Simon v. Muschell et al

Filing 91

OPINION AND ORDER: GRANTING 71 MOTION for Judgment on the Pleadings by Defendants Special Agent Paul Muschell, Alvin Patton, Special Agent Linda Porter. Signed by Judge William C Lee on 9/13/2017. Associated Cases: 1:09-cv-00301-WCL-APR, 1:10-cv-00058-WCL-APR(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JAMES A. SIMON, et al.,

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Plaintiffs,
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v.
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SPECIAL AGENT PAUL MUSCHELL, et al., )
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Defendants.
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JAMES A. SIMON, et al.
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Plaintiffs,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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)

CIVIL NO. 1:09cv301 and 1:10cv58

OPINION AND ORDER
This matter is before the court on a motion for judgment on the pleadings, filed by
defendants Special Agent Paul Muschell (“SA Muschell”), Special Agent in Charge Alvin Patton
(“SAC Patton”), and Special Agent Linda Porter (SA Porter”)(collectively “Special Agents”), on
December 17, 2016. The plaintiffs, James A. Simon (“Simon”), individually and as parent and
guardian of R.S., and the Estate of Denise J. Simon, filed their response on January 20, 2017.
The Special Agents filed their reply on February 6, 2017. For the following reasons, the motion
will be granted.
The procedural history of this case is as follows. On November 6, 2007, IRS employees
conducted a search, pursuant to a federal search warrant, of the residence belonging to James and
Denise Simon, who were suspected of possible violations of the Internal Revenue Code.

Complaint at ¶¶ 13, 18, 30, James A. Simon v. Special Agent Paul Muschell, No. 1:09-CV-301
(“Dkt. No. 1”) (N.D. Ind. Oct. 29, 2009), Dkt No. 1 (“Complaint”). Simon filed two civil actions
challenging the IRS search. The first civil action sought damages from the Special Agents,
unnamed IRS employees, and others for alleged violations of the Simons’ Fourth and Fifth
Amendment rights during the search. Id. at ¶¶ 10, 46-72. The second civil action alleged that the
United States was responsible for the officers’ alleged negligence during the IRS’s tax
investigation of the Simons under the Federal Tort Claims Act (“FTCA”). Complaint, James A.
Simon v. United States, No. 1:10-CV-058-RL (N.D.Ind. Feb. 19, 2010), FTCA Dkt No 1
(“FTCA Complaint”).
In April 2010, while the two civil actions were pending, Simon was indicted by a federal
grand jury on twenty-three criminal counts related to the IRS investigation. Indictment at
pp. 2-17, United States v. Simon, No. 3:10-CR-56(01) RM (N.D. Ind. April 15, 2010), CR Dkt
No. 1 (hereinafter “Indictment”). This Court consolidated the civil actions and stayed the civil
proceedings pending resolution of the ongoing criminal case. Opinion and Order at pp. 2,
14, Dkt No 40. On November 9, 2010, after a six-day jury trial, Simon was convicted by a jury
of nineteen of the twenty-three felony counts, including filing false federal income tax returns,
failing to file foreign bank account and financial account reports, mail fraud, and fraud involving
federal financial aid. His conviction was affirmed by the Seventh Circuit on August 15, 2013.
Simon has served his sentence.
Simon had filed a Motion to Vacate on November 13, 2014, which was denied on July 5,
2016. Simon appealed the denial of his motion to vacate his criminal sentence on October 24,
2016. The Seventh Circuit denied Simon’s request for certificate of appealability on June 7,

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2017, stating that there was no showing of denial of constitutional rights.
This Court lifted its stay of the consolidated civil proceedings for the limited purpose of
briefing and disposition of the United States’ motion to dismiss the FTCA actions. On February
24, 2015, this Court dismissed the FTCA Complaint on the ground that there was no waiver of
sovereign immunity under the FTCA where Plaintiffs’ claims arose out of the assessment or
collection of taxes. See 28 U.S.C. § 2680(c). Opinion and Order at pg.19, Dkt No 51.
This Court next lifted the stay of the civil proceedings for the limited purpose of
allowing the individually-named Special Agents to file a motion for judgment on the pleadings
raising a purely legal issue, the Judgment Bar of 28 U.S.C. § 2676. Opinion and Order, pg. 3
Dkt No. 57. After the Special Agents’ motion had been briefed, but before a decision was
rendered, this Court granted a stay pending a ruling in Simmons v. Himmelreich. The Supreme
Court held on June 6, 2016, that the dismissal of an FTCA claim against the United States does
not bar a subsequent action by the claimant against the same federal employees whose acts gave
rise to the FTCA claim. Simmons v. Himmelreich,

U.S.

, 136 S.Ct. 1843 (2016).

Accordingly, the Special Agents withdrew their motion for judgment on the pleadings (Dkt 70,
November 29, 2016).
As the stay of proceedings entered on December 15, 2015 expired with the Supreme
Court’s final ruling in Himmelreich, the defendants, on December 17, 2016, filed a new Motion
for Judgment on the Pleadings, which is presently before this Court. The defendants claim that
the Plaintiffs fail to state a claim upon which relief can be granted and that the action is barred

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by the qualified immunity of the defendants.1 Finally the Defendants claim that all claims
against SAC Patton should be dismissed on the basis that he may not be held liable for damages
based solely on the actions of individuals he supervised. Defendants request the dismissal of all
of the plaintiffs’ claims against defendants Muschell, Patton and Porter.
Rule 12(c) of the Federal Rules of Civil Procedure permits a party to move for judgment
on the pleadings on a ground set forth in Rule 12(b) after the complaint and answer have been
filed. Northern Indiana Gun & Outdoor Shows v. South Bend, 163 F.3d 449, 452 (7th Cir.
1998). In reviewing a motion made pursuant to Rule 12(c) on the ground of failure to state a
claim upon which relief can be granted, the Court applies the same standard that it applies when
reviewing a motion to dismiss made pursuant to Rule 12(b)(6). Pisciotta v. Old Nat. Bancorp,
499 F.3d 629, 633 (7th Cir. 2007). Consequently, “[a] court will grant a Rule 12(c) motion only
when it appears beyond a doubt that the plaintiff cannot prove any facts to support a claim for
relief and the moving party demonstrates that there are no material issues of fact to be resolved.”
Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 718–19 (7th Cir. 2002).
In reviewing a 12(c) motion, the Court may consider the contents of the pleadings,
including any attached exhibits. Northern Indiana Gun & Outdoor Shows, 163 F.3d at 452. The

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Defendants also initially argued that plaintiffs’ Fourth Amendment claims challenging
probable cause to issue the search warrant are barred by Heck v. Humprey, 512 U.S. 477 (1994),
However, in their reply brief, the defendants noted that they are not “advancing an argument at
this time that a finding that the search warrant was invalid would necessarily imply that James
Simon’s conviction was unlawful...”. See Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir.
1998)(Heck does not bar all Fourth Amendment claims for unlawful search and seizure);
Wallace v. City of Chicago, 440 F.3d 421, 427 (7th Cir. 2006)(many search and seizure claims do
not render a conviction invalid because of doctrines like independent source and inevitable
discovery). As it appears that the defendants have abandoned their Heck argument, this Court
will not address it further.
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Court may also take judicial notice of matters of public record, including public court
documents, without converting a motion for judgment on the pleadings into a motion for
summary judgment. Harrison v. Deere & Co., 533 F. App’x 644, 647 n.3 (7th Cir. 2013); Hallie
v. Wells Fargo Bank, N.A., No. 2:12-cv-235, 2013 WL 1835708, *1-2 (N.D. Ind. May 1, 2013);
Winters v. Illinois State Bd. of Elections, 197 F. Supp. 2d 1110, 1113 (N.D. Ill. 2001). “When
deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must . . . decide whether it is
plausible that plaintiffs have a valid claim for relief.” Diaz-Bernal v. Myers, 758 F. Supp. 2d
106, 115-16 (D. Conn. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (“‘[The] factual allegations [in the
complaint] must be enough to raise a right to relief above the speculative level[.]”)
Although well-pled allegations are assumed true for purposes of a Rule 12(b)(6) motion,
“allegations [that] are conclusory . . . [are] not entitled to be assumed true.” Iqbal, 556 U.S. at
681. “The plausibility standard . . . obligates the plaintiff to ‘provide the grounds of his
entitlement to relief’ through more than ‘labels and conclusions, and a formulaic recitation of the
elements of a cause of action.’” Diaz-Bernal, 758 F. Supp. 2d at 116 (quoting Twombly, 550
U.S. at 555); see Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of
a complaint, they must be supported by factual allegations.”).
The basic background facts in this case are supported by the record and are not disputed.
Since at least January 2007, the Simons were under investigation by the IRS for possible
violations of the Internal Revenue Code. Complaint at ¶ 13; United States v. Simon, 727 F.3d

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682, 683-84 (7th Cir. 2013). On November 2, 2007, IRS SA Muschell submitted an Application
and Affidavit for Search Warrant2. Complaint at ¶¶ 16, 18; Exhibit B to the Motion to Dismiss
the FTCA Complaint, Dkt No 46-2, Application and Affidavit for Search Warrant, United States
of America v. Search of Residence, No. 1:07-MJ-00048-RBC (N.D. Ind. Nov. 2, 2007), ECF No.
1 (hereinafter “Affidavit”). In the supporting Affidavit, SA Muschell stated that probable cause
existed to believe that the Simon residence contained evidence of the following criminal
offenses: conspiracy to commit offenses or defraud the United States by violating federal tax
laws; willful tax evasion; willful failure to file a federal income tax return; and fraud and false
statements. Affidavit, at pp. 17-29. As Plaintiffs admit in the Complaint, SA Muschell “listed in
the Affidavit, a number of what he refers to as tax offender characteristics, such as sham
transactions; assigned income; shell corporations; concealing income; artificial business losses;
and artificial investments . . . .” Complaint, at ¶ 20.15. In fact, SA Muschell stated that it was his
belief that “James A. and Denise J. Simon have devised a scheme . . . for the purpose of evading
and defeating federal income taxes legally owed by James A. and Denise J. Simon.” Affidavit, at
p. 17.
On November 2, 2007, United States District Judge Theresa L. Springmann found that
SA Muschell’s affidavit established probable cause, and issued a warrant authorizing the IRS
to search the Simon residence. Complaint at ¶ 18; Search Warrant, United States of America v.

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“Documents that a defendant attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to her claim.” Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); see also PharMerica
Chicago, Inc. v. Meisels, 772 F. Supp. 2d 938, 947 (N.D. Ill. 2011). Here, the Plaintiffs made
numerous references to the Affidavit in the Complaint. See Complaint at ¶¶ 16, 20-24, 26-27, 37,
44-45. In addition, the Affidavit is central to Plaintiffs’ claims. Id. at ¶¶ 47-48, 50, 56. Thus, the
Affidavit is considered part of the pleadings. This Court takes judicial notice of the Affidavit.
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Search of Residence, No. 1:07-MJ-00048-RBC (N.D. Ind. Nov. 7, 2007), ECF No. 5. On
November 6, 2007, IRS personnel, including SAs Muschell and Porter, executed a search of the
Simon residence. Complaint at ¶ 30; see also Opinion and Order at pp. 1-3, CR Dkt No 74.
SAC Patton was not present during the search at the Simon residence. Answer, ¶ 12, Dkt No
21(office in Chicago); Complaint, passim, Dkt No 1(no reference to SAC Patton’s presence at
residence).
On April 15, 2010, a Grand Jury sitting in South Bend, Indiana, returned twenty-three
counts of indictment against Simon, including a count for filing false income tax returns, 26
U.S.C. § 7206(1), failure to file reports of foreign bank and financial accounts (“FBARs”), 31
U.S.C. §§ 5314 & 5322, mail fraud involving private financial aid, 18 U.S.C. § 1341, and fraud
involving federal financial aid, 20 U.S.C. § 1097. Indictment at pp. 1-16.
Simon challenged the validity of the search warrant and accompanying affidavit through
a motion to suppress. By Opinion and Order dated October 8, 2010, Judge Robert L. Miller, Jr.,
denied Simon’s motion to suppress, except he reserved decision with respect to the
reasonableness of the warrant’s execution and scheduled a hearing on that issue. Opinion and
Order at pg. 34, CR Dkt No 62. Judge Miller noted that Simon’s motion to suppress was based
on a variety of arguments that are repeated in this civil case, including that, SA Muschell’s
affidavit contained false and misleading statements of fact and omitted facts that were material to
the probable cause finding; the affidavit didn’t establish probable cause for the offenses listed;
the search warrant lacked sufficient specificity, and resulted in a “general search” of the Simon
residence, in violation of the Fourth Amendment; the warrant was unreasonable because it
authorized intrusion into the defendant’s residence and was issued contrary to guidelines

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contained in the Internal Revenue Service Manual for search and seizure; and, the warrant was
executed in an unreasonable manner (because the agents allegedly exceeded scope of the warrant
and seized unauthorized items). Id., pg. 3.
Judge Miller held that the search warrant affidavit “set forth enough facts to lead a
responsible person to believe that the search of the residence would produce evidence that Mr.
and Mrs. Simon had filed tax returns that were false because they omitted taxable income and
that Mr. and Mrs. Simon were required to file ‘FBARs’ that they hadn’t filed.” Id., pg. 9. Judge
Miller further held that the alleged omissions “weren’t material to the probable cause finding.¨
Id., pg. 13. Judge Miller also held that the warrant, with an attachment specifying what types of
documents and other evidence could be seized, was sufficiently particularized and not overbroad.
Id., pp. 15-16. Finally, Judge Miller determined that even if the agents departed from IRS
administrative guidelines in obtaining the warrant and conducting the search, those guidelines
did not confer any rights on the target of the search that would render the search unreasonable.
Id., pp. 17-18.
Judge Miller then conducted an October 19, 2010 evidentiary hearing to consider
Simon’s challenges to the reasonableness of the warrant’s execution. There, Simon claimed that
evidence seized in the November 6, 2007, search should be suppressed because the agents used
excessive force by executing the search through eleven armed agents wearing body armor and
flak jackets, and conducting the search in the morning when his wife and his minor child were
present. In an Opinion and Order dated October 20, 2010, Judge Miller denied the remaining
portion of the motion to suppress. Opinion and Order, at pg.5, CR Dkt No 74. Judge Miller
found that the agents did not act unreasonably under the Fourth Amendment. He observed that

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the agents allowed the child to leave for school, and then, at Mrs. Simon’s request, waited about
an hour for her attorney to arrive, and allowed Mrs. Simon to consult with her attorney during
the day and leave the house for lunch. Id., pg. 2. Judge Miller also recognized that the agents
obtained consent from Mrs. Simon to remove some computers and computer-related devices and
image them elsewhere in order to limit the disruption to the Simon family. Id. Examining the
totality of the circumstances and balancing the Simons’ need for privacy with the need for the
promotion of legitimate governmental interests, Judge Miller held that there was nothing facially
unreasonable about the search or the retention of the seized items, and denied the motion to
suppress based on the alleged Fourth Amendment violations. Id., pg. 4-5.
As noted above, a jury found Simon guilty on 19 of the 23 counts, including filing false
federal income tax returns, failing to file foreign bank account and financial account reports,
mail fraud, and fraud involving federal financial aid, but excluding several of the mail fraud
counts. See Opinion and Order at pp. 1-2, CR Dkt No 139 (Jan. 3, 2011). See also Sentencing
Memorandum, CR Dkt No 159 (Mar. 29, 2011); Judgment in a Criminal Case at pp. 3-4, 7, CR
Dkt No 160 (Mar. 29, 2011). The Seventh Circuit affirmed the conviction on August 15, 2013.
United States v. Simon, 727 F.3d 682 (7th Cir. 2013). Simon failed to petition for a writ of
certiorari with the Supreme Court within ninety days, exhausting his direct appeal rights.
Simon was released from prison in June, 2016. See Notice of Anticipated Release Date, CR Dkt
No 212.
Upon his release from prison, Simon renewed his civil litigation efforts. In his
Complaints he has raised three bases for civil damages, all arising out of the search warrant: (1) a
claim alleging that the agents acted in violation of the Fourth Amendment in obtaining a search

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warrant (Complaint, Count 1, ¶¶ 46-54); (2) a claim alleging that the agents violated the Fourth
Amendment in the manner by which they executed the search warrant (Complaint, Count 2, ¶¶
55-64); and (3) a due process claim under the Fourth and Fifth Amendments alleging that the
defendants obtained and executed an improper search warrant,” (Complaint, Count 3, ¶¶ 65-72).
Specifically, plaintiffs allege in Count 1 that: SA Muschell, intentionally or negligently made
false and/or misleading statements in the affidavit in support of the request for a search warrant
of plaintiffs’ home. Id. at ¶ 19; these false and/or misleading statements misled the judge that
reviewed the request for a search warrant. Id. at ¶ 27; the affidavit was negligently reviewed
and/or approved by SA Muschell and other IRS agents prior to being submitted to the court. Id.
at ¶ 22; several government tax offices failed to review the affidavit for completeness and
accuracy. Id. at ¶ 23; the defendants improperly, unlawfully, and negligently tendered the request
for a search warrant, including SA Muschell’s affidavit, when they knew or should have known
there was no probable cause to support a search warrant. Id. at ¶ 24; and defendants failed to
follow several internal IRS regulations during the acquisition and execution of the search
warrant for plaintiffs’ home. Id. at ¶ 25.
In Count 2, plaintiffs allege that that on November 6, 2007, defendant Muschell and
unknown agents searched plaintiffs’ residence pursuant to the search warrant. Id. at ¶ 30. At
the initiation of the search warrant, only R.S., the Simons’ minor daughter, and Denise Simon
were at the Simon residence. Id. at ¶ 32. Plaintiff James Simon was not in the United States at
that time. Id. Despite the fact that neither James Simon nor Denise Simon owned a gun,
several IRS agents executing the search warrant wore bulletproof vests and had their guns
visible during the search of plaintiffs’ home. Id. at ¶¶ 33-34. The IRS agents executing the

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search warrant allegedly violated IRS procedures by putting R.S., who was ten years old at the
time, in harm’s way. Id. at ¶¶ 35-36.
Count 3 contends that during the search, IRS agent Linda Porter made comments to
Denise Simon implying violations of law not addressed in the affidavit or warrant, causing
emotional stress and harm to Mrs. Simon. Id. at ¶ 37. On November 9, 2007, three days after
the execution of the search warrant, Denise Simon committed suicide. Id. at ¶ 40. Several hours
before her death, Denise Simon wrote a letter expressing her concern regarding the armed IRS
agents coming into her home, her concern for her children’s safety after the search, and her
distrust of the federal government. Id. at ¶ 41.
In support of their motion for judgment on the pleadings, the defendants claim that they
are entitled to qualified immunity and that the plaintiffs have failed to allege sufficient factual
allegations to state a claim and are barred by collateral estoppel.
“[T]he defense [of qualified immunity] is meant to give government officials a right, not
merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as
discovery.’” Behrens v. Pelletier, 516 U.S. 299, 308 (1996); Pearson v. Callahan, 555 U.S.
223, 231 (2009) (“[Q]ualified immunity is an immunity from suit rather than a mere defense to
liability[.]”). For that reason, “qualified immunity questions should be resolved at the earliest
possible stage of a litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). Qualified
immunity therefore may be raised in a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467, 471 (7th Cir.1997) (“[Q]ualified
immunity may be raised in a motion to dismiss, but at that stage, we consider only the facts in
the complaint which we are obligated to accept as true.”); see also Iqbal, 556 U.S. at 673 (“[T]he

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sufficiency of [the] pleadings is . . . directly implicated by the qualified immunity defense.”).
“[Q]ualified immunity . . . shields Government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights.”
Iqbal, 556 U.S. at 672 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Whether a
right is clearly established is a question of law for the court to decide.” McGrath v. Gillis, 44
F.3d 567, 570 (7th Cir. 1995). In the context of a motion to dismiss, “qualified immunity
protects government officials from liability for civil damages ‘unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.’” Wood v. Moss, 134 S. Ct. 2056,
2066-67 (2014).
“[U]ntil a particular constitutional right has been stated so that reasonably competent
officers would agree on its application to a given set of facts, it has not been clearly established.”
Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir. 1991) That is, “a defendant cannot be
said to have violated a clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes would have understood that he was
violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). In that regard, the Supreme
Court has admonished courts not to “define clearly established law at a high level of generality .
.. since doing so avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.” Id. (internal citation omitted). Indeed, “[q]ualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

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With respect to the alleged Fourth Amendment warrant violation related to IRS
procedures, the defendants argue that the allegations fail to overcome qualified immunity, as
they do not allege the violation of a clearly established Constitutional right. Moreover, the IRS
Manual is solely for internal agency use and does not confer any substantive rights on other
parties. United States v. Peters, 153 F.3d 445, 452 n.9 (7th Cir. 1998).The Court agrees with the
defendants on this point.
With respect to the search, the plaintiffs allege that the execution of the search warrant
was unreasonable because the Special Agents first failed to take reasonable efforts to determine
that the Affidavit was accurate and supported by probable cause and also because the Special
Agents used excessive force in executing the warrant.
A search incident to a validly-issued warrant does not violate the Constitution, even when
the warrant may contain incorrect information. Maryland v. Garrison, 480 U.S. 79, 84 (1987).
As noted, qualified immunity . . . shields Government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights.”
Iqbal, 556 U.S. at 672 . That is, “qualified immunity protects government officials from liability
for civil damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory
or constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.’” Wood, 134 S. Ct. at 2066-67.
The second prong asks whether the constitutional right that the officer allegedly violated
was “clearly established” at the time of the incident such that it would “be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.
194, 202 (2001). “Reasonable notice does not require that there be a case ‘fundamentally

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similar’ to the present case, and indeed an officer can be on notice that his conduct violates
constitutional rights even in novel factual circumstances.” Hope v. Peltzer, 536 U.S. 730, 741
(2002); see also Narducci v. Moore, 572 F.3d 313, 318 (7th Cir. 2009) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
In the present case qualified immunity applies because the conduct alleged would not
constitute the violation of clearly established constitutional law. As Judge Miller found, in light
of the pre-existing law concerning execution of search warrants, the Special Agents would not
have been aware that their actions entering the residence and searching for evidence listed in the
search warrant were unlawful on November 6, 2007. They entered with a sufficient number of
agents to secure the premises and were wearing clothing that protected them from potential
harm. As the Second Circuit recently explained “there is no clearly established right . . . to be
free from the deployment of a tactical team in general.” Terebesi v. Torreso, 764 F.3d 217, 233
(2d Cir. 2014). The agents did not restrain Mrs. Simon, but allowed her to meet with her
attorney, go to lunch and have private discussions with her attorney sitting in her car.
Plaintiffs, in their response brief, argue that they have alleged facts in their complaint that
necessitate a closer look at the facts and that they should be allowed to conduct discovery and
revisit the question of qualified immunity at a later stage. Clearly, plaintiffs misunderstand the
nature of the doctrine of qualified immunity. As noted above, qualified immunity provides
immunity from suit.
Moreover, as noted in the recent case of Green v. Newport, No. 16-1536, 7th Cir. Aug. 22,
2017, the Supreme Court has instructed that "clearly established law should not be defined at a
high level of generality." White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (citation and

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quotation marks omitted). While a case directly on point is not required, "the clearly established
law must be `particularized' to the facts of the case." Id. at 551 (citation omitted). The Court has
found that "[s]uch specificity is especially important in the Fourth Amendment context, where . .
. `it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will
apply to the factual situation the officer confronts.'" Mullenix, 136 S. Ct. at 308 (citation and
alterations omitted). In the case at bar, Plaintiffs have failed to present any case, even slightly on
point, that would show that the clearly established law indicated that the Special Agents were
violating the plaintiffs’ constitutional rights. Clearly, the allegations of the complaint simply do
not raise a Fourth Amendment violation of which these defendants should have known.
Accordingly, defendants are entitled to qualified immunity for their actions in executing the
search warrant.
Plaintiffs further assert a due process claim arising from the suicide of Denise Simon
three days after execution of the search warrant. Plaintiffs allege that “upon information and
belief, during the Search, Porter made comments to the decedent that were improper by implying
violations of law not specified or addressed in the Affidavit or Warrant causing unnecessary
emotional stress and harm to Decedent.” Complaint. ¶ 37. Defendants argue that this statement
is too vague to pass muster under the specific pleading requirements of Iqbal. This Court agrees
that the plaintiffs have failed to allege any facts that set forth the existence of a clear due process
violation. The facts plead do not have facial plausibility enabling the court to draw a reasonable
inference that the defendants are liable for the alleged misconduct. Plaintiffs do not allege what
comments were made or how they caused harm to Denise Simon. Moreover, the defendants are
entitled to qualified immunity on this claim because Denise Simon’s suicide does not implicate a

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clearly established constitutional right in 2007. As noted, Plaintiffs have not alleged that one of
the defendants took specific actions that directly caused Denise Simon’s death. Nor have the
plaintiffs pointed to any case law suggesting that there is a clearly constitutional right that was
implicated by the alleged misconduct.
Next, the defendants claim that plaintiffs claims are barred by the doctrine of collateral
estoppel. Under the doctrine of collateral estoppel or claim preclusion, “once an issue is
actually and necessarily determined by a court of competent jurisdiction, that determination
is conclusive in subsequent suits based on a different cause of action involving a party to the
prior litigation.” Montana v. United States, 440 U.S. 147, 153, (1979). However, collateral
estoppel applies only when the party against whom the earlier decision is being asserted had
a “full and fair opportunity” to litigate the issue in question. Id.; Parklane Hoisery Co., Inc.
v. Shore, 439 U.S. 322, 333-34 (1979) (offensive use of collateral estoppel permitted to bar
relitigation of whether a proxy statement was materially false and misleading). Collateral
estoppel may apply in a Bivens case where the plaintiff had unsuccessfully challenged the same
allegedly unconstitutional behavior in a prior criminal case preliminary hearing or motion to
suppress. See Allen v. McCurry, 449 U.S. 90, 102 (1980)(Issue preclusion applies to bar
relitigation of validity of search and seizure in subsequent action brought pursuant to §1983).
Through a motion to suppress brought by his counsel in his criminal case, Simon fully,
but unsuccessfully, litigated the claims that there was no probable cause for issuance of the
search warrant and that the execution of the search warrant was unreasonable; therefore he is
estopped from challenging those decisions in this case. (Compare Complaint with Motion to
Suppress Evidence, CR Dkt No 37; and the Opinion and Order denying motion to suppress in

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part, CR Dkt No 62; and Opinion and Order, CR Dkt No 74. Denying, after a hearing, the
remaining portion of the motion to suppress). Because the allegations of Fourth and Fifth
Amendment violations raised in the suppression motion mirrored those raised in this Bivens case
and the Court in the criminal case denied the motion to suppress in full, Simon is estopped from
challenging those findings in this case. Guenther v. Holmgreen, 738 F.2d 879 (7th Cir. 1984)
(determining plaintiff was precluded from relitigating the issue of the validity of his arrest
because the state court ruling at his preliminary hearing determined the officers had probable
cause to arrest him); Donovan v. Thames, 105 F.3d 291, 297-98 (6th Cir. 1997) (determining
suppression hearing did not bar excessive force claim but it did bar relitigation of the validity of
arrest because the state court ruling determined the officer had probable cause to arrest plaintiff);
Cameron v. Patterson, 2012 WL 1204638, at *3 (N.D. Ill. Apr. 10, 2012) (determining that
plaintiff was collaterally estopped from pursuing false arrest claim because he had challenged, in
his motion to quash arrest and suppress evidence in the state criminal case, whether there was
probable cause for the stop); see also Wright and Miller, 18B Fed. Prac. & Proc. Civ. 3d § 4474
(West 2004 & Supp.2016).
As noted earlier, Simon’s request to file a motion to vacate sentence was denied by the
Seventh Circuit on July 5, 2016. Thus, Simon’s appeals have been exhausted and he is barred
from pursuing his claims by reason the doctrine of collateral estoppel. Plaintiffs, however, assert
that the claims of James A. Simon as Parent and Guardian of R.S. and the Estate of Denise J.
Simon are not barred by the doctrine of collateral estoppel. Plaintiffs claim that these plaintiffs
were not parties to the criminal case and had no opportunity to litigate the issue in question.
The law is clear that collateral estoppel may be applied to the claims of third parties who

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are in privity with a party to the prior litigation, even when the prior action is criminal in nature.
Studio Art Theatre v. Evansville, Inc. v. Gann, 76 F.3d 128 (7th Cir. 1996). Where a non-party to
a prior action is so closely aligned with the interests of the party to the prior litigation, they may
be bound by the ruling from a suppression hearing in the prior litigation. Id. at 131; Allen v.
United States, 964 F.Supp.2d 1239 (D. Nev. 2013)(suppression hearing is grounds for collateral
estoppel in subsequent Bivens case and non-party to the prior action may be bound; Beets v.
County of Los Angeles, 669 F.3d 1038, 1046-47(9th Cir. 2012) (criminal conviction precluded a
Section 1983 claim brought by the parents of an individual convicted for resisting arrest); Kray
v. City of Tacoma, 2012 WL 2062397 (W.D. Wash 2012) (brother of a man who was criminally
convicted was barred from alleging a Section 1983 claim that would undermine the validity of
his brother’s conviction).
In the present case, the Estate of Denise Simon and minor R.S. seek to hold the Special
Agents individually liable for violations of their constitutional rights allegedly arising from the
unlawful issuance and execution of a search warrant at their home. Defendants argue that these
two plaintiffs are so closely connected with the criminal defendant3, Mr. Simon, that they are
bound by the decision on the motion to suppress. Defendants point out that Mr. Simon had every
reason to vigorously litigate the motion to suppress and this Court notes that the record shows
that the motion was, in fact, vigourously litigated. Notably, plaintiffs have not cited any case
law in support of their assertion that collateral estoppel should not apply. Plaintiffs merely opine

3

Denise Simon was deceased prior to the issuance of the indictment. However, the
Court’s sentencing memorandum found that Denise was a “knowing partner” in the tax fraud
scheme. Thus, it is clear that the interests of the Estate are not substantially different from Mr.
Simon’s interests.
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that it is “contrary to common sense that collateral estoppel would bar the claims of the Plaintiffs
in this case.” As the law clearly supports the defendants’ position, this court holds that the
doctrine of collateral estoppel bars all of the plaintiffs’ claims.
Next, the defendants argue that SA Patton must be dismissed from this case for lack of
personal involvement. It is well established that “[t]o establish a Bivens claim, a plaintiff must
demonstrate the defendant’s direct or personal involvement in the actions that are alleged to have
caused the constitutional deprivation.” Vance v. Rumsfeld, 701 F.3d 193, 203 (7th Cir. 2012); see
also Iqbal, 556 U.S. at 677 (“[E]ach Government official, his or her title notwithstanding, is only
liable for his or her own misconduct.”). In that regard, “purpose rather than knowledge is
required to impose Bivens liability on . . . an official charged with violations arising from his or
her superintendent responsibilities.” Iqbal, 556 U.S. at 677. It has long been held that the
doctrine of respondeat superior does not apply to Bivens cases. Thus to be held individually
liable, “a defendant must be ‘personally responsible for the deprivation of a constitutional
right.’” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)(quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir.2001) (quotation omitted). Prior to Iqbal, a defendant could
“be deemed to have sufficient personal responsibility if he directed the conduct causing the
constitutional violation, or if it occurred with his knowledge or consent.” Chavez, 251 F.3d at
652. The plaintiffs do not allege that SA Patton had personal responsibility for conducting the
search, but allege only that he “had actual knowledge of and acquiescence in Muschell’s,
Porter’s, and Unknown Agents’ conduct by adopting and maintaining a practice, custom or
policy that contributed to the violation of Plaintiffs’ constitutional rights.”
In their Complaint, Plaintiffs specifically allege that SAC Patton is the Special Agent in

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Charge of Defendant Paul Muschell. See Complaint ¶¶ 5, 7. In his duties as the Special Agent in
Charge, SAC Patton was responsible for Mr. Muschell’s training and supervision. See id. at ¶ 7.
The Complaint further alleges that as Special Agent in Charge, SAC Patton improperly reviewed
and/or approved the Affidavit supporting the request for a search warrant prior to it being
submitted to the Court, failed to review said Affidavit for completeness and accuracy, and
improperly and unlawfully tendered the Affidavit to the Court, procuring the issuance of the
Warrant, when he knew that there was no probable cause for said Warrant. See id. at ¶¶ 22-24.
Plaintiffs thus conclude that SAC Patton was directly involved in supervising and training agents
in their activities here in the state of Indiana and that SAC Patton’s supervision and training of
SA Muschell led to the constitutional violations at issue.
However, as noted above, a supervisor may not be liable in a Bivens action for the
conduct of those under him unless he intended those actions to occur. Iqbal, 655 U.S. at 677.
As the defendants note, there are no allegations in the complaint that SAC Patton intended the
other Special Agents to act in a way that would have violated Plaintiffs’ constitutional rights.
Rather, all the Plaintiffs argue is that SAC Patton had knowledge or acquiesced in unspecified
practices, customs and polices because he has adopted and maintained practices, customs and/or
polices that contribute to the violations. Complaint at ¶¶ 51, 61, 69. Importantly, none of the
factual allegations in the complaint assert that SAC Patton acted in a way that would lead a
reasonable fact finder to hold that he intended any violation of Plaintiffs’ constitutional rights.
Accordingly, this Court must dismiss the claims against SAC Patton on this basis also.

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Conclusion
On the basis of the foregoing, the defendants’ motion for judgment on the pleadings is
hereby GRANTED.

Entered: September 13, 2017.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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