SWALLERS v. DONAVAN et al

Filing 23

ORDER granting defendants' 15 Motion for Summary Judgment as to the federal claims which the complaint can be understood as asserting. The pendent claims under Indiana state law will be dismissed for lack of jurisdiction. This ruling resolves all the claims against all the parties, and final judgment consistent with this ruling shall now issue. (cm). Signed by Judge Richard L. Young on 3/10/2016. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BRENT ALLEN SWALLERS,
Plaintiff,
vs.
DANIEL DONAVAN, et al.,
Defendants.

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No. 1:15-cv-1649-RLY-MJD

Entry Granting Defendants’ Motion for Summary Judgment
Having considered the pleadings, the defendants’ motion for summary judgment and the
materials associated with such motion, the court finds that the motion for summary judgment
should be granted.
I. Parties, Claims and Defenses
Plaintiff Brent Allen Swallers resides on the east side of Indianapolis at 539 South Auburn
Street. He is the owner of record of both that property and of the adjacent property at 541 South
Auburn Street (sometimes hereafter referred to as “the property”).
The Marion County Department of Code Enforcement (“DCE”) is a municipal agency
responsible for enforcement of the zoning rules in Indianapolis as set forth in Revised Code of the
Consolidated City and County (hereafter “Revised Code”). Daniel Donavan and Nicoson Gebert
are Zoning Inspectors employed by the DCE. Bradley Sollars is an officer with the Indianapolis
Metropolitan Police Department (“IMPD”).

Swallers’ claims are based on events associated with DCE inspections of the property.
Swallers claims that the defendants are liable for liable for trespass, theft, and extortion. The
defendants challenge the court’s subject matter jurisdiction, they argue that they are immune from
suit under provisions of the Indiana Tort Claims Act, IND. CODE § 34-13-3-1, et seq. (“ITCA”),
and they argue that Swallers is collaterally estopped from bringing claims against Donavan and
the DCE for causes of action that accrued on March 26, 2014.
II. Procedural Posture
The action had an atypical beginning. On September 2, 2015, Swallers initiated an action
on the clerk’s miscellaneous docket as No. 1:15-mc-00079-SEB-MJD. That action was ordered
placed on the civil docket through an Entry issued on October 15, 2015 and the complaint was redocketed that same day, as was the defendants’ answer to the complaint. This simultaneous redocketing of both complaint and answer on the same day was possible because the defendants had
appeared by counsel in No. 1:15-mc-00079-SEB-MJD and had filed their answer to the complaint
therein.
The defendants’ motion for summary judgment was then filed on December 2, 2015. The
appropriate notification regarding that motion and the proper manner in which to respond to it was
issued to Swallers, who is not represented by counsel in this action.
On December 31, 2015, Swallers filed a motion for a jury trial to be set and for the award
of monetary relief. That motion was denied on January 12, 2016 “as procedurally improper.” The
court also noted in the Order of January 12, 2016 that “[t]he plaintiff could have responded to the
defendants’ motion for summary judgment as provided by Local Rule 56-(1), but the time for him
to have done so has expired.”

The action is therefore fully at issue on Swallers’ complaint, on the defendants’ answer,
and on the defendants’ unopposed motion for summary judgment.
III. Summary Judgment Standard
Summary judgment should be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find
for the non-moving party. Id. If no reasonable jury could find for the non-moving party, then there
is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007). “The applicable substantive
law will dictate which facts are material.” National Soffit & Escutcheons, Inc., v. Superior Systems,
Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing Anderson, 477 U.S. at 248). “Summary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.
R. Civ. P. 1). Swallers’ “pro se status doesn't alleviate his burden on summary judgment.” Arnett
v. Webster, 658 F.3d 742, 760 (7th Cir. 2011).
As noted, Swallers has not opposed the motion for summary judgment. The consequence
of his failure to do so is that he has conceded the defendants' version of the facts. Smith v. Lamz,
321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated by the
local rules results in an admission.”); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22
(7th Cir. 1994). This does not alter the standard for assessing a Rule 56(a) motion, but does
“reduc[e] the pool” from which the facts and inferences relative to such a motion may be drawn.
Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).

IV. Undisputed Material Facts
“[F]ailure to respond by the nonmovant as mandated by the local rules results in an
admission.” Smith, 321 F.3d at 683. The court therefore resolves the motion for summary judgment
on the basis of the evidence submitted by the defendants. See Koszola v. Board of Education v.
City of Chicago, 385 F.3d 1104 (7th Cir. 2004). Consistent with the foregoing, therefore, the
following statement of facts is not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed evidence are presented in the light
reasonably most favorable to Swallers as the non-moving party.
On September 30, 2014, Swallers filed a lawsuit in the Marion County Superior Court
against the DCE and Donovan (hereafter “the state court lawsuit”). Swallers alleged in the state
court lawsuit, docketed as No. 49D04-1409-CT-032348, that Donavan cited the owners of 541
South Auburn Street for several violations of the Revised Code and that in the course of doing so
he trespassed on Swallers’ property at that address on March 26, 2014. That same claim is asserted
in this case. The state court granted the motion to dismiss on June 9, 2015 based on its finding that
Swallers had not provided notice of his claims pursuant to the ITCA. No appeal from this
disposition of the state court lawsuit was taken.
DCE Inspector Gebert was at the property at 539 South Auburn Street on August 13, 2015
and again on September 1, 2015. On this latter occasion, Inspector Gebert began taking pictures,
was told by Swallers to leave, and returned with Officer Sollars, who instructed Swallers to permit
Inspector Gebert to resume taking pictures of the property.
Inspector Gebert inspected the property located at 539 South Auburn Street on August 13,
2015 to identify whether the owners of that property were violating any provisions of the Revised
Code. Inspector Gebert’s inspection that revealed that the owners of 539 South Auburn Street were

responsible for two types of violations of the Revised Code. First, they were committing a zoning
violation because they were improperly displaying merchandise on the property. Second, the
property owners were committing a vehicle violation because there was an inoperable vehicle on
the property. Inspector Gebert followed his training on this occasion by taking pictures of evidence
of code violations that could be viewed from the public street. As he was doing so, Swallers
confronted him. Swallers was upset that Inspector Gebert was taking pictures of the property at
539 South Auburn Street. Inspector Gebert offered Swallers a business card, which was taken, and
asked Inspector Gebert to leave.
Based on his finding evidence of violations of the Revised Code as just narrated, Inspector
Gebert opened a zoning and vehicle case at the DCE. Also has part of his training, Inspector Gebert
performed additional inspections of any property on which he has identified evidence of a zoning
violation. The additional inspection of the property at 539 South Auburn Street occurred on
September 1, 2015. When he attempted to take pictures of this evidence, Inspector Gebert was
approached by Swallers, who was talking loud, pointing, coming off of the property towards
Gebert, and acting very hostile and aggressive. Swallers also threatened Gebert on September 1,
2015. After this threat was made, Officer Sollars, who was in his IMPD police uniform, met
Inspector Gebert and followed him to 539 South Auburn Street so that he could finish taking
pictures of the code violations that he identified during his second inspection. Officer Sollars then
stood next to Gebert in the public street while Gebert took pictures of the code violations. Swallers
then approached Gebert and Officer Sollars and claimed that they were trespassing. Officer Sollars
explained that he and Gebert were standing on a public road, not Plaintiff’s property, and that
Gebert was taking pictures for the DCE.

Neither Inspector Gebert nor Officer Sollars stepped foot on the property at 539 South
Auburn Street on September 1, 2015. Each was present as described above while performing the
duties of his employment within the scope of his employment on September 1, 2015.
On the following day, September 2, 2015, Swallers filed the complaint docketed as No.
1:15-mc-00079-SEB-MJD. There was no tort claim notice served on any of the defendants or on
the City of Indianapolis prior to September 2, 2015.
Swallers states on page 3 of his 14-page complaint that his claims are based on the court’s
diversity jurisdiction. It is quite evident, however, that the parties are all citizens of Indiana. It is
also evident from Swallers’ complaint that he seeks, in part, vindication of rights secured to him
by the United States Constitution. This highlights the fact that Swallers’ complaint contains both
federal claims and state tort law claims.
IV. Discussion
A. Subject Matter Jurisdiction
“Subject-matter jurisdiction means adjudicatory competence over a category of disputes.”
Wisconsin Valley Imp. Co. v. United States, 569 F.3d 331, 333 (7th Cir. 2009)(citing Kontrick v.
Ryan, 540 U.S. 443 (2004), and Eberhart v. United States, 546 U.S. 12 (2005)). Thus, a court has
subject-matter jurisdiction if it has the “authority to decide the case either way.” The Fair v. Kohler
Die & Specialty Co., 228 U.S. 22, 25 (1913) (Holmes, J.).
A district court possesses only the jurisdiction conferred to it by Congress. See South
Carolina v. Katzenbach, 383 U.S. 301 (1966). Congress has conferred subject matter jurisdiction
on the district courts only in cases that raise a federal question and cases in which there is diversity
of citizenship among the parties. Smart v. Local 702 Intern. Broth. of Elec. Workers, 562 F.3d 798,
802 (7th Cir. 2009)(citing 28 U.S.C. §§ 1331-32)).

“Jurisdiction is established when the complaint narrates a claim that arises under federal
law (28 U.S.C. § 1331) or that satisfies the requirements of the diversity jurisdiction (28 U.S.C. §
1332).” Bovee v. Broom, 732 F.3d 743, 744 (7th Cir. 2013). There is no diversity jurisdiction over
Swallers’ claims. However, a plaintiff need not plead legal theories in his complaint. See, e.g.,
Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (“A complaint need not identify
legal theories, and specifying an incorrect theory is not a fatal error.”); Ryan v. Ill. Dep't of Children
& Family Servs., 185 F.3d 751, 764 (7th Cir. 1999) (“We have consistently held that plaintiffs are
not required to plead legal theories. While a plaintiff may plead facts that show she has no claim,
she cannot plead herself out of court by citing to the wrong legal theory or failing to cite any theory
at all.”) (citations omitted).
The absence of diversity jurisdiction is thus not dispositive of the defendants’ argument on
jurisdiction. “It is settled doctrine that a case is not cognizable in a federal trial court, in the absence
of diversity of citizenship, unless it appears from the face of the complaint that determination of
the suit depends upon a question of federal law.” Pan Am. Petroleum Corp. v. Superior Court of
Del. In & For New Castle Cty., 366 U.S. 656, 663 (1961). Here, the complaint make reference to
the Fourth Amendment and to other federally secured interests. These references are sufficient to
invoke 42 U.S.C. § 1983, “the ubiquitous tort remedy for deprivations of rights secured by federal
law (primarily the Fourteenth Amendment) by persons acting under color of state law.” Jackson
v. City of Joliet, 715 F.2d 1200, 1201 (7th Cir. 1983), cert. denied, 465 U.S. 1049 (1984), and from
this subject matter jurisdiction can be found to exist under 28 U.S.C. § 1331(a)(“The district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States”). See also Penobscot Nation v. Georgia-Pac. Corp., 254 F.3d 317, 322 (1st
Cir. 2001)(“the Supreme Court has often said that a colorable claim of a federal cause of action

will confer subject matter jurisdiction even though the claim itself may fail as a matter of law on
further examination”)(citing cases). This does not entirely displace the state torts qua claims under
state law, of course, and jurisdiction over such claims may be found to exist pursuant to 28 U.S.C.
§ 1367(a).
The motion for motion for summary judgment is therefore denied as to the defendants’
argument that the court lacks subject matter jurisdiction over Swallers’ claims.
B. Remaining Arguments in the Motion for Summary Judgment
The defendants advance other arguments in support of their motion for summary judgment.
For the most part, these other arguments are persuasive.


Any cause of action which accrued on March 26, 2014 were asserted and adjudicated in
the state court lawsuit. Under the Full Faith and Credit Act, federal courts must give state
judicial proceedings “the same full faith and credit . . . as they have by law or usage in the
courts of [the] State . . . from which they are taken.” 28 U.S.C. § 1738; see Parsons Steel,
Inc. v. First Alabama Bank, 474 U.S. 518, 519 (1986). The doctrine of res judicata, or claim
preclusion, “bars a second suit involving the same parties or their privies based on the same
cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). The
Supreme Court has long recognized the doctrine of res judicata as “a rule of fundamental
and substantial justice, ‘of public policy and of private peace,’ which should be cordially
regarded and enforced by the courts to the end that rights once established by the final
judgment of a court of competent jurisdiction shall be recognized by those who are bound
by it in every way, wherever the judgment is entitled to respect.” Hart Steel Co. v. R.R.
Supply Co., 244 U.S. 294, 299 (1917). The application of “res judicata serves vital public
interests” and is supported by public policy. Federated Dep't Stores, Inc. v. Moitie, 452
U.S. 394, 401 (1981). Under Indiana law, a state court judgment precludes all claims that
were litigated or could have been litigated in the prior case when four requirements are
met: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior
judgment was rendered on the merits; (3) “the matter now in issue was, or could have been,
determined in the prior action”; and (4) the prior judgment was rendered in a suit between
the parties to the new lawsuit or parties in privity with them. Small v. Centocor, Inc., 731
N.E.2d 22, 26 (Ind.Ct.App. 2000); accord, Perry v. Gulf Stream Coach, Inc., 871 N.E.2d
1038, 1048 (Ind.Ct.App. 2007); Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195
(Ind.Ct.App. 2003). Each of the elements are present as to the disposition of the state court
lawsuit and any claim which could be based on events alleged in this case to have accrued
on March 26, 2014. The motion for summary judgment is granted on the basis of the res
judicata effect of the state court lawsuit.



Swallers alleges that the defendants violated his federally secured rights because the
defendants committed various torts against him under Indiana law. The defendants point
out that the claims against the DCE are actually against the City of Indianapolis, but this is
of no consequence. Best v. City of Portland, 554 F.3d 698, fn* (7th Cir. 2009). Apart from
this, however, Section 1983 “is not itself a source of substantive rights”; rather it merely
provides “a method of vindicating federal rights conferred elsewhere.” Albright v. Oliver,
510 U .S. 266, 271 (1994). It is paramount to note here, moreover, that there is no cause of
action under 42 U.S.C. § 1983 for the violation of a state law. Scott v. Edinburg, 346 F.3d
752, 760 (7th Cir. 2003)("42 U.S.C. 1983 protects plaintiffs from constitutional violations,
not violations of state laws . . . ."). The motion for summary judgment is therefore granted
as to Swallers’ claims that the defendants’ alleged conduct in violating Indiana law is
actionable pursuant to 42 U.S.C. § 1983.



Swallers’ Fourth Amendment claim based on the defendants’ conduct occurring in August
2015 and on September 1, 2015 lacks a factual predicate. That is, the defendants have
established without contradiction from Swallers. That is, the defendants did not enter onto
the property in August 2015 or on September 1, 2015 or otherwise engage in conduct which
violated Swallers’ Fourth Amendment right to be secure against an unreasonable search or
seizure. This is the account which the court accepts in resolving the defendants’ motion for
summary judgment. Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir.
2004)(“[A] district court is entitled to decide [a summary judgment] motion based on the
factual record outlined in the [parties'] Local Rule 56.1 statements.”)(internal quotation
marks and alterations omitted).



Swallers claims that the defendants are liable for trespass, theft, and extortion. These are
subsumed in whole or in part through Swallers’ reference to the ITCA. These are tort claims
that arise under Indiana law, not federal law. As has been made clear, there are both federal
and state claims in Swallers’ complaint. Where a district court has original jurisdiction over
a civil action, as is the case here, it also has supplemental jurisdiction over related state
claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims “derive from a common
nucleus of operative fact” with the federal claims. Wisconsin v. Ho–Chunk Nation, 512
F.3d 921, 936 (7th Cir. 2008). Here, however, the federal claims have now been resolved
prior to trial. The general rule under these circumstances is to dismiss the pendent state law
claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) ("in the usual case
in which all federal law claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine--judicial economy, convenience,
fairness, and comity--will point toward declining to exercise jurisdiction over the
remaining state-law claims") (citing United Mine Workers of America v. Gibbs, 383 U.S.
715, 726 (1966)). The district courts should exercise this discretion to relinquish
jurisdiction over state law claims that remain after the dismissal of federal claims unless
any of the following three circumstances exists: (1) the state law claims may not be re-filed
because a statute of limitations has expired, (2) substantial judicial resources have been
expended on the state claims, or (3) it is clearly apparent how the state claims are to be
decided. Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007). The general rule will
be followed here, and application of the general rule dictates that the pendent state law
claims be dismissed for lack of jurisdiction.

V. Conclusion
The primary purpose of summary judgment is to isolate and dispose of factually
unsupported claims.” Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001). In seeking
summary judgment, the defendants met their initial burden under Rule 56. This shifted the burden
to Swallers to “set forth specific facts showing there is a genuine issue for trial.” Fed.R.Civ.P.
56(e)(2). See Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (citing
cases). Swallers did nothing to meet that burden.
For the reasons explained in this Entry, therefore, the defendants’ motion for summary
judgment [dkt 15] is granted as to the federal claims which the complaint can be understood as
asserting. The pendent claims under Indiana state law will be dismissed for lack of jurisdiction.
This ruling resolves all the claims against all the parties, and final judgment consistent with
this ruling shall now issue.
IT IS SO ORDERED.

Date: 3/10/2016

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distribution:
BRENT ALLEN SWALLERS
539 S. Auburn St.
Indianapolis, IN 46241
Electronically registered counsel