Arrington v. City of Fort Wayne

Filing 71

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, Defendant Lunz Excavating, Inc.'s Motion for Summary Judgment 50 , Defendant Kelley Towing's Motion for Summary Judgment 52 , and Defendants, City of Fort Wayne and J ohn Caywood's Motion for Summary Judgment 56 are GRANTED. Arrington's federal claims are DISMISSED WITH PREJUDICE, and this case is REMANDED to Allen Superior Court for further proceedings. Signed by Judge Rudy Lozano on 9/27/2017. (Copy mailed to pro se party; cert copy of order and docket sheet sent to Allen Superior Court)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
EDDIE J. ARRINGTON,
Plaintiff,
vs.
CITY OF FORT WAYNE, et al.
Defendants.

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CAUSE NO. 1:16-CV-148

OPINION AND ORDER
This matter

is before the Court on: (1) Defendant Lunz

Excavating, Inc.’s Motion for Summary Judgment (DE #50); (2)
Defendant’s Motion for Summary Judgment, filed by Kelley Towing (DE
#52); and (3) Defendants, City of Fort Wayne and John Caywood’s
Motion for Summary Judgment (DE #56), all filed on February 23,
2017.

For the reasons set forth below, the motions are GRANTED.

Arrington’s federal claims are DISMISSED WITH PREJUDICE and this
case is REMANDED to Allen Superior Court for further proceedings.

BACKGROUND
On March 10, 2016, Eddie J. Arrington (“Arrington”) filed a
complaint against the City of Fort Wayne (“City”), Mayor Henry,
John

Caywood

(“Caywood”),

Kelley

Towing

(“Kelley”),

Excavation (“Lunz”) in the Allen Superior Court.

and

Lunz

The complaint

alleges that the Defendants discriminated against him based on his

“race and aesthetic belief,” by depriving him of property in
violation of the Fourteenth Amendment and I.C. § 35-46-4-1.

More

specifically, he alleges that, on March 10, 2014, a neighborhood
code officer, together with the Fort Wayne Police Department,
entered

his

property

and

unlawfully

removed

his

trailer, riding lawn mower, grill and other items.

car,

truck,

Because the

complaint asserts federal claims, it was removed to this Court.
Defendants have each filed a motion for summary judgment
asserting that judgment must be entered in their favor as a matter
of law.

Each Defendant also served Arrington with a “Notice of

Summary Judgment Motion” that explained what a summary judgment
motion is and his obligations in response to the motion. (DE ##54,
55, 59).

The notice explained that factual allegations must be

supported with citations, and that the court is not required to
consider materials that are not cited.

Despite these notices,

Arrington filed a single response to the instant motions that is
roughly two pages in length and devoid of any citations. (DE #66).
He also filed a handful of exhibits, including a disk with two
video segments. (DE #67). Defendants filed a joint reply brief on
July 21, 2017, and the motion is now ripe for adjudication.

DISCUSSION
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.”

FED. R. CIV. P. 56(a).

A genuine

dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every

dispute

between

the

parties

makes

summary

Not

judgment

inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”

Id.

In determining whether

summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

“However, our favor

toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”

Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).

If the nonmoving party fails to

establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
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Facts
Each Defendant has provided a statement of undisputed material
facts with citations to supporting evidence in compliance with the
requirements of Federal Rule of Civil Procedure 56 and Northern
District of Indiana Local Rule 56-1. Accordingly, to avoid summary
judgment, Arrington must demonstrate that there is a genuine
dispute by citing material facts he contends are in dispute in a
statement of genuine disputes or showing that the materials cited
by the Defendants do not establish the absence of a genuine
dispute.

Fed. R.Civ. P. 56(c).

Although there are three separate motions for summary judgment
before

the

Court,

the

controlling

identical as to each motion.

facts

are

undisputed

and

For that reason, the Court has

borrowed liberally from the response brief of the City, Mayor
Henry, and Caywood. (DE #57). Arrington’s response brief does not
contain a statement of genuine disputes, but does cite to several
exhibits in the body of his response.

Although not strictly in

compliance with this Court’s rules, in light of his pro se status,
the exhibits cited by Arrington have been considered by the Court.
These exhibits, however, do not directly contradict any of the
Defendants’

assertions.

Accordingly,

where

Defendants

have

appropriately cited to the record, the facts they present are
deemed admitted.
The City has enacted ordinances which regulate housing and
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building

standards

for

properties

located

within

the

City,

including an ordinance entitled “Minimum Housing and Maintenance
Standards, codified as Chapter 152 of the Fort Wayne City Code of
Ordinances.” (Caywood Aff. ¶ 4). The City has also enacted an
ordinance regulating the manner of parking of motor vehicles within
the City limits.

(Id. ¶ 5).

Section 152.04.C(6) and (7) govern exterior property areas and
provide:
(C) Exterior Property Areas.
****
(6) Vehicles. Except as provided for in other
regulations, no inoperable motor vehicle shall
be parked, kept or stored on any premises, and
no vehicle shall at any time be in a state of
major disassembly, disrepair, or in the
process of being stripped or dismantled. All
operable vehicles shall be parked on an
approved surface.
(7) Prohibited outdoor storage. It shall be
unlawful and prohibited for an occupant to
cause, keep, permit or maintain a public
nuisance. Public nuisance shall include, but
not be limited to, the following:
(a) Building materials stored on any
premises, except the following: building
materials and equipment placed or stored on
premises, or for a period of no longer than 30
days prior to a commencement of building, and
no longer than ten days after the completion
of building on said premises.
(b)
Any
furniture,
appliances
or
household items not originally designed or
manufactured solely for outdoor use, including
tools, auto parts, and other similar items.
(c) Any equipment, furniture, bicycles,
or children’s toys which were originally
designed or manufactured for outdoor use and
which are now dilapidated, deteriorated or
dismantled.
-5-

(Caywood Aff. Ex. 1 at 9).
Section 152.04.E, governs trash and debris. It provides:
(E) Trash and Debris. All exterior property
and premises, and the interior of every
structure, shall be free from any accumulation
of trash and debris.
(1) Disposal of Trash and Debris. Every
occupant of a structure shall dispose of all
refuse in a clean and sanitary manner by
placing in refuse containers.
(2) Approved Refuse Containers. The owner
of every occupied premise shall be responsible
to supply covered refuse containers for trash
sufficient to meet the needs of the occupants.
(Caywood Aff. Ex. 1 at 11).
The City’s Neighborhood Code Enforcement Department (“NCE”) is
responsible for enforcement of both the Indiana Unsafe Building Law
(I.C. § 36-7-9 et seq.) and the relevant sections of the City
Building Code. (Caywood Aff. ¶ 6).

On March 10, 2014, the date of

the NCE’s entry onto Arrington’s properties to abate violations of
the City Code, Cindy Joyner was the Deputy Director of NCE. (Joyner
Aff. ¶¶ 2-3). Caywood held the position of Administrator.
3; Caywood Aff. ¶ 3).
field

supervisor

and

(Id. ¶

His duties included the supervision of one
eleven

(11)

Code

enforcement

officers.

(Caywood Aff. ¶ 3). He was not a policy maker for NCE or the City.
(Id.).

NCE has policies and procedures for its enforcement of the

City Code. (Id. ¶ 7; City Code Section 152.12, Enforcement of
Penalties; I.C. § 36-7-9-17).
When NCE learns that a property may be in violation of Section
152 or 72, or the Unsafe Building Law, a Code enforcement officer
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goes to the property, inspects the property, and takes photographs
of the items that violate the City Code.
NCE then cites the property owner. (Id.).

(Caywood Aff. ¶ 8).

The

The property owner has

a right to an administrative hearing. (Id.). If the violations
concern health and safety, NCE will give the property owner ten
days to abate the violation. (Id.). If the violations are not
abated, the NCE issues a written Order to Abate (“OTA”), giving the
property owner an additional ten days to abate the violations.
(Id. ¶ 9).

The order becomes final unless a hearing is requested

in writing by the property owner. (Id. ¶ 9; see also Section
152.12.)
If no hearing is requested, at the end of the ten days, the
enforcement officer returns to the property to again inspect to see
if the property owner has abated the violation, in which case, no
further enforcement action is taken. (Caywood Aff. ¶ 10). If,
however, the cited violations have not been abated, the City’s NCE
may file suit in Allen Circuit or Superior Court for injunctive
relief and an order permitting NCE to enter the property and itself
abate the violations. (Id. ¶ 10).

In most cases, judicial action

is unnecessary and the property owner complies at some point during
the administrative process. (Id.).
The City ordinances are enforceable against all privately
owned properties in the City.

(Caywood Aff. ¶ 11).

They are

enforced in all neighborhoods of the City and are enforced without
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regard to the race of the property owner. (Id. ¶ 11; Joyner Aff.,
¶ 7).

Indeed, the county records of property ownership do not

identify the race of the owner and none of the NCE records identify
the race of the owner to whom enforcement OTAs are sent. (Caywood
Aff. ¶ 11).

Therefore, often times, when NCE begins enforcement

actions against a property owner, the NCE officer does not know the
race of the property owner.

(Joyner Aff. ¶ 7).

Rather, NCE merely

knows that the property is in violation of the City Code. (Id. ¶
7).
The NCE begins enforcement actions against a property owner
when the violation comes to the attention of a Code enforcement
officer. (Caywood Aff. ¶ 12). Offending properties come to the
NCE’s attention in a variety of different ways, such as oral or
written complaints about the property received from neighborhood
associations, neighbors, citizens, other city employees of other
departments, or from the personal observation of the enforcement
officers when they are in the field inspecting other properties.
(Id.).

The race of the property owner is not a factor in Caywood’s

decisions to take enforcement action and was not considered in
deciding to take action against Arrington. (Caywood Aff. ¶ 13;
Joyner Aff. ¶ 8).
Because

NCE’s

resources

are

finite,

NCE

must

prioritize

enforcement efforts based on the seriousness of the violations, the
number of violations, and their visibility.
-8-

Moreover, not all

violations come to the attention of NCE and, even after abatement
has occurred due to NCE’s enforcement actions, future violations
may occur that may or may not come to NCE’s attention. (Caywood
Aff. ¶ 14; Joyner Aff. ¶ 9). However, when the new violations come
to NCE’s attention, additional enforcement actions are usually
taken. (Id.).
Until recently, Arrington owned and lived at 3422 S. Lafayette
Street. (Arrington Dep. p. 11).

He also owned an adjacent lot at

3502 S. Lafayette Street (collectively “properties”). (Arrington
Dep. at 10).

The properties front Lafayette Street, which is a

major corridor for traffic traveling north into the City’s downtown
area and to the City’s north side. (Par. 5 of Findings of Fact and
Conclusions of Law and Order of Permanent Injunction issued by The
Honorable Nancy Eshcoff Boyer, Judge Allen Superior Court, December
17, 2013, hereinafter “Order”, Ex. 1 to City Defendants’ Answer to
Plaintiff’s Complaint).
Arrington

salvages

and

collects

scrap

metals

and

other

discarded items and then either sells, trades, or gives the items
away at yard sales. (Arrington Dep. at 71-72).
many yard sales as weather would permit.
2009,

NCE

has

received

numerous

(Id.).

complaints

property located at 3422 Lafayette.

Arrington had as
Since August of

about

Arrington’s

(Caywood Aff. ¶ 15).

The

complaints have been about the condition of the outside yards of
the property, including complaints that it looks like a “junkyard”
-9-

and is constantly full of trash, junk, and dilapidated items as
well as broken down, partially dismantled and inoperable vehicles.
(Id.). There were also complaints that the owner had frequent yard
sales.

(Id.; Order ¶ 9).

Following receipt of these complaints in 2009, NCE began an
investigation of the property that led to the filing by the City of
a complaint for injunctive relief in the Allen Circuit Court, Cause
No. 02C01-1101-PL-00005. (Order ¶ 16).

After the Circuit Court

conducted an evidentiary hearing that Arrington failed to attend,
the Circuit Court entered an order for mandatory injunction. (Id.
¶¶ 17-18).

On April 8, 2011, NCE removed items from the properties

that violated the City Code. (Id. ¶ 19; Caywood Aff. ¶ 16).
However, Arrington continued to accumulate and store items of
personal property in violation of the City Code at both of his
properties for his yard sales, and the City continued to receive
numerous complaints about the storage of items and parked vehicles
at the properties. (Caywood Aff. ¶ 17).

From January 15, 2011,

through March 5, 2013, the City received eight complaints about
trash and debris, abandoned vehicles, and deteriorated items on the
property. (Order ¶¶ 20-21).

In addition, NCE Director Joyner and

NCE Administrator Caywood each received numerous other complaints
in person, by telephone, and by email about the properties. (Order
¶ 22).
After

obtaining

inspection
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warrants

pursuant

to

I.C.

§

36-7-9-16 from the Allen Superior Court, NCE’s Caywood inspected
the properties on May 10, 2013, and found numerous items being
stored outside that were not designed or manufactured solely for
outdoor

use

and

found

multiple

other

items

that

were

in

dilapidated, deteriorated or dismantled condition. (Order ¶ 24).
While at the properties, Caywood directed photos be taken of
numerous items violative of the City Code and also had a list
prepared of the personal property being stored in violation of City
Code. (Arrington Dep. Ex. A).
On

June

12,

2013,

NCE

issued

a

notice

of

violation

by

certified mail, but Arrington failed to sign for the notice.
(Caywood Aff. ¶ 19).

On July 24, 2013, NCE served Arrington with

two Orders to Abate, each with photos and lists of the personal
property found to be violative of the Code. (Id.).

Pursuant to

I.C. § 36-7-9-5(b)(6), the orders informed Arrington that he had
the right to contest the OTAs by requesting a hearing.

(Id.).

The

OTAs gave Arrington ten days to abate and advised him that the
properties would be reinspected after ten days, on August 3, 2013,
and if violations remained, legal proceedings would be initiated to
compel Arrington’s compliance with City Code. (Id.; Arrington Dep.
Ex. A).
On August 9, 2013, Caywood reinspected the properties and
found that Arrington had not complied with the Orders to Abate.
(Caywood Aff. ¶ 20).

Therefore, on September 13, 2013, the City
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filed a complaint for injunctive relief and to recover civil
penalties against Arrington in the Allen Superior Court. (Id.;
Arrington Dep. Ex. A).

A hearing was held on October 18, 2013, and

testimony was taken from NCE witnesses Joyner and Caywood and from
Arrington.

(Caywood Aff. ¶ 21).

At the hearing, Arrington

admitted that he had received the two OTAs but that he had ignored
them since he saw nothing wrong with the items that were stored on
his

properties.

(Order

¶

33).

According

to

Arrington,

even

dilapidated, deteriorated or dismantled items are items he can use.
(Id. ¶ 37).
On December 17, 2013, Judge Boyer issued an order of permanent
injunction. (City’s Answer Ex. A; Arrington Dep. Ex. B).

In her

order, Judge Boyer concluded that the City had acted within its
lawful authority and its police power when it had enacted its safe
housing ordinance and its abandoned vehicle ordinance and that
these ordinances were legally enforceable as applied to Arrington.
(Order ¶¶ 14, 15).

The court also held that the City had met its

burden of establishing that Arrington had repeatedly violated and
continued to violate Sections 152.04(C)(6) and (7), and Section
72.23 of the City Code, and that Arrington had received repeated
notices of these violations but had failed to take action to
correct the violations. (Order ¶¶ 23, 25 and 26).

The Court then

issued a permanent mandatory and prohibitory injunction as follows:
27. Pursuant to I.C. 36-7-9-18, the Court
hereby grants a mandatory injunction against
-12-

Arrington, and ORDERS Arrington to take
immediate action to bring the Properties into
compliance with the Ordinance. Specifically,
the Court hereby ORDERS as follows:
a. Arrington is ORDERED to remove from
the outside of the Properties, including
porches and yards, all furniture, appliances,
or other household items that are not designed
or manufactured solely for outdoor use.
b. Arrington is ORDERED to remove from
outside of the Properties, all equipment,
furniture, bicycles, or children’s toys that
were designed or manufactured solely for
outdoor use but which have become dilapidated,
deteriorated, or dismantled.
c. Arrington is ORDERED to remove from
the outside of the Properties all vehicles
that are inoperable. Any operable vehicle must
be parked on a driveway, carport, street, or
alleyway in compliance with state and local
laws.
(Order ¶ 27)(emphasis in original).

The court gave Arrington

thirty days to comply and directed the City to schedule another
hearing to determine if Arrington had complied with the mandatory
injunction. (Id. ¶¶ 28 and 29).
In addition to the mandatory injunction, the court entered a
permanent prohibitory injunction against Arrington:
The Court hereby enjoins Arrington from
violating
Fort
Wayne
Municipal
Code
§152.07(C)(7); Fort Wayne Municipal Code
§152.06; and Fort Wayne Municipal Code §72.22.
Specifically, the Court ORDERS and enjoins as
follows:
a. Arrington will not store on the
outside of the Properties, including all
porches and yards, any furniture, appliances,
or other household items that are not designed
or manufactured solely for outdoor use.
b. Arrington will not store on the
outside of the Properties, including all
porches and yards, any equipment, furniture,
-13-

bicycles, or children’s toys that are designed
or manufactured solely for outdoor use but
which have become dilapidated, deteriorated,
or dismantled.
c. Arrington will not park on the outside
of the Properties any vehicles that are
inoperable. All operable vehicles will be
parked on a driveway, carport, street, or
alleyway in compliance with state and local
laws.
(Order ¶ 32).
On January 21, 2014, at the request of the City, the Court
scheduled a compliance hearing for February 11, 2014.

(Arrington

Dep. Ex. C). The compliance hearing was held on February 11, 2014,
and the court found that Arrington had failed to comply with the
Court’s December 17, 2013, Order but that Arrington had agreed to
remove the items in violation, including a trampoline, wooden
indoor furniture and gas grills.

(Arrington Dep. Ex. D).

The

court gave Arrington fourteen days to remove the property as
described in the December 17, 2013, Order and stated that if
Arrington did not, the City was to file a notice of non-compliance,
after which the court would issue an order authorizing the City to
enter the properties to remove the items in violation of the Order.
(Id.).
On

February

28,

2014,

the

City

filed

a

Notice

of

Non-Compliance supported by an affidavit of Caywood and photographs
he directed be taken of the properties on February 27, 2014,
showing several items not in compliance including a trampoline,
wooden indoor furniture, gas grills, the motorcycle, and a pickup
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truck with a flat tire. (Arrington Dep. Ex. E).

In response, on

March 3, 2014, the court issued an order authorizing the City to
enter upon the properties and remove items that remained in
violation of the December 17, 2013, Order. (Arrington Dep. Ex. F).
On March 10, 2014, Caywood, along with other code enforcement
officers, came to the properties and removed the items that were in
violation of the Court’s Order, including the motorcycle, the
truck, a trailer, grills, indoor furniture, tires, scrap, building
materials,

children’s

toys,

etc.

outside. (Caywood Aff. ¶¶ 22, 23).

that

were

improperly

stored

The City took only property

that was violative of the December 17, 2013, Order. (Id.).
The City contracted with Kelley to tow the truck, trailer and
motorcycle and contracted with Lunz to remove the other items in
violation of the December 17, 2013, Order. (Caywood Aff. ¶¶ 22, 23,
25; Novell Decl. ¶ 4).

Lunz removed only the specific items of

property they were told to remove at the direction of the City.
(Lunz Aff. ¶¶ 4-5).

At all times on March 10, 2014, Lunz acted

pursuant to the court order and under the supervision and direction
of the City.

(Id.).

Caywood instructed Kelley’s employees to remove the silver
truck because it was inoperable and lacked a battery.1

(Caywood

1
Caywood told Arrington that he was free to place a battery in the
truck, start the truck, drive it one foot forward and one foot back to prove
it was operable, but Arrington did not do so. (Caywood Aff. ¶ 27). Arrington
disputes this, although he produced no evidence to support his assertion. (DE
#66 at 2).

-15-

Aff. ¶ 23; Pl. Dep. at 35, 41; Novell Decl. ¶ 6).

They were also

instructed to remove an inoperable motorcycle with missing parts
and a back tire that would not turn. (Caywood Aff. ¶ 23; Pl. Dep.
202-03; Novell Decl. ¶ 6).

Additionally, Kelley was instructed to

remove a homemade trailer that was dilapidated and had a damaged
hitch.

(Oct. Hr’g 41, Ex. B; Pl. Dep. 188; Caywood Aff. ¶ 23;

Novell Decl. ¶¶ 5-6).

The truck and the trailer were full of trash

and debris, tires, building equipment, and other items in violation
of the court Order. (Caywood Aff. ¶ 28). Arrington conceded in his
deposition testimony that, to the best of his knowledge, Kelley was
acting at the direction of the City and Caywood. (Pl. Dep. at 18991). Caywood directed that photos be taken of the items removed to
demonstrate the condition of the property that was removed. (Id. ¶
22, Ex. 3).
On March 10, 2016, two years later, Arrington filed this
lawsuit.

According to Arrington’s deposition testimony, the sole

basis for his allegations of racially based selective enforcement
of the ordinance against him is photos he took at various times
showing

alleged

Code

violations

at

several

other

properties.

Arrington asserts that these properties are owned by white people,
and the NCE failed to take enforcement action against these
properties.

(Arrington Dep. at 92).

One of the properties

identified by Arrington is 3420 S. Lafayette, located adjacent to
Arrington’s

residence

and

another
-16-

is

3514

Lafayette,

located

adjacent to Arrington’s lot (Arrington Dep. at 93). He also
identified 4122 Winter Street (Arrington Dep. at 128-29), and 3711
Barr Street. (Arrington Dep. at 129-32).
Arrington believes 3420 S. Lafayette is owned by a Caucasian
family named Wolf. He admits that NCE enforcement action was taken
against the property in 2010, but he claims the property is still
in violation. (Arrington Dep. at 103-05).

Arrington claims the

3514 Lafayette property is owned (or at least occupied) by a
Hispanic woman.

(Id. at 118-23).

He purchased the trailer that

was removed from his property by NCE from her. (Id.).

Arrington

believes the Winter Street address is owned (or at least occupied)
by a Caucasian, David Diggins. (Id. at 128-29).

Arrington admits

that some enforcement action has been taken by NCE against this
property, but claims the property remains in violation. (Id. at
147-48).

Arrington claims the 3711 Bar Street property is also

occupied, if not owned, by Caucasians.

His photo shows a red Ford

truck parked in the grass in 2013 in violation of the Code.
(Arrington Dep. at 130-31; Ex. J).
property

on

Calumet

near

Pettit

Arrington also referenced a
that

he

claims

has

had

an

improperly parked vehicle in the grass for many years. (Id. at
136-37).
In response to these allegations, NCE Director Joyner looked
at NCE’s records to determine the enforcement actions, if any, that
NCE has taken against these properties. (Joyner Aff. ¶ 12). NCE’s
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records confirm that enforcement actions have been taken against
all but one of the identified properties.

(Id.).

The only

exception is 4336 Calumet Street, which does not appear to be a
valid address.

(Id.).

According to Joyner, it appears that

Calumet begins in the 4500 block.

(Id.).

Joyner chronicles the enforcement action taken against each of
these properties. (Id. ¶¶ 13-16). Enforcement at 3420 S. Lafayette
began on October 8, 2009, when five vehicles were tagged and the
owners were given twenty days to show they were operable. Upon
reinspection on October 29, 2009, three of the vehicles were towed,
the other two were found to no longer be in violation.

Three

vehicles were tagged on February 27, 2013, but upon reinspection on
March 20, 2013, all three vehicles were gone. In January, 2015, two
vehicles were tagged, but upon inspection on February 13, 2015, the
vehicles were gone.

On March 12, 2015, one vehicle was tagged but

on inspection on June 2, 2015, the vehicle was gone.

On December

2, 2016, tags were placed on three vehicles and a motorcycle. Upon
reinspection on December 21, 2016, the motorcycle and one vehicle
were gone. Another vehicle was scheduled for tow but due to
weather, the tow had to be extended to January 6, 2017. (Joyner
Aff. ¶ 13).
At 3514 S. Lafayette, on August 25, 2009, NCE records show
that a notice of violation was sent.

NCE records show that the

property was brought to code November 3, 2009.
-18-

On March 18, 2011,

a vehicle was tagged, but on reinspection on March 25, 2011, the
vehicle was shown operable. On November 13, 2012, the same vehicle
was tagged again, but upon reinspection, the vehicle was gone.

On

September 26, 2014, a minimum housing case was brought and there
were several order to repair hearings after which the owner brought
the home to code. (Joyner Aff. ¶ 14).
NCE records show that, in December 2009, the property at 4122
Winter was posted for weeds.
was served.

In 2015, a courtesy notice of an OTA

Upon reinspection, the owner had removed the debris,

abating the cited violation. In December, 2015 notice was given of
several oversized vehicles on the property but upon reinspection,
the vehicles had been removed.

(Joyner Aff. ¶ 15).

At 3711 Barr, NCE records show that an OTA was issued on March
25, 2011, and the property was cleaned up by the owner upon
reinspection on April 29, 2011. Another OTA was issued on July 2,
2014, but when reinspected, the property had been cleaned up.

On

the same date the OTA was issued, a 20-day tag was placed on a red
Ford pickup.
gone.

Upon reinspection on July 23, 2014, the vehicle was

On October 5, 2015, a minimum housing case was begun and, as

of May 31, 2016, the owner had brought the house to code. (Joyner
Aff. ¶ 16).

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ANALYSIS
Arrington’s Claims Against the City of Fort Wayne, Mayor Henry, and
John Caywood
To prevail on a Section 1983 claim, a plaintiff must show that
he was deprived of a right secured by the Constitution or laws of
the United States and the deprivation was caused by a person acting
under color of state law.

Reynolds v. Jamison, 488 F.3d 756, 764

(7th Cir. 2007).
Procedural Due Process Claims
Arrington’s pro se complaint does not make it clear whether he
intended

to

allege

that

Defendants

violated

his

Fourteenth

Amendment due process rights, but the Defendants have addressed
this claim and, for that reason, this Court will too.
The basic rights guaranteed by constitutional
due process are notice of the intended adverse
government action and an opportunity to be
heard in response, although more elaborate
procedural rights - such as the right to
present
evidence,
to
confront
adverse
witnesses, and to be represented by counsel may apply in cases in which vital private
interests are at risk.
Simpson v. Brown Cnty., 860 F.3d 1001, 1006 (7th Cir. 2017).
To prevail on a due process claim, Arrington must show that he
had a protected property interest, was deprived of that interest by
an individual acting under color of state law, and was denied due
process.
2012).

Booker-L v. Superintendent, 668 F.3d 896, 900 (7th Cir.

Defendants have pointed to several procedures that are in

place to ensure that individuals such as Arrington have notice and
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an opportunity to be heard prior to property being taken. In fact,
Defendants outline an extensive procedure that took place prior to
Arrington’s property being seized.

The procedures in place to

protect Arrington’s property rights went well beyond what is
mandated by the Due Process Clause.

Id. (“Governments may, of

course, offer procedural protections that exceed the constitutional
minimum through statute or administrative rule.

Many state and

local licensing schemes provide procedural protections that are far
more

elaborate

than

due

process

requires.”).

In

response,

Arrington has not pointed to any policy or procedure that he claims
violated his due process rights.

Because there is no evidence to

support a due process claim against the City, it must be dismissed.
The claims against Mayor Henry and Caywood in their official
capacities must also fail, because “[a]n official capacity suit is
tantamount to a claim against the government entity itself.”
Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007)(citations
omitted); see McLaughlin v. Freeman, No. 2:08-CV-58-PRC, 2013 WL
5407041, at *8 (N.D. Ind. Sept. 26, 2013).
As

for

any

individual

capacity

claims

Arrington

may

be

asserting against Mayor Henry or Caywood, those claims fail for the
same reasons that the official capacity claims fail: there is
simply

no

evidence

that

Arrington

was

denied

due

process.

Additionally, Arrington has pointed to no evidence that Mayor Henry
was involved in this matter in any way.
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Furthermore, Mayor Henry

is not liable merely because he supervises the individuals involved
in this incident.

See Zimmerman v. Tribble, 226 F.3d 568, 574 (7th

Cir. 2000) (“However, § 1983 does not allow actions against
individuals merely for their supervisory role of others.”).
Equal Protection Claims
Arrington

believes

that

the

NCE

targeted

him

for

an

enforcement action because of his race, in violation of the
Fourteenth Amendment’s Equal Protection Clause. To succeed on this
claim, Arrington must produce some evidence that a “state actor has
treated him differently from persons of a different race and that
the actor did so purposefully.”

Xiong v. Wagner, 700 F.3d 282, 295

(7th Cir. 2012)(quoting Billings v. Madison Metro. Sch. Dist., 259
F.3d 807, 812 (7th Cir. 2001)); see also Dunnet Bay Const. Co. v.
Borggren, 799 F.3d 676, 697 (7th Cir. 2015)(“To establish liability
for an equal protection violation, a plaintiff must establish that
the defendant acted with a discriminatory purpose and discriminated
against him because of his membership in an identifiable group.”).
Arrington pointed to several properties owned or occupied by
Caucasians that Arrington alleges also had code violations.

He

alleged that no action was taken against these individuals because
of their race.
enforcement
Arrington

Defendants, however, have produced evidence that

action

points

was

to

taken

except

at

one.

all

of

That

the

properties

address

was

that

invalid.

Furthermore, the City and Caywood have produced evidence that race
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is not a factor in their enforcement decisions, and it played no
role in their decision to take action against Arrington. Arrington
offers no evidence in response.
claims

against

the

City,

Accordingly, his equal protection

Mayor

Henry,

and

Caywood

must

be

dismissed.

Arrington’s Claims against Lunz and Kelley
Arrington’s claims against both Lunz and Kelley also fail.
Lunz has produced evidence that its employees entered the property
on March 10, 2014, and removed only the specific items of property
they were told to remove at the direction of the City.
¶¶ 4-5).

(Lunz Aff.,

At all times on March 10, 2014, Lunz acted pursuant to

the court order and under the supervision and direction of the
City.

(Id.).

Arrington has produced no evidence disputing these

facts.
Kelley has produced evidence that, in removing Arrington’s
vehicles, it acted at the City’s direction.

In fact, Arrington

conceded this at his deposition, and he has produced no evidence
suggesting otherwise in response to Kelley’s summary judgment
motion.

(Pl. Dep. at 189-91).

Additionally, Arrington has not established that either Lunz
or Kelley were acting under color of state law.

Reynolds, 488 F.3d

at 764. This would require a showing that Lunz or Kelley conspired
with a state actor to deprive him of his rights.
-23-

See Brokaw v.

Mercer Cnty., 235 F.3d 1000, 1016 (7th Cir. 2000)(“While a private
citizen cannot ordinarily be held liable under Section 1983 because
the statute requires action under color of state law, if a private
citizen conspires with a state actor, then the private citizen is
subject to Section 1983 liability.”).

Arrington has produced no

evidence that either Lunz or Kelley conspired with the City to
deprive him of his constitutional rights.

Collateral Estoppel and res judicata
Each Defendant has argued that Arrington’s claims are barred
by collateral estoppel and res judicata.2
issues is rather conclusory.

The briefing of these

Because collateral estoppel and res

judicata are not jurisdictional in nature, the Court need not
address them here.

See Rekhi v. Wildwood Indus., 61 F.3d 1313,

1317 (7th Cir. 1995)(“Collateral estoppel is a defense, and not a
jurisdictional one...”).

Each of Arrington’s federal claims fail

on the merits, and collateral estoppel and res judicata need not be
addressed.

2
It is unclear whether the City of Fort Wayne, Mayor Henry, and Caywood
are arguing that all claims are barred by collateral estoppel and res judicata
or just the theft claim. Their arguments are directed only at the theft
claim, but they appear to be asserting collateral estoppel and res judicata as
to all of Arrington’s claims.

-24-

Theft in Violation of I.C. § 35-43-4-2(a)
Arrington has alleged that each Defendant committed theft in
violation of Indiana Code § 35-43-4-2(a) when they removed the
items from his property.

Because the federal claims are being

dismissed, the court will remand this case to state court for
further proceedings. See Doe-2 v. McLean Cnty. Unit Dist. No. 5 Bd.
of Dirs., 593 F.3d 507, 513 (7th Cir. 2010) (“Ordinarily, when a
district court dismisses the federal claims conferring original
jurisdiction

prior

to

jurisdiction

over

any

trial,

it

state-law

relinquishes
claims

under

supplemental
28

U.S.C.

§ 1367(c).”).3

CONCLUSION
For the reasons set forth above, Defendant Lunz Excavating,
Inc.’s Motion for Summary Judgment (DE #50), Defendant Kelley
Towing’s Motion for Summary Judgment (DE #52), and Defendants, City
of Fort Wayne and John Caywood’s Motion for Summary Judgment (DE
#56) are GRANTED.

Arrington’s federal claims are DISMISSED WITH

PREJUDICE, and this case is REMANDED to Allen Superior Court for
further proceedings.
DATED: September 27, 2017

/s/ RUDY LOZANO, Judge
United States District Court

3
This Court has an additional jurisdictional concern with regard to
Arrington’s theft claim, making remand particularly appropriate here. This
Court is concerned that the theft claim may be barred by the Rooker-Feldman
doctrine. Unfortunately, none of the Defendants raised this issue. RookerFeldman generally bars a district court from exercising jurisdiction over
“cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of that judgment.” Exxon Mobil
v. Saudi Basic Indus., 544 U.S. 280, 284 (2005); see also Homola v. McNamara,
59 F.3d 647, 650 (7th Cir. 1995).

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