Circuit again affirmed the District Court and the State again sought review in the U.S. Supreme Court. The Supreme Court reversed in light of Dobbs and sent the case back. Following Dobbs the State moved to vacate the preliminary injunction and we have indicated that we have no grounds to oppose the motion. Dobbs doomed the first argument concerning the notice issue and changes to Indiana’s abortion laws meant that we could no longer pursue the vagueness claims concerning the identification requirements, but we continued to pursue the First Amendment issue. The district court entered summary judgment in our favor on this issue and enjoined the enforcement of the statute. The State has appealed to the Seventh Circuit.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose, and attorneys from the national ACLU and Planned Parenthood.
Planned Parenthood Great Northwest, etc. v. Members of the Medical Licensing Board of Indiana (Monroe Circuit Court; Indiana Supreme Court) [Filed 8/22)
This is the challenge to Indiana’s new abortion law (S.E.A.1[ss]) based on a violation of the Indiana Constitution. The trial court granted a preliminary injunction. The State appealed and the Supreme Court reversed the preliminary injunction on June 30, 2023. However, the reversal leaves open the question of whether the very narrow health care exception in S.E.A. 1 [ss] satisfies the limited state-constitutional right that the Supreme Court recognized. A new injunction has been sought on the grounds that the above-noted health exception is unconstitutionally narrow. After a three day trial in May, the trial court issued a decision on September 11, 2024 that upheld the constitutionality of the statute. The decision is being appealed to the Indiana Court of Appeals.
ATTORNEY(S): Kenneth Falk, Gavin Rose, Stevie Pactor, and attorneys from Wilmer Hale, national Planned Parenthood, and the Lawyering Project
Rights of Those with Disabilities and Medicaid
Blade v. City of Richmond (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 7/04]
This case challenges the lack of accessible sidewalks in Richmond, Indiana. A settlement has been reached and has been approved by the Court. It is open for monitoring.
ATTORNEY(S): Kenneth J. Falk
Cantrell v. Town of Liberty (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 2/02]
This is a challenge under the ADA to the fact that the Town of Liberty does not have accessible sidewalks. The case has been settled in plaintiff’s favor. It remains open for monitoring as the sidewalks are made accessible.
ATTORNEY(S): Kenneth J. Falk
Culvahouse v. City of LaPorte (U.S. Dist. Ct.—No. Dist. of Indiana) [Filed 5/06]
This is a class action challenge to the failure of LaPorte to have sidewalks that are accessible to disabled persons as required by the Americans with Disabilities Act. Both sides have sought summary judgment. The trial court has entered partial summary judgment in plaintiffs’ favor. The parties have entered into a settlement of all remaining issues and the case is open for monitoring.
ATTORNEY(S): Kenneth J. Falk
Ellison v. United States Postal Service (U.S. Dist. Ct. – So. Dist. of Ind.; Seventh Circuit Court of Appeals) [Filed 3/20]
The case challenges the fact that the Shelbyville post office is not accessible to the client, a person with a physical disability. The district court ruled in favor of the Postal Service and we have appealed the matter to the Seventh Circuit. The Seventh Circuit issued a decision in our favor and the Postal Service has agreed to build the ramp. The case will be kept open until the ramp is built and then will be dismissed.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
*Ind. Protection & Advocacy Servs. Comm’n v. Ind. Family & Soc. Servs. Admin. (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 5/24]
The Health and Wellness Medicaid Waiver Program is a Medicaid home- and community-based waiver program approved by the federal government. Through this program, eligible persons with disabilities who might otherwise require institutionalization are able to receive services necessary to ensure that they may live in a community environment. For years, the Indiana Family and Social Services Administration, which operates the program, has allowed the parents or other “legally responsible individuals” of waiver enrollees to be reimbursed for providing personal care services to enrollees. This has been absolutely vital for many persons with significant medical needs because home nursing is not universally available and because family members of persons with disabilities have often been trained to attend to medical needs in a way that other potential caretakers have not been. These needs might include G-tube feedings, seizure monitoring and responses, medication administration, and a wide variety of other issues (in addition to, of course, assistance with the activities of daily living). Effective July 1, 2024, FSSA ceased allowing these family members to continue providing these services.
Our clients are the Indiana Protection and Advocacy Services Administration (which has authority under federal law to pursue claims on behalf of persons with disabilities) as well as two medically fragile children with significant medical needs. We have alleged that FSSA’s changes place enrollees at significant risk of institutionalization and therefore violate the “integration mandate” of the Americans with Disabilities Act and the Rehabilitation Act. We have further alleged that FSSA’s failure to ensure the availability of home nursing violates Medicaid law. The district court issued a preliminary injunction in favor of the two individual plaintiffs only, although it did not grant us all the relief we sought. Both parties have appealed and the district court issued a “stay” awarding us the relief we sought at least during the pendency of the appeal. The matter is proceeding before both the Seventh Circuit and the district court.
ATTORNEY(S): Gavin M. Rose, Stevie J. Pactor, attorneys from Indiana Disability Rights
Inspiration Ministries, Inc. v. State of Indiana (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 11/23]
Plaintiff has a number of group homes that are identical in structure to other single-family homes. However, defendant is imposing onerous regulatory requirements that are not required of single-family homes occupied by “regular” families. The case alleges that this violates the Fair Housing Act Amendments, the Rehabilitation Act, and the Americans with Disabilities Act. Injunctive relief is sought.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Behind the Wire Ministries, Inc. v. State of Indiana (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 1/24]
This organization has 2 group homes that like the case immediately above, are not being treated as single-family homes, even though they would be if a nuclear family lived there. The case alleges that this violates the Fair Housing Act Amendments, the Rehabilitation Act, and the Americans with Disabilities Act. Injunctive relief is sought.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Next Step Recovery Home, Inc. v. State of Indiana (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 2/24]
This organization has 1 group home that is being discriminated against in the same way as the above cases. A preliminary injunction hearing was held on July 30 and we are awaiting a decision.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Firebrand Ministries, Inc. v. State of Indiana (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 4/24]
This organization also has 1 group home that is being discriminated against in the same way as the above cases. Injunctive relief is sought.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
*Harmony Home of Huntington v. State of Indiana (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 7/24]
Like the cases above it, this case challenges the fact that the State is subjecting a group home for persons with disabilities—alcohol and substance abuse disorders—to more onerous standards than it would if the identical structure were occupied by nuclear families. Injunctive relief is sought. The matter is pending.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
*Place of Grace v. State of Indiana (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 7/24]
Like the cases above it, this case challenges the fact that the State is subjecting a group home for persons with disabilities—alcohol and substance abuse disorders—to more onerous standards than it would if the identical structure were occupied by nuclear families. This case seeks damages as well as injunctive relief. The matter is pending.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
Meeker v. Kosciusko Community Fair, Inc. (U.S. Dist. Ct. – No. Dist. of Indiana) [Filed 9/14]
The client, who is a person with disabilities, challenges the lack of accessibility of the Kosciusko County Community Fair fairgrounds. A settlement has been filed and has been approved. The case remains open for monitoring.
ATTORNEY(S): Kenneth J. Falk
Targett v. City of Brazil (U.S. Dist. Ct.- So. Dist. of Indiana) [Filed 8/00]
This case challenges the failure of the City of Brazil to maintain accessible sidewalks in violation of the ADA. Discovery is being done. A settlement was approved. Contempt was filed since it is alleged the City has not complied with the settlement. We entered a new settlement which the City did not comply with and we again sought contempt. The matter was resolved, and we are monitoring.
ATTORNEY(S): Kenneth J. Falk
Search and Seizure Issues
*Cassel v. Givens (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 8/24]
During a traffic stop in Terre Haute for a minor traffic infraction, Officer Hunter Givens (then of ISU’s Police Department) initially prolonged the stop in order to conduct an investigation into Ms. Cassel’s fiancé, who was not even at the scene and to summon Officer Carl Wassberg (of the West Terre Haute Police Department to the scene) and his drug-detecting dog. Without cause, both officers then ordered our client to exit her vehicle so that the dog could conduct an open-air sniff of the vehicle. When she declined to exit the vehicle, the officers physically removed her from the vehicle. They then falsely reported that the drug alerted to the presence of illegal narcotics and conducted a nonconsensual search of the interior of her vehicle. While this search did not reveal anything illegal, our client was arrested for resisting arrest when she was forcibly removed from her vehicle. These criminal charges were subsequently dismissed. We have filed suit alleging that both officers violated the Fourth Amendment. This action is pending.
ATTORNEY(S): Gavin M. Rose
Carpenter v. City of Clarksville (U.S. Dist. Ct. – So. Dist. of Ind.) [filed 3/23]
The Town of Clarksville has enacted an ordinance that requires the routine inspection of all rental properties within the Town by the Town’s building commissioner, but does so without requiring a search warrant or similar judicial or quasi-judicial order authorizing the entry or inspection. This case alleges that the ordinance is unconstitutional as violating the Fourth Amendment. We have sought class certification.
ATTORNEY(S): Gavin M. Rose
Felthoff v. Sliger (U.S. Dist. Ct. – No. Dist. of Ind. ) [filed 4/24]
The plaintiff was stopped without cause. He had hydrocodone pills for which he had a prescription and had a firearm for which he had a permit. Nevertheless, he was arrested for possession of a controlled substance with a felony gun enhancement. Criminal charges have never been initiated and his firearm and concealed carry permit have still not been returned. The case alleges that this violates the Fourth Amendment.
ATTORNEY(S): Gavin M. Rose
K.S. v. Milliman (U.S. Dist. Ct. – No. Dist. of Ind.) (Filed 1/24)
K.S. is a 7th grader who was subject to a search when a false report was made that she had a gun, made apparently by a student who had falsely reported in the past. In front of a school nurse and male administrator she was forced to lift up her shirt to show her waist and was forced to lift up her outer garments and pull the bottom of her bra away from her body. The case alleges that this violates the Fourth Amendment.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
*Singleton v. Starke County Deputy Sheriff McKee (U.S. Dist. Ct. – No. Dist. of Ind.) [7/24]
The plaintiff was stopped without cause and placed in handcuffs because of his “attitude.” He was eventually released without receiving a ticket. Damages are sought.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
S.H. v. Milleman (U.S. Dist. Ct. – No. Dist. of Ind.) (Filed 1/24)
S.H. is a sophomore who on two occasions was subject to intrusive searches by a male school administrator and a female school nurse to look for a vape. The searches involved, among other things, the student being required to pull out the front of her bra and expose part of her breasts. The case alleges a Fourth Amendment violation.
ATTORNEY(S): Kenneth J. Falk, Stevie J. Pactor
*Stegemoller v. Albert (U.S. Dist. Ct.—So. Dist. of Indiana) [Filed 8/24]
During a late-night altercation between one of his friends and a security officer outside an Indianapolis bar, our client attempted to act as peacemaker and, while so doing, noticed a nearby police officer (Keith Albert) declining to intervene. He therefore criticized the police officer by asking if he needed to get his friends from the Indiana State Police to do the police officer’s job for him. This statement ultimately led to our client being arrested, purportedly for failing to retreat 25 feet away from a police officer when he was asked to do so, even though he promptly retreated to a distance that he estimated to be 25 feet and that was immediately adjacent to other onlookers. Subsequent criminal charges against him were dismissed once a deputy prosecutor viewed body-cam footage of the incident. We filed suit alleging that our client’s arrest by two officers violated the Fourth Amendment. The defendants have moved to dismiss the case on procedural grounds, and that motion is pending.
ATTORNEY(S): Gavin M. Rose
Watson v. Binford (U.S. Dist. Ct. – So. Dist. of Ind.) (Filed 4/24)
Plaintiff was arrested for disorderly conduct after swearing at a person who had hit his vehicle. The person was sitting in her car and plaintiff was more than 20 feet way. The charges were dismissed. His speech was protected by the First Amendment and his arrest violated the Fourth Amendment.
ATTORNEY(S): Stevie J. Pactor, Kenneth J. Falk
