BREITWEISER v. INDIANA DEPARTMENT OF CHILD SERVICES et al

Filing 147

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; The Court ADOPTS the Magistrate Judge's Report and Recommendation (Filing No. 138), GRANTING in part and DENYING in part Hunt's Motion for Summary Judgment (Filing No. 116). This matter will p roceed to trial on the issue of damages on the Fourth Amendment unreasonable search claim and the Fourteenth Amendment procedural due process claim based on the warrantless search of Breitweiser's apartment. Signed by Judge Tanya Walton Pratt on 7/11/2017.(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BETH BREITWEISER, individually and on
behalf of her minor children, M.B. and T.B.,
Plaintiff,
v.
NOLA HUNT,
Defendant.

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Case No. 1:15-cv-01687-TWP-MJD

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
This matter is before the Court on a Report and Recommendation (Filing No. 138) from
the Magistrate Judge to grant in part and deny in part Defendant Nola Hunt’s (“Hunt”) Motion for
Summary Judgment (Filing No. 116.) Hunt objects to the Report and Recommendation. (Filing
No. 141.) Plaintiff Beth Breitweiser (“Breitweiser”) initiated this lawsuit against Hunt and the
Indiana Department of Child Services (“DCS”), Director Mary Beth Boneventura, and Regional
Manager Peggy Surbey on October 23, 2015, asserting various state law claims and violations of
the Fourth and Fourteenth Amendments. After a motion to dismiss, an amended complaint, and a
motion for judgment on the pleadings, the claims were narrowed to Breitweiser’s claims for
unreasonable search and seizure and violation of substantive and procedural due process and Hunt
remains as the sole defendant.
With the claims narrowed, the Court referred Hunt’s Motion for Summary Judgment to the
Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Mark J. Dinsmore issued a Report and Recommendation, recommending that the

Motion for Summary Judgment be granted in part and denied in part (Filing No. 138). Specifically,
the Magistrate Judge concluded:
Breitweiser, the nonmovant, has demonstrated that she is entitled to
judgment as a matter of law on her Fourth Amendment and procedural due process
claims arising out of Hunt’s warrantless search of Breitweiser’s Apartment. Having
given the parties notice and an opportunity to respond to that prospect [Dkt. 132],
the Magistrate Judge recommends that the District Judge DENY Hunt’s Motion
[Dkt. 116] and GRANT partial summary judgment in Breitweiser’s favor with
respect to these claims.
Breitweiser, however, has failed to overcome Hunt’s qualified immunity
defense with respect to Breitweiser’s due process claims for Hunt’s alleged threats
to remove Breitweiser’s children. Accordingly, the Magistrate Judge recommends
that the District Judge GRANT Hunt’s Motion [Dkt. 116] with respect to the
remainder of Breitweiser’s substantive and procedural due process claims.
Id. at 27–28.
The Court finds no error of law or fact in the Report and Recommendation and therefore
OVERRULES Hunt’s objection (Filing No. 141). The Court hereby ADOPTS the Magistrate
Judge’s Report and Recommendation (Filing No. 138), granting in part and denying in part Hunt’s
Motion for Summary Judgment (Filing No. 116); for the following reasons.
I. DISCUSSION
The facts of this case are set forth in detail in the Magistrate Judge’s Report and
Recommendation which the Court adopts, so only a brief synopsis of the factual background is
stated in this Order. In addition, the Court declines to repeat the thorough legal analysis and
conclusion of the Magistrate Judge, but rather points the parties to the Report and
Recommendation for this information.
The dispute in this matter arises out of a citizen’s report of child abuse or neglect, alleging
that Breitweiser’s two children were subjected to hazardous living conditions while temporarily
living in an apartment attached to Breitweiser’s veterinary clinic. Hunt, the Case Manager

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assigned to conduct an assessment of the report, gained entry into the apartment without a warrant,
to observe whether the allegations in the initial report were accurate. After photographing inside
the apartment, Hunt filed a child in need of services (“CHINS”) petition, alleging that probable
cause existed to believe the children were endangered and that temporary wardship over
Breitweiser’s children should be granted to DCS. Two months following the initiation of the
CHINS proceedings in juvenile court, DCS voluntarily dismissed the case and sometime later, this
lawsuit followed.
Hunt filed her Motion for Summary Judgment on Breitweiser’s Fourth and Fourteenth
Amendment claims, arguing that no constitutional violation occurred, and additionally, qualified
immunity provided her protection. Thereafter, the undersigned referred the motion for summary
judgment to the Magistrate Judge for a report and recommendation.
A district court judge may assign dispositive motions to a magistrate judge, in which case
the magistrate judge may submit to the district judge only a report and recommended disposition,
including any proposed findings of fact. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760
(7th Cir. 2009). See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). “The magistrate judge’s
recommendation on a dispositive matter is not a final order, and the district judge makes the
ultimate decision to adopt, reject, or modify it.” Schur, 577 F.3d at 760. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3). After a magistrate judge makes a report and recommendation, either
party may object within fourteen days. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). “A judge
of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1).
Further, a judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.

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Hunt objects to the Report and Recommendation’s finding regarding qualified immunity
and with respect to Breitweiser’s Fourth Amendment claims. In particular, Hunt asserts: (1)
Plaintiff has not offered a closely analogous case showing that Hunt’s conduct patently violated
the Fourth Amendment such that a reasonable official in her position would know that such a
violation was occurring without guidance from the courts, and (2) there were exigent
circumstances sufficient to allow Hunt to search the hybrid business/home without a warrant.
In her response to Hunt’s objection to the Report and Recommendation, Breitweiser asserts
persuasively, that “Hunt failed to make a specific objection to a portion of the report and
recommendation related to qualified immunity. Rather, Hunt merely repackaged her twice rejected
argument,” and the objection “is a mere restatement of her failed summary judgment argument.”
(Filing No. 143 at 1, 2.) The Court agrees with Breitweiser’s assessment of this objection.
With respect to exigent circumstances, the Magistrate Judge correctly determined that
Breitweiser’s rights, in relation to the search, were clearly established at the time of the incident.
Hunt has not raised any specific facts to demonstrate exigent circumstances for the warrantless
entry into Breitweiser’s home. The Fourth Amendment warrant requirement applies to social
workers. See, e.g., Michael C. v. Gresbach, 526 F.3d 1008, 1016–17 (7th Cir. 2008) (“As we stated
above, the structures of the Fourth Amendment apply to social workers.”; “We do not exempt child
welfare workers from adhering to basic Fourth Amendment principles under non-exigent
circumstances.”); Doe v. Heck, 327 F.3d 492, 513 (7th Cir. 2003). The Report and
Recommendation is well supported by the undisputed facts and case law. As a result, the Court
agrees with the Magistrate Judge’s conclusion and Hunts objection is overruled.

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II. CONCLUSION
For the reasons stated above, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation (Filing No. 138), GRANTING in part and DENYING in part Hunt’s Motion
for Summary Judgment (Filing No. 116). This matter will proceed to trial on the issue of damages
on the Fourth Amendment unreasonable search claim and the Fourteenth Amendment procedural
due process claim based on the warrantless search of Breitweiser’s apartment.
SO ORDERED.
Date: 7/11/2017

DISTRIBUTION:
E. Scott Treadway
EST LAW, LLC
[e-mail]
Raymond J. Biederman
MATTINGLY BURKE COHEN & BIEDERMAN LLP
[e-mail]
Jonathan Paul Nagy
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]
Matthew Keith Phillips
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]

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