WARD v. TANNER et al

Filing 55

ORDER granting 39 Motion for Summary Judgment as to all defendants. Judgment consistent with this Entry shall now issue. Signed by Judge William T. Lawrence on 12/7/2017. (REO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

)
)
)
)
)
)
)
)
)

DACIA NAKEMA WARD,
Plaintiff,
vs.
JACK TANNER, VIGO COUNTY,
Defendants.

Case No. 2:16-cv-00274-WTL-MPB

Entry Granting Defendants’ Motion for Summary Judgment
and Directing Entry of Final Judgment
Plaintiff Dacia Nakema Ward, an inmate at Westville Correctional Facility, an Indiana state
prison, filed this civil action. The defendants are Jack Tanner and Vigo County.
Ward alleges that he sought and was granted approval by a state court judge to participate
in a drug treatment program called Jail Linkage. Ward completed phase one, a six-week program,
which is held in the Vigo County jail. However, Ward was denied the opportunity to participate in
phase two of the program. Ward alleges that he was denied the opportunity to go to a sober living
halfway house called “Freebirds” and complete phase two of the program because he is a sex
offender. He asserts that this decision was made by Jack Tanner consistent with Vigo County’s
policies in violation of Ward’s right to equal protection.
The screening Entry issued July 18, 2016, held that these allegations were sufficient to
raise an equal protection claim under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983.
Dkt. No. 6. Section 1983 provides:
1

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress ....
42 U.S.C. § 1983. “Equal protection of the laws means that all persons similarly situated should
be treated alike.” United States v. Brucker, 646 F.3d 1012, 1016-17 (7th Cir. 2011) (internal
citation omitted).
The defendants deny any wrongdoing. Now before the Court is the motion for summary
judgment filed by defendant Jack Tanner. For the reasons explained below, the motion for
summary judgment is granted and both defendants are entitled to judgment as a matter of law. See
Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986) (“[W]here one defendant
files a motion for summary judgment which the court grants, the district court may sua sponte
enter summary judgment in favor of additional non-moving defendants if the motion raised by the
first defendant is equally effective in barring the claim against the other defendants and the plaintiff
had an adequate opportunity to argue in opposition to the motion.”).
I. Standard of Review
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). “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).

2

“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). “[T]he burden on the moving party may be discharged by
‘showing’--that is, pointing out to the district court--that there is an absence of evidence to support
the nonmoving party’s case.” Id. at 325. The Court views the facts in the light most favorable to
the non-moving party and all reasonable inferences are drawn in the non-movant’s favor. Ault v.
Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
In this case, Tanner has met that burden through his unopposed motion for summary
judgment. 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.”). By not responding to the
motion for summary judgment, Ward has conceded to Tanner’s version of the facts. Brasic v.
Heinemann=s Inc., 121 F.3d 281, 286 (7th Cir. 1997). This is the result of Local Rule 56-1(h), of
which Ward was notified. This does not alter the standard for assessing a Rule 56 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).
II. Material Facts
Ward was charged with possession of methamphetamine and possession of paraphernalia
in Vigo Superior Court on February 23, 2015, and the court referred Ward for an evaluation at a
sober living facility shortly thereafter on March 4, 2015.

3

Freebirds Solution Center (“Freebirds”) is a faith based sober living facility in Terre Haute,
Indiana. Jack Tanner, the Director of Operations of Freebirds, evaluated Ward for placement at the
facility. Tanner performed a background check and interviewed Ward as part of the evaluation for
placement at Freebirds.
Following the evaluation, Ward was accepted for placement at Freebirds and Tanner issued
a report to the court confirming Ward’s acceptance for placement at Freebirds on April 20, 2015.
Tanner submitted the following to the Court:

Dkt. No. 40-3.
A hearing was conducted on Ward’s petition for release to Freebirds on May 7, 2015. The
court denied Ward’s petition for release to a sober living facility. Dkt. No. 40-4.
4

On July 9, 2015, Ward pleaded guilty to possession of methamphetamine and possession
of paraphernalia. Ward was sentenced on August 10, 2015 to two years on the conviction for
possession of methamphetamine and one year on the conviction for possession of paraphernalia.
The Court ordered the sentences to run concurrently with the first year of the sentence executed
and the balance suspended.
Eventually, Ward was released to probation. But, on December 31, 2015, a notice of
probation violation was filed. By agreement, Ward admitted to the probation violation on February
18, 2016, and was immediately released from Vigo County Jail and ordered to report to the Adult
Probation Department to get in compliance with the terms of his probation.
An amended notice of probation violation was filed on April 19, 2016.1 Ward admitted to
the amended probation violation on October 6, 2016. Ward’s probation was revoked on October
31, 2016, and he was ordered to serve the balance of his suspended sentence at the Indiana
Department of Correction. Dkt. No. 40-14.
III. Discussion
Defendant Tanner seeks judgment as a matter of law arguing that he is not liable under 42
U.S.C. § 1983 for violating Ward’s equal protection rights. Specifically Tanner argues that he is
not a state actor. In addition, it was the state court and not the defendants that denied Ward
placement at Freebirds.
The undisputed record reflects that neither Tanner nor Vigo County discriminated against
Ward because he is a sex offender. Tanner accepted Ward into Freebirds after a clean background

1

The Court denied Ward’s request for another sober living evaluation on August 15, 2016. Dkt.
No. 40-11.
5

check and interview. In other words, Ward was accepted even though Ward identifies himself as
a sex offender.
The decision to deny Ward a place at Freebirds was the result of the Vigo Superior Court
Judge’s decision. It was the state court (not Tanner) that denied Ward’s petition for release to a
sober living facility following a hearing. The Order issued on May 7, 2015, by the Vigo Superior
Court, Division 3, states in relevant part:

Dkt. No. 40-4. There can be no liability on the part of the defendants under these circumstances.
The record reflects that the state court and not the defendants were responsible for Ward not being
placed in Freebirds or another sober living facility.
IV. Conclusion
For the reasons explained above, the motion for summary judgment, Dkt. No. 39, is
granted as to all defendants. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
_______________________________

Date: 12/7/17

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:
DACIA NAKEMA WARD
923320
WESTVILLE - CF
WESTVILLE CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Electronically registered counsel
6