CALLON et al v. COX et al

Filing 85

ENTRY on Defendants' Motion for Summary Judgment - Defendants' Motion for Summary Judgment (Dkt. 66 ) is GRANTED in part with respect to the Plaintiffs' Fourth Amendment claims, their procedural due process claims, and the state law claim of false imprisonment, but DENIED in part with respect to the Plaintiffs' substantive due process claim and Monell claim. Signed by Judge Tanya Walton Pratt on 1/25/2012.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

WILLIAM CALLON, and
SHANNON CALLON,
Plaintiffs,
v.
BETH ANN COX,
THE TOWN OF BARGERSVILLE,
INDIANA and NANCY KEHL,
Defendants.

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Case No. 1:09-cv-01473-TWP-MJD

ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This case comes before the Court on Defendants’ Motion for Summary Judgment.
Plaintiffs William Callon (“William”) and Shannon Callon (“Shannon) (collectively, “the
Callons”), filed a suit in this Court against Defendants Beth Ann Cox (“Cox”), Nancy Kehl
(“Kehl”), and the Town of Bargersville, Indiana (“the Town”) (collectively, “Defendants”)
alleging violations of their constitutional rights under 42 U.S.C. § 1983 and a state law claim for
false imprisonment. In August 2008, the Town brought a small claims action against the Callons
for failure to pay their utility bill. According to the Town, the Callons owed approximately
$409.60 to the Town plus $99.00 in court costs. The Callons paid the utility bill and the court
costs to the county clerk shortly after appearing in a proceedings supplemental hearing.
However, due to miscommunications between the Town and the county clerk’s office, coupled
with oversight failures attributable to Cox and Kehl, the Town never received the court costs
which had been paid by the Callons. This led to the issuance of body attachment warrants for the
Callons by a magistrate judge. The Callons were subsequently arrested and released on the same

day after paying a bond. Shortly after their release, the Town acknowledged the error and issued
a satisfaction of judgment and requested a release of the Callons’ bond money.
Not surprisingly, the Callons filed this lawsuit against Cox, the Town’s suit
representative, Kehl, the administrative assistant to the utility superintendent, and the Town of
Bargersville.

Specifically, the Callons in their amended complaint allege the Defendants

violated their Fourth Amendment rights when they knowingly or with reckless disregard for the
truth, misrepresented information to a magistrate judge in seeking body attachment warrants. In
addition, the Callons allege that their due process rights under the Fourteenth Amendment were
violated based on the nature of their arrest and the Town’s failure to release the bond money and
file a satisfaction of judgment in a timely manner. The Callons further argue that the Town is
liable pursuant to § 1983 because its practice of collecting unpaid utility bills through body
attachment warrants caused them to suffer a constitutional deprivation. Lastly, the Callons
contend that Defendants are liable under the state law tort for false imprisonment. In countering
these allegations, Defendants contend that their actions did not constitute a violation of the
Fourth Amendment or of the Fourteenth Amendment. Moreover, Defendants argue the Callons’
state law claim is barred by immunity. For the reasons set forth below, Defendants’ Motion for
Summary Judgment (Dkt. 66) is GRANTED in part and DENIED in part.
I. BACKGROUND
A.

Town of Bargersville’s Municipal Utility Service
The Town owns and operates a municipal utility which provides electric, water, sewer,

and storm water services to approximately 14,000 residential and business customers in
Bargersville, Indiana. Collection responsibilities for delinquent accounts relating to municipal
utilities are referred to the Town’s suit representative, a position appointed by the town council
to represent the Town in small claims court. Delinquent utility accounts are typically referred to
2

the suit representative by the billing department once the account is closed. In 2005, Cox was
appointed by the town council to the position of suit representative. Cox is responsible for
collection of accounts owed to the Town, including utility accounts where the balance is up to
$1,500.00.1 Prior to Cox’s appointment, she worked as the administrative assistant to the utility
superintendent and assisted the former suit representative in representing the Town in collection
proceedings.

Beyond her role as suit representative, Cox has several years of experience

working in the consumer debt collection industry with various private entities.
In 2006, the Town passed Ordinance No. 2006-05, commonly referred to as the “sewer
rate ordinance,” which provides as follows:
The rates and charges may be billed to the tenant or tenants occupying the
property served, if requested in writing by the owner, but such billing shall in no
wise [sic] relieve the owner from liability in the event payment is not made as
herein required.
(See Dkt 77-7). Pursuant to this ordinance, the Town may collect utility bills from a given tenant
with the permission of the owner/landlord; however, the owner/landlord remains liable for any
sewer bills that remain unpaid. This ordinance also appears to be in accordance with Indiana
state law, which permits sewage fees to be “payable by the owner” of each property connected to
the sewer system.

See Ind. Code § 36-9-23-25(c).

Accordingly, since 2006, Cox has

implemented two types of methods for collecting fees on delinquent utility accounts. Under the
first method, Cox attempts to contact utility customers in an attempt to arrange payment
schedules for their delinquent accounts instead of filing small claims suits. However, Cox will
file a suit if satisfactory arrangements are not made or the customer fails to make the agreed
upon payments. Under the second method, Cox can choose to collect the sewer and water costs
attributable to the tenants from the owner/landlord of the property pursuant to the Town’s
1

Cox is also responsible for collecting other accounts for the Town beyond utility accounts, such as bills resulting in
damage to property. (See Dkt. 73-1 at 5.)

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ordinance. However, under certain circumstances, Cox may inadvertently collect utility fees
from the owner/landlord after customers have already made payment to the Town to satisfy any
court judgments against them. In these unique cases, Cox typically reimburses the money
initially collected from the owner/landlord by the Town.
B.

Collection Proceedings Against the Callons
From August 2006 to approximately June 2008, the Callons rented a residential home in

Bargersville, Indiana, located at 166 Harmony Hill Road, a residential dwelling that is part of
Harmony Hills Properties. During this period, William was self-employed and worked in the
real estate industry and performed floor installation, while his wife, Shannon, worked for local
businesses in Bargersville. However, despite the Callons’ attempts to timely pay their monthly
bills, they eventually fell behind in their payments, including their utility bills. In June 2008, the
Callons decided to move out of the Harmony Hills residence when they agreed to separate as a
married couple. Utility records indicate that the Callons’ account closed on June 19, 2008.
The Town brought a collection action against the Callons for a delinquent utility account
with an overdue balance of $406.90. In August 2008, the Town obtained a judgment of $406.90
plus $99.00 in court costs for a total of $505.90. On September 17, 2008, a hearing was held at
the Johnson Circuit and Superior Court where the Callons admitted to Magistrate Judge Richard
Tandy that they owed the total judgment; however, they did not pay it at this initial hearing. The
court scheduled proceedings supplemental on October 31, 2008 and ordered the Callons to
appear at this second hearing. During the second hearing in front of Magistrate Judge Tandy in
October, the Callons indicated they would pay the full judgment that afternoon and inquired
about the proper procedure for paying. Cox, the suit representative, informed them that they
could either pay her or the county clerk, and if they paid her she would file a satisfaction of

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judgment the following Monday.

Before the end of the hearing, Magistrate Judge Tandy

emphasized to the Callons that regardless of how they paid the judgment, they needed to inform
Cox so that she could file a satisfaction of judgment. At the end of the hearing, Magistrate Judge
Tandy scheduled another proceeding supplemental for February 20, 2009 and informed the
Callons they did not need to appear in court in February — if they paid the full judgment.
Shannon paid the full judgment in the amount of $505.90, which included the court costs
of $99.00, to the county clerk’s office on the afternoon of October 31, 2008. Shannon received a
handwritten receipt from the county clerk’s office acknowledging her payment.

However,

neither Shannon nor William informed Cox that they had paid the total civil judgment to the
county clerk’s office. On November 5, 2008, unaware of the Callons’ payment, Cox was
informed that outstanding sewer liens were placed on rental properties managed by Harmony
Hill Properties. Pursuant to the Town’s practice of collecting bills, Cox decided to collect sewer
payments from Michael Ennis, the landlord of Harmony Hills Properties. An amount of $212.34
submitted by Ennis was posted to the Callons’ delinquent utility account on November 11, 2008.
Between November 11 and November 19, 2008, Cox received a check for $406.90 from the
county clerk, representing the unpaid utilities portion of the Callons’ utility bill. Notably, the
check did not contain additional fees to cover the court costs. At this time, Cox concluded that
the Callons had not paid the court costs because normally the county clerk would send a check to
Cox covering the entire judgment amount including court costs. Cox did not contact the county
clerk’s office to verify whether or not the court costs were still owed by the Callons. Upon
receipt of this payment by the county clerk, Cox initially refunded $212.34 to the landlord. The
refund was in accordance with Cox’s collection practices; however, she did not inform the

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Callons of this specific action at that time. The remainder of the county clerk’s payment was
applied to the Callons’ outstanding balance on their account on November 19, 2008.
Between December 3, 2008 and March 3, 2009, Cox went on medical leave and left her
responsibilities as suit representative to Kehl. According to Cox, it was common for the
individuals in Kehl’s position to assist the suit representative in court proceedings. Before going
on leave, Cox informed Kehl, based on her information, that the Callons still owed court costs.
However, she did not contact the clerk to verify whether court costs were still owed. Before the
February 20, 2009 hearing, Kehl contacted the utility billing department to see if the court costs
had been paid; however, Kehl did not check with the county clerk’s office to verify the court
costs had not been paid. On February 20, 2009, the Callons did not appear in court since they
had paid the judgment in full on October 31, 2008. Kehl informed Magistrate Judge Tandy that
the $99.00 in court costs were still due and that she had not excused the Callons from having to
appear in court. After that representation, Magistrate Judge Tandy issued body attachments for
the Callons.
C.

Enforcement of the Body Attachments
On February 27, 2009, Shannon received notices of body attachments for her and

William. Shannon testified that once she received the notices she attempted to the call the
Town’s utility office; however, she did not get an answer. It is unclear from the record what
time Shannon placed the call.2 Because Shannon could not reach anyone at the county clerk’s
office, she called the utility’s office and spoke with Kehl. Kehl said there was nothing she could
do about the situation until Cox returned to work (on March 3, 2009). Shortly after speaking
with Kehl, Shannon drove to the utility office to speak with Kehl in person. When Shannon
2

The record indicated that the county clerk’s office as well as the Johnson Circuit and Superior Court close at 4:30
p.m. on the weekdays. (See Dkt. 73-26 at 1.)

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arrived at the utility office, she was understandably upset. During the conversation, Shannon
showed Kehl her handwritten receipt from the county clerk’s office. After seeing the receipt,
Kehl called Cox at home to inform her of its existence. Because Cox was on medical leave, she
informed Shannon she could not assist her until she returned to the office the following week.
While she did not mention it in her deposition, in a subsequent affidavit Kehl indicates that she
did not contact the clerk’s office or the magistrate judge’s office because she erroneously
believed those offices closed at 4:00 p.m.
The following day, February 28, 2009, local authorities came to the Callons’ residence
and arrested them pursuant to the body attachments. The Callons were taken to the Johnson
County jail and were detained for a period of time.3 The Callons subsequently paid $100.00 each
in bond and a $5.00 processing fee with the assistance of William’s parents.

Upon an

investigation launched by Cox when she returned from medical leave, she discovered that the
county clerk had changed the procedure regarding court costs. Under the new procedure, the
county clerk would remit the judgment amounts received, while withholding court costs. Cox
testified in a deposition that based on her knowledge, the clerk had never previously withheld
court costs and would normally send entire judgments, including courts costs, to the Town’s
utility office.

Subsequently, Cox issued a satisfaction of judgment on the Callons’ civil

judgment and requested a release of their bond money in March 2009. Additional facts are
added below as needed.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
3

The parties dispute the duration of the Callons’ actual detainment by the police. The Plaintiffs claimed they were
detained for approximately two hours, while the Defendants claim they were detained for no more than an hour.
(See Dkt. 67 at 6.)

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affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court
reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in
search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). “[N]either the mere existence of some alleged factual
dispute between the parties nor the existence of some metaphysical doubt as to the material facts
is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
III. DISCUSSION
The Callons allege the Defendants violated their Fourth Amendment rights and their due
process rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, when they were
arrested by local authorities based on incorrect information. Specifically, the Callons argue that
Cox and Kehl knowingly and recklessly misrepresented to the magistrate judge that the Callons
failed to pay their court costs warranting the issuance of body attachments. Moreover, the
Callons assert that the Defendants’ actions constitute a substantive due process violation under
the Fourteenth Amendment. In addition, the Callons contend that the Town is liable under §
1983 because its collection policy of seeking body attachments as a means to collect unpaid
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utility bills from customers resulted in a constitutional deprivation on the part of the Callons.
The Callons further allege additional state law claims against the Defendants. The Court will
address each of these issues in turn.
A.

Callons’ Constitutional Claims Against Cox and Kehl
The Callons claim that there is sufficient evidence establishing the existence of genuine

issues of material fact, which precludes the granting of summary judgment in favor of
Defendants.

Specifically, the Callons allege both Cox and Kehl acted with intentional or

reckless disregard for the truth in obtaining body attachments against them in violation of their
Fourth Amendment rights.

Defendants counter by arguing that Cox and Kehl did not act

intentionally, knowingly, or with reckless disregard for the truth when they did not have any
reason to believe that the Callons initially did not pay their court costs as ordered by the court.
The Defendants also argue that Cox and Kehl are entitled to qualified immunity.
The doctrine of qualified immunity protects government officials performing
discretionary functions. Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). Specifically,
qualified immunity shields officials “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Importantly, when
qualified immunity applies, a defendant is not merely entitled to a defense from liability; he is
entitled not to stand trial. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Leaf v. Shelnutt,
400 F.3d 1070, 1080 (7th Cir. 2005). In determining whether qualified immunity will apply to
shield a government official from suit, a court undertakes a two-step inquiry. First, a court must
address a threshold question: “whether the plaintiff’s allegations make out a deprivation of a
constitutional right?” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010). If it is determined

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that no constitutional right would have been violated based on the facts alleged, there is no
necessity for further inquiries concerning qualified immunity. Kraushaar v. Flanigan, 45 F.3d
1040, 1049 n.4 (7th Cir. 1995). If, however, the alleged allegations make out a constitutional
violation, the court must proceed to step two of the inquiry and determine “whether the right was
clearly established.” McAllister, 615 F.3d at 881. As the Supreme Court has set forth, a right is
clearly established when “[t]he contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640;
see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (concluding that district courts have
discretion in addressing the two step inquiry in any order in light of the circumstances of the case
at hand). Thus, in the case at hand, the first issue for the Court is to determine whether based on
the alleged allegations, the officials’ actions violated the Callons’ constitutional rights under the
Fourth Amendment or the Fourteenth Amendment.
1.

Fourth Amendment Issue

The Callons assert federal constitutional claims against the Defendants pursuant to 42
U.S.C. § 1983. Title 42 U.S.C. § 1983 creates a federal cause of action for “the deprivation,
under color of [state] law, of a citizen’s rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994).
Because § 1983 is not itself a source of substantive rights, but a means for vindicating federal
rights elsewhere conferred, “the first step in any [§ 1983] claim is to identify the specific
constitutional right infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994); see also Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). The Callons first argue that Kehl’s false assertions
to the magistrate judge that the Callons’ court costs were unpaid along with Cox and Kehl’s

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failure to take action to recall the body attachments after they were issued violated their Fourth
Amendment rights.
The standard for challenging the validity of an affidavit of an arrest warrant (or in this
case the body attachments) was established by the United States Supreme Court in Franks v.
Delaware, 438 U.S. 154 (1978). In Franks, the Supreme Court held that a Fourth Amendment
violation occurs when an affiant in his warrant affidavit makes a false statement, or omits a
material fact, either knowingly, intentionally or with reckless disregard for the truth, where such
information is necessary to a magistrate’s probable cause determination. Id. at 155-56; see
United States v. Norris, 640 F.3d 295, 300-01 (7th Cir. 2011) (citing Franks, 438 U.S. at 15556); United States v. Taylor, 471 F.3d 832, 838-39 (7th Cir. 2006); see also Parkey v. Sample,
623 F.3d 1163, 1165 (7th Cir. 2010) (stating that to establish a Franks violation, an individual
must show that the affiant: 1) knowingly or intentionally or with reckless disregard for the truth
made misstatements to the magistrate judge and 2) demonstrate that the statements were
necessary to the magistrate judge’s probable cause determination).

While allegations of

deliberate falsehood or of reckless disregard for the truth can trigger a Fourth Amendment
violation, mere “allegations of negligence or innocent mistake are insufficient.” Herring v. U.S.,
555 U.S. 135, 145 (2009) (citing Franks, 438 U.S. at 171). However, “[t]here is…a presumption
of validity with the affidavit supporting [an arrest warrant] or a search warrant.” Franks, 438
U.S. at 171; see also Haywood v. City of Chi., 378 F.3d 714, 719 (7th Cir. 2004). Thus, for the
Callons to rebut this presumption and survive summary judgment, they must set forth evidence
that Cox or Kehl “knowingly or intentionally or with reckless disregard for the truth” made
misstatements to the magistrate judge and show the statements were necessary to the magistrate

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judge’s probable cause determination in issuing the body attachments.4 Beauchamp v. City of
Noblesville, 320 F.3d 733, 742 (7th Cir. 2003); see also Parkey, 623 F.3d at 1165.
a.

Claim Against Kehl

Under the framework set forth in Franks, the Court must first determine whether a
reasonable jury could conclude that Cox or Kehl made false statements to the magistrate judge
intentionally or with reckless disregard for the truth. See Parkey, 623 F.3d at 1165. The Seventh
Circuit has noted that “a ‘reckless disregard for the truth’ is demonstrated by showing that the
officers entertained serious doubts as to the truth of their statements, had obvious reasons to
doubt the accuracy of the information reported, or failed to inform the judicial officer of facts
they knew would negate probable cause.” Beauchamp, 320 F.3d at 743 (citing United States v.
Whitley, 249 F.3d 614, 621 (7th Cir. 2001)); see also United States v. Souffront, 338 F.3d 809,
822 (7th Cir. 2003) (stating that in order to prove deliberate falsehood or reckless disregard for
the truth, there must be “direct evidence of the affiant’s state of mind or inferential evidence that
the affiant had obvious reasons for omitting [material] facts” from the affidavit).
The Callons claim Kehl made false assertions during the February 20, 2009 hearing in
front of the magistrate judge, which were material to the court’s finding of probable cause.
While Kehl never actually submitted a warrant application with the magistrate judge, her verbal
assertions to the judge had the same effect of conferring the basis for probable cause because of
the similarity of body attachments to arrest warrants. See Montgomery v. Morgan Cnty., 2008
WL 596068, at *8 (S.D. Ind. Feb. 29, 2008) (treating a civil order of apprehension with the same
4

In the Southern District of Indiana, body attachment warrants issued by Indiana state courts for failure to appear at
court proceedings have been treated similarly to arrest warrants. See Montgomery v. Morgan Cnty., 2008 WL
596068, at *7-8 (S.D. Ind. Feb. 29, 2008) (treating a civil “order for apprehension and return” of the plaintiff issued
by an Indiana state court as an arrest warrant); Hankins v. City of Rushville, 2005 WL 2100068, at *2 (S.D. Ind.
Aug. 30, 2005) (treating a body attachment order issued by an Indiana state court for plaintiff’s failure to appear at a
child support hearing as an arrest warrant). Therefore, the Court will treat the body attachment orders issued by the
Johnson Circuit and Superior Court with the same authority as arrest warrants, even though they were the result of a
civil, rather than criminal, proceeding.

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authority and effect as an arrest warrant when “they both have the intended legal effect of
authorizing law enforcement officers to locate and bodily attach or apprehend an individual”)
(emphasis added); United States v. Roth, 201 F.3d 888, 893 (7th Cir. 2000) (“Probable cause
requires only a probability of a substantial chance of criminal activity not an actual showing of
such activity.”) (internal citation omitted).

However, before reaching the probable cause

analysis pursuant to Franks, the Callons must show that Kehl made her assertions either
intentionally or with reckless disregard for the truth.
Reviewing the record in the light most favorable to the Callons, they have not set forth
sufficient evidence to show that the Defendants acted intentionally or knowingly. Thus, the
Callons’ Fourth Amendment claim rests on their assertion that Kehl’s false statements to the
magistrate judge were made with a “reckless disregard for the truth.” Specifically, the Callons
claim that Kehl’s statement that “the Callons still owed $99.00 in court cost” at the time of the
hearing, was made with reckless disregard for the truth. To reiterate, the appropriate inquiry is
whether Kehl entertained serious doubts as to the truth of her statement at the time she made it.
Beauchamp, 320 F.3d at 743. While the Defendants concede that the information that Kehl
presented to the magistrate judge at the hearing was later determined to be incorrect, the
Defendants argue Kehl had no reason to believe these assertions were untrue on February 20,
2009. (See Dkt.67 at 13; Kehl Aff., Dkt. 68-27 at ¶8). Accordingly, the Defendants argue that
Kehl’s actions did not constitute a Franks violation. The Court agrees.
In this case, Kehl had no reason to know or doubt Cox’s initial assertion to her that the
Callons’ court costs remained unpaid when she participated in the February 20, 2009 hearing.
Kehl spoke with Cox before she went on medical leave and Cox informed her that the court costs
were still owed. She also contacted the utility billing department which informed her that the

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court costs were still due. Additionally, there is no evidence in the record to indicate that she
entertained serious doubts about the truthfulness of the statements she made on February 20,
2009.

Because she believed her assertions to the magistrate judge to be truthful, Kehl’s

statements were not made intentionally or with reckless disregard for the truth. See Zambrella v.
United States, 327 F.3d 634, 639 (7th Cir. 2003) (finding that an officer did not exhibit a reckless
disregard for the truth when his search warrant affidavit contained two factual errors, he believed
to be true at the time, which were later discovered to be incorrect). At most, Kehl’s failure to
contact the county clerk’s office regarding the status of the Callons’ unpaid court cost fee was
negligence, which is not enough to support a Franks violation.5 See United States v. A Residence
Located at 218 Third Street, 805 F.2d 256, 258 (7th Cir. 1986) (recognizing that mere negligence
by the affiant does not constitute reckless disregard for the truth). The Callons have thus fallen
short of establishing that Kehl exhibited a reckless disregard for the truth to support a Franks
violation.6
b.

Claim Against Cox

The Callons also claim that Cox’s actions violated their Fourth Amendment rights, when
she declined to take corrective steps to have the body attachments recalled once she became
aware of the existence of a receipt of payment for the court costs. A review of the relevant facts
is instructive. On February 27, 2009, Shannon went to the Town’s utility office and spoke with
Kehl about the body attachment notices she and William received earlier in the day. At some
point during the heated conversation, Shannon showed Kehl a handwritten receipt from the

5

In their briefing, Defendants concede that if Kehl would have checked with the county clerk’s office she would
have learned of the paid court costs; however, the Defendants argue that at most, her failure to call the county
clerk’s office was due to negligence. (See Dkt. 67 at 13.)

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Because the Callons failed to establish the first prong of the Franks analysis, as it relates to Kehl’s assertions to the
magistrate judge, the Court does not find it necessary to analyze the materiality prong under Franks.

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clerk’s office evidencing payment of the utility bill, including the court costs. After seeing the
receipt, Kehl called Cox to inform her of its existence. It is unclear from the record whether or
not Cox became aware of the receipt before the clerk’s office and the court closed for the day.7
Based on these circumstances, the Callons argue that Cox acted recklessly by failing to take
actions to recall the body attachments at that time, a practice she normally implemented once she
received payment on a delinquent account. (See Cox Aff., Dkt. 68-1 at 12.) In support of their
argument, Defendants contend that Franks imposes a continuing obligation on an individual to
apprise the warrant issuing judge of all relevant information learned after the issuance of a
warrant.
However, the Callons present no support for this legal standard beyond referring the
Court to the holding in Franks. In the Court’s view, the Callons have not thoroughly developed
this argument. In addition, the Callons have misinterpreted the holding of the Supreme Court in
Franks as it applies to this case. The holding in Franks is limited to an individual’s challenge of
the validity of the underlying affidavit of an arrest warrant as it relates to false statements or
omissions that create a falsehood in applying for a warrant, not after its issuance.

See

Beauchamp, 320 F.3d at 743 (“In determining whether information submitted to a judicial officer
in support of a warrant application was sufficient to establish probable cause, we look only at
what the officer knew at the time he sought the warrant, not at how things turned out in
hindsight.”) (emphasis added). Traditionally, in Fourth Amendment cases involving a challenge
of the sufficiency of an affidavit based on an officer’s assertions, the standard applied is the same
as discussed above. See id.; see also Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (“An

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The Callons have submitted affidavits from both the former county clerk and the magistrate judge attesting to the
fact that both locations were open until 4:30 p.m. on February 27, 2009. (See Pltf. Resp., Dkt. 72 at 10-11.) The
Defendants counter by claiming that even if Shannon arrived at the utility office before 4:30 p.m., by the time Cox
received the information it was likely past 4:30 p.m. (See Def. Brief, Dkt. 67at 5.)

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assertion is made with reckless disregard when “viewing all the evidence, the affiant must have
entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the
accuracy of the information he reported.”).
Applying these principles to the facts of this case, Cox had no reason to doubt the truth of
the statements she made to Kehl two months prior to the February 20, 2009 hearing. The
Callons have not provided any evidence to suggest that Cox had previous knowledge of the
county’s changed practice to withhold court costs rather than remitting them to the Town.
Additionally, the Callons did not set forth any evidence that Cox deviated from her common
collection practices, when she did not call the county clerk to inquire about the status of the
Callons’ court costs. Moreover, the Callons did not present any evidence that Cox would have
been able to contact the court to recall the body attachments in light of her physical condition,
which required medical leave.

Therefore, no reasonable jury could conclude that Cox’s

representations to Kehl or her actions subsequent to the issuance of the body attachments
constituted a reckless disregard for the truth.8 Accordingly, Defendants are entitled to summary
judgment on the Plaintiffs’ Fourth Amendment claims.
2.

Fourteenth Amendment Issues

The Callons next allege that the Defendants’ actions resulting in their arrest constituted
constitutional violations of their rights under the Fourteenth Amendment. Specifically, the
Callons assert a number of substantive due process and procedural due process claims against
Defendants. The Court will address the Callons’ Fourteenth Amendment claims in turn.

8

As discussed previously, because the Callons failed to establish the first prong of the Franks analysis, as it relates
to Cox’s assertions and actions, the Court does not find it necessary to analyze the materiality prong under Franks.

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a.

Procedural Due Process Claims

The Callons assert that the Town’s policy of collecting utility payments from local
landlords and issuing a refund to them after tenants pay their delinquent accounts is a procedural
due process violation. Specifically, the Callons argue that the Fourteenth Amendment requires
the Town to provide them with notice and an opportunity to be heard in a predeprivation hearing.
The Court disagrees.
To establish a procedural due process violation of a property interest, the plaintiff must
show that there is “1) a cognizable property interest; 2) a deprivation of that property interest;
and 3) a denial of due process.” Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004)
(citation omitted). In order to claim a property interest protected by the Fourteenth Amendment,
“a person…must have more than a unilateral expectation of [the claimed interest]. He must,
instead have a legitimate claim of entitlement to it.” Board of Regents of State Colleges. v. Roth,
408 U.S. 564, 577 (1972); see also Fincher v. South Bend Heritage Foundation, 606 F.3d 331,
334 (7th Cir. 2010) (“[A] legitimate claim of entitlement to warrant a due process hearing occurs
only when the statutes of regulations in question establish a framework of factual conditions
delimiting entitlements which are capable of being explored at a due process hearing.”) (internal
quotation and citation omitted).
Here, the Callons have not adequately demonstrated that they are entitled to the money
refunded to their landlord after the Town received the Callons’ initial payment from the county
clerk’s office. The utility bill at issue in this case was in the Callons’ name, and the Callons
admitted at their initial hearing in front of Magistrate Judge Tandy that they owed the utility bill.
Due to the change in the Town’s policy, Cox was not notified of the Callons’ full payment of
their utility bill and court costs; therefore, pursuant with the Town’s ordinance, she collected

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payment from the landlord. See Ind. Code § 36-9-23-25(c). The Callons have not shown that the
relevant local ordinances and state laws entitle them to a refund of money paid by the landlord;
therefore, no predeprivation hearing is required to provide adequate due process. See Kahn, 630
F.3d at 531 (concluding that the Due Process Clause does not require the plaintiff to be given a
predeprivation hearing in a situation where there is no present entitlement).
Moreover, the Callons cannot prevail on their argument that the Town’s failure to timely
release their satisfaction of judgment along with their bond money was a due process violation,
when adequate state law remedies exist. See Michalowicz v. Village of Bedford Park, 528 F.3d
530, 534 (7th Cir. 2008). “To show a failure of due process, a plaintiff might show that state
procedures as written do not supply basic due process or that state officials acted in [a] ‘random
and unauthorized’ fashion in depriving the plaintiff of his protected interest.” Strasburger v.
Board of Education, Hardin County Community Unit Sch. Dist. No. 1, 143 F.3d 351, 358 (7th
Cir. 1998) (quoting Parratt v. Taylor, 451 U.S. 527, 540 (1981)).

However, a property

deprivation as a result of a random and unauthorized event does not constitute a procedural due
process violation when an adequate state law remedy exists that provides for meaningful relief.
Belcher, 497 F.3d at 750. Because the Callons do not challenge the constitutionality of Indiana’s
utility bill collection procedures, the Callons’ argument amounts to a challenge of the “random
and unauthorized” actions of Town officials. Thus, the Town officials’ actions regarding the
release of a satisfaction of judgment and the bond money does not amount to a due process
violation, even if the officials’ actions were random and unauthorized, when an adequate state
law remedy exists.
Looking at the record in the light most favorable to the Callons, the actions of the Town
officials could be characterized as random and unauthorized. Under Indiana law, it requires the

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judgment holder to release judgment upon payment. Ind. Code § 32-35-2-23. In addition, the
Town was required to request from the court an order to release the Callons’ bond money upon
receiving full payment. The Callons did not receive their satisfaction of judgment until March 2,
2009, and the court did not release their bond money until March 26, 2009. Because the Callons
did not receive their judgment or their bond money until March of 2009, the Town officials’
actions in depriving these interests from the Callons were a result of random and unauthorized
conduct. Thus, the Court must now analyze whether state law provides for an adequate remedy.
With regards to adequate state law remedies, the Supreme Court and the Seventh Circuit
have continually recognized that a state is not required to provide a hearing prior to the
deprivation of property when a post deprivation remedy exist. See e.g., Hudson v. Palmer, 468
U.S. 517, 533 (7th Cir. 1984); Parratt, 451 U.S. at 540; Doherty v. City of Chi., 75 F.3d 318, 323
(7th Cir. 1996). “Where state law remedies exist, a plaintiff must either avail herself of the
remedies guaranteed by state law or demonstrate that the available remedies are inadequate.”
Doherty, 75 F.3d at 323; see also Strasburger, 143 F.3d at 358 (“State law remedies in theory
can satisfy due process as well as federal ones, so we require plaintiffs seeking federal remedies
to show the state’s remedies lacking.”).
Upon review of the Callons’ amended complaint as well as their response brief to the
motion at issue, the Callons have not adequately alleged or shown that Indiana’s state law
remedies are lacking. In addition, the Town officials subsequently issued a satisfaction of
judgment and released the Callons’ bond money. If the Callons wanted to recover any portion of
the bond money not initially received by them, they could have availed themselves of a state law
remedy, such as an action for replevin to recover any money owed to them. Ind. Code § 32-352-1. Therefore, the Callons have failed to set forth a procedural due process violation that calls

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for a federal remedy. See Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005)
(finding that the plaintiff’s failure to pursue adequate state law remedies available to him
necessarily eliminates his procedural due process claim). Accordingly, the Callons have failed to
set forth a valid procedural due process claim.
b.

Substantive Due Process Claims

First, the Callons assert substantive due process claim against the Defendants based on
their claim of false arrest. However, this claim is without merit in light of the Seventh Circuit’s
ruling in Patton v. Przybylski, 822 F.2d 697 (7th Cir. 1987) and subsequent cases. In Patton, the
Seventh Circuit recognized that “[i]f…an arrest is upheld when reviewed under the detailed rules
that the courts have developed for determining the lawfulness of an arrest under the Fourth
Amendment, the arrested person will not succeed in challenging the lawfulness of the arrest…by
recasting his challenge in the language of due process rather than search and seizure.” Id. at 699
(quoting McKinney v. George, 726 F.2d 1183, 1187 (7th Cir. 1984)) (internal quotations
omitted). To the extent that the Callons assert a substantive due process claim on the basis of
their false arrest claim, their claim fails as a matter of law on the merits. See e.g., Albright, 510
U.S. at 273-74 (recognizing that petitioner’s malicious prosecution claim must be judged under
the Fourth Amendment, instead of asserting relief under a substantive due process analysis);
Jewett v. Anders, 521 F.3d 818, 827 n.9 (7th Cir. 2008) (“The Supreme Court has cautioned that
a substantive due process claim may not be maintained where a specific constitutional provision
protects the right of allegedly violated—in this case, the Fourth Amendment.”); Gray v. City of
Chi., 159 F. Supp. 2d 1086, 1090 (N.D. Ill. 2001) (determining that the plaintiff’s due process
claim is not viable when there is no substantive right under the Due Process Clause of the
Fourteenth Amendment to be free from arrest except upon probable cause) (citing cases).

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Because the Callons’ false arrest claim is covered by the Fourth Amendment, they cannot also
seek relief under the Fourteenth Amendment.
Next, the Callons allege that the Defendants’ practices of reimbursing a tenant’s landlord
before obtaining a judgment collection from an individual resulting in the imposition of a body
attachment is a violation of substantive due process because the practice “shocks the
conscience.” Stated differently, the Callons argue that Town officials should have known that it
is clearly established that the use of body attachments as an enforcement mechanism in making
tenants pay their delinquent utility bills is a due process violation. The Court agrees.
The Due Process Clause of the Fourteenth Amendment serves as “protection [for an]
individual against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S.
833, 845 (1998). In reviewing government action, “only the most egregious conduct can be said
to be ‘arbitrary in the constitutional sense’,” thus amounting to a constitutional violation. Id. at
846 (quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992). Substantive due process
cases involving alleged official misconduct are analyzed under the “shocks the conscience”
standard. Palka v. Shelton, 623 F.3d 447, 453-54 (7th Cir. 2010) (“The Due Process Clause
protects citizens from abuses of power by executive officials…but official misconduct will rise
to the level of a constitutional violation only if it shocks the conscience.”). Under this principle,
courts have found government officials’ actions to be “conscience-shocking” when they
“evince[] a deliberate indifference to the right of the individual” after having time for reasoned
deliberation in their decisions. King ex rel. King v. East St. Louis Sch. Dist. 189, 496 F.3d 812,
819 (7th Cir. 2007); see e.g., County of Sacramento, 523 U.S. at 851; Armstrong v. Squadrito,
152 F.3d 564, 576-77 (7th Cir. 1998). For deliberate indifference to “amount to criminal
recklessness—the defendant must have known that the plaintiff ‘was at serious risk of being

21

harmed, [and] decided not to do anything to prevent that harm from occurring even though he
could easily have done so.’” Armstrong, 152 F.3d at 577 (quoting West v. Waymire, 114 F.3d
646, 651 (7th Cir. 1997)).
The Court finds Armstrong to be instructive on this issue. In Armstrong, a county sheriff
seized the plaintiff pursuant to a civil body attachment warrant for failure to appear at a child
support enforcement hearing. The plaintiff was held in jail for 57 days, even though the warrant
only authorized a brief detention before the plaintiff would appear before a local court. Id. at
568. The plaintiff’s increased incarceration was due to a processing error related to his case
number and because of this error the court did not know the plaintiff was currently incarcerated.
Id. at 568. Throughout his confinement, the plaintiff continually demanded to be released for his
court date and filled out written inmate requests forms, which the guards refused to accept. Id.
The guards purposefully ignored the plaintiff’s pleas and instead relied upon the incorrect
information in their computer system that was based upon the processing error. Id. The Seventh
Circuit in holding that the defendants violated the plaintiff’s substantive due process rights, given
the draconian length of his incarceration, concluded that the defendants acted with deliberate
indifference. Id. The court reasoned that the application of the deliberate indifference standard
was appropriate when the sheriff and jail officers had adequate time to deliberate and make
unhurried judgments about the plaintiff’s complaints.

Id. at 576-77; see also County of

Sacramento, 523 U.S. at 853 (“[L]iability for deliberate indifference to inmate welfare rests upon
the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the
chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.”).
The reasoning of Armstrong applies squarely to this case. Here, Shannon testified that
she went to the utility office before 4:30 p.m. on February 27, 2009 and showed Kehl her

22

handwritten receipt from the county clerk’s office. As discussed earlier, the county clerk’s office
and the court were open until 4:30 p.m. on that day. Viewing the facts in the light most
favorable to the Callons, as the Court is required to do at this stage, it is evident that Kehl and
Cox both became aware that the Callons had paid the full judgment, due to the existence of
Shannon’s receipt, before the court closed for the day. However, when confronted with this
proof of payment as well as the knowledge that body attachments were issued against the
Callons based on incorrect information, Cox and Kehl did nothing. Instead of quickly faxing a
request to the court to recall the body attachments, a practice Cox has done in the past, she
informed Kehl she could do nothing until she returned from her medical leave the following
week.
Unlike in cases such as County of Sacramento, involving a high speed police chase,
where officers made rapid, spur-of-the-moment decisions, Cox and Kehl had time to make a
deliberate decision on whether to act after learning about the Callons’ receipt. But instead of
acting, both individuals did nothing to prevent the Callons’ arrests even though they knew the
Callons had already paid their full judgment. Furthermore, the Callons had paid the utility bill
and court costs in full on October 31, 2008. Cox and Kehl could have prevented the issuance of
a body attachment by calling the county clerk’s office anytime before the February 20, 2009
hearing, but both failed to do this simple task. “When such extended opportunities to do better
are teamed with protracted failure to even care, indifference is truly shocking.” County of
Sacramento, 523 U.S. at 853; see also Sellers v. Henman, 41 F.3d 1100, 1102-03 (7th Cir. 1991)
(“The only significance of multiple acts of negligence is that they may be evidence of the
magnitude of the risk created by the defendants’ conduct and the knowledge of the risk by the
defendants.”). Thus, the Court concludes that Cox’s and Kehl’s knowledge of the Callons’

23

receipt along with their familiarity with body attachments provide an inference that they knew
the Callons were at a serious risk of being harmed. Accordingly, a reasonable jury could
conclude that Cox’s and Kehl’s failure to contact the county clerk’s office coupled with their
deliberate choice not to take action to recall the body attachments after becoming aware of the
Callons’ payment was a conscious disregard of a serious risk. Therefore, the Callons have
established a genuine issue of material fact on their substantive due process claim that precludes
the granting of summary judgment with respect to that claim.
Having found that an issue of material fact remains as to whether the Defendants’
conduct violates substantive due process, one issue remains: namely, whether Cox and Kehl are
entitled to qualified immunity. Individual defendants may receive qualified immunity if their
conduct does not violate a clearly established right. Armstrong, 152 F.3d at 852 (citing Harlow
v. Fitzgerald, 457 U.S. 800, 815 (1982). The Defendants argue that there is no controlling
precedent or trend in the case law, which would have informed Cox or Kehl that their failure to
inform the court of information garnered after the issuance of a body attachment was a
constitutional violation. Contrary to the Defendants’ assertions, however, Cox and Kehl had
assumed a duty to protect the Callons when they affirmatively placed them in a position of
danger they would not have otherwise faced. See Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir.
1998) (articulating the state-created danger exception; “liability exists when the state
‘affirmatively places a particular individual in a position of danger the individual would not
otherwise had faced’”) (quoting Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993); Estate of
Stevens v. City of Green Bay, 105 F.3d 1169, 1176 (7th Cir. 1997) (recognizing that “where the
state creates a dangerous situation or renders citizens more vulnerable to danger” it implicates
the protections of the Due Process Clause); see also Paine v. Johnson, 2008 WL 4890269, at *

24

14 (N.D. Ill. Nov. 7, 2008) (finding that an officer was not entitled to qualified immunity when
she released an individual with a mental disorder from police custody into a high crime area,
who was later found sexually assaulted and seriously injured). Here, clearly established law
indicated that Cox and Kehl had a duty to act and inform the court or the local authorities about
recalling the body attachments when they learned that their actions placed the Callons in the
dangerous position of losing their liberty, by way of arrest. Therefore, Cox and Kehl are not
entitled to qualified immunity.

Accordingly, the Court GRANTS Defendants’ summary

judgment motion with respect to the Callons’ procedural due process claims, but DENIES
Defendants’ summary judgment motion with respect to the Callons’ substantive due process
claim.
B.

Monell Claim
The Callons also have asserted claims against the Town under Monell v. Department of

Soc. Servs., 436 U.S. 658 (1978). Specifically, the Callons allege that the Town’s practice,
policy, and custom of seeking body attachments against customers with unpaid utility bills were
the moving force of a constitutional violation. Pursuant to Monell, a plaintiff may maintain a §
1983 claim against a municipality by establishing a policy or custom attributable to a municipal
policymaker who was the “moving force” behind the constitutional deprivation. Id. at 694-95.
To accomplish this, the Callons must show that their constitutional rights were deprived by 1) an
express policy, 2) a widespread practice that is well-settled enough to amount to a custom or
usage with the force of law, or 3) an act by an individual with final decision policymaking
authority that caused their injury. Grieveson v. Anderson, 538 F.3d 763, 773 (7th Cir. 2008).
The Callons do not argue that there was an express policy of the Town to seek body
attachments against utility customers to force them to pay their bills. Nor have the Callons

25

alleged that the Town had established a widespread practice which was well settled as to
constitute a custom or usage. Thus, the Callons contend that because Cox was in charge of filing
suits against utility customers and effectively led the collection process, she was the final
decision maker and Monell liability should apply. However, beyond just having discretion to
exercise a particular function, for an official to be liable under Monell she must be responsible
for establishing final government policy on an issue. See Valentino v. Village of South Chi.
Heights, 575 F.3d 664, 675 (7th Cir. 2009). The determination of whether an individual has
policymaking authority is a question of state law, and is to be decided by the court. Id. at 676.
In determining whether an individual is a final decision maker on a particular issue, the courts
look to three factors: (1) lack of constraints by polices made by others; (2) lack of meaningful
review; and (3) a grant of authority to make the policy decision. Wragg v. Village of Thornton,
604 F.3d 464, 468 (7th Cir. 2010).
The Defendants argue that the town council is the final policymaking authority for the
Town. See Ind. Code. § 36-5-2-2. The Court disagrees. The Defendants do not point to any
laws, statutes, or ordinances which place policy setting authority in the hands of the town council
as it relates to Cox’s collection methods and the use of body attachments. To the contrary, all the
evidence suggests that Cox has unfettered discretion to either proceed to file suits and request
body attachments in a given case or make payment schedules with customers outside of court
proceedings. In addition, there is no evidence to suggest that the town council provides
meaningful oversight of Cox’s decision making process. Instead, the evidence suggests that
Cox, personally, or by her own delegation (in this case Kehl), makes the final decision as to how
to collect unpaid utility bills for the Town as well as the final decision involving requests for
body attachments. See Valentino, 575 F.3d at 677-78 (after applying the relevant factors, the

26

court found that a mayor was the final decision maker when he had unfettered discretion to hire
and fire anyone he pleased). After applying the relevant factors, it is apparent that Cox is the
final decision maker for the Town with regards to the collection of utility bills. Thus, the
Callons have established that Cox is a final decision maker for the Town, such that the Town
may be held liable if the jury finds that Cox, personally, or by her own delegation, violated the
Callons’ substantive due process rights under the Fourteenth Amendment.
C.

State Law Claim
Finally, the Callons argue that the Town is liable for the state law claim of false

imprisonment. However, the Callons’ state law claim is without merit because the Town is
immune from liability pursuant to Indiana Code § 34-13-3-3(6). Under Indiana Code § 34-13-33(6), a governmental entity is not liable if a loss results from the initiation of a judicial or an
administrative proceeding. Ind. Code § 34-13-3-3(6). Here, the false imprisonment claim stems
from the Town’s initiation of proceedings supplemental hearing on February 20, 2009 due to
Town officials’ failure to file a timely satisfaction of judgment to cancel such a proceeding.
Essentially, the Callons attempt to allege that the Town is liable for false imprisonment for
failing to take steps to ensure that the proceedings supplemental hearing was discontinued.
However, pursuant to the Indiana Code, the Callons may not recover from the Town for the
initiation of its proceedings supplemental hearing. See Edwards v. Vermillion County Hospital,
579 N.E.2d 1347, 1348 (Ind. Ct. App. 1991) (finding that a hospital was immune from liability
under the Indiana Code for failing to discontinue a proceedings supplemental hearing against a
plaintiff in a false imprisonment action). Therefore, the Defendants are entitled to summary
judgment on the Callons’ state law claim.

27

IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment (Dkt. 66) is
GRANTED in part with respect to the Plaintiffs’ Fourth Amendment claims, their procedural
due process claims, and the state law claim of false imprisonment, but DENIED in part with
respect to the Plaintiffs’ substantive due process claim and Monell claim.
SO ORDERED: 1/25/2012
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Rosemary L. Borek
STEPHENSON MOROW & SEMLER
[e-mail]
James S. Stephenson
STEPHENSON MOROW & SEMLER
[e-mail]
John Terrill Young
YOUNG & YOUNG
[e-mail]
Roger A. Young
YOUNG & YOUNG
[e-mail]

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