MCFARLANE v. CAROTHERS

Filing 102

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT - 91 Defendant Mike Carothers's Motion for Summary Judgment is DENIED. 95 Plaintiff Brandon McFarlane's Motion for Partial Summary Judgment is DENIED. The case shall proceed accordingly. Signed by Judge Sarah Evans Barker on 9/30/2019. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
BRANDON MCFARLANE,

)
)
Plaintiff,
)
)
v.
)
)
MIKE CAROTHERS, Jackson County Sheriff, )
)
Defendant.
)

No. 4:15-cv-00176-SEB-DML

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This cause is before the Court on the parties’ cross-motions for summary judgment
filed by Defendant Mike Carothers on October 10, 2018 [Dkt. 91] and Plaintiff Brandon
McFarlane on October 25, 2018 [Dkt. 95], pursuant to Federal Rule of Civil Procedure
56. Mr. McFarlane brought this action on behalf of himself and the Certified class,
pursuant to 42 U.S.C. § 1983, alleging that Sheriff Carothers, in his official capacity as
Jackson County Sheriff, instituted unconstitutional policies resulting in Mr. McFarlane’s
overdetention at the Jackson County jail, in violation of his rights under the Fourth
Amendment to the United States Constitution.
For the reasons detailed below, we DENY Plaintiff’s Motion for Summary
Judgment and also DENY Defendant’s Motion for Summary Judgment.

1

Background
Procedural Background
On July 8, 2016, Plaintiff filed a class certification motion [Dkt. 22]. We referred
the motion to Magistrate Judge Debra McVicker Lynch for a report and recommendation
[Dkt. 48]. Judge Lynch recommended that the proposed class be certified, as modified,
[Dkt. 51], a recommendation we adopted on March 31, 2017, [Dkt. 61], over Defendant’s
objection [Dkt. 54].
A short time later, Sheriff Carothers moved for reconsideration of that ruling or for
decertification of the class in light of Ewell v. Toney, 853 F.3d 911 (7th Cir. 2017) [Dkt.
72]. We granted the motion for reconsideration and remanded the class certification
motion to Judge Lynch for a supplemental report and recommendation on the effect of
Ewell [Dkt. 78]. In our remand order, we noted that the court’s treatment of Ewell could
affect the resolution of the parties then-pending cross-motions for summary judgment
[Dkt. 52; 58], which had been almost entirely briefed before Ewell was decided [Id.]. We
therefore administratively closed both motions for summary judgment and directed that
following resolution of the remand to the magistrate judge, the parties would be
permitted, if warranted, to refile their summary judgment motions to take into account the
second, post-Ewell Report and Recommendation analysis [Id.]
On July 10, 2018, Judge Lynch renewed her recommendation that Plaintiff’s
proposed class be certified, Ewell notwithstanding, to which Sheriff Carothers timely
objected [Dkt. 84]. We overruled Sheriff Carothers’s objections and adopted the Report

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and Recommendation on September 27, 2018, affirming our certification of the following
class under Federal Rules of Civil Procedure 23(a) and 23(b) for damages relief only:
Individuals who, from December 10, 2013, to the date of
class certification, were incarcerated in the Jackson County,
Indiana, jail, who had been arrested without a warrant, and
were then held more than 48 hours following the detention
and arrest, without receiving a timely judicial probable cause
determination
[Dkt. 90].
On October 10, 2018, Sheriff Carothers again moved for summary judgment [Dkt.
91], limiting it to the Monell issue had he raised in his first motion and abandoning the
question of whether Mr. McFarlane suffered any constitutional injury. Mr. McFarlane
followed suit by renewing his partial motion for summary judgment on October 25, 2018,
incorporating his earlier Memorandum in Support of Motion for Summary Judgment and
all designated evidentiary materials [Dkt. 95]. As of the dates of their renewed motions
for summary judgment, the parties had identified a total of 45 arrestees who qualified for
membership in this class [Dkt. 42, at 8; Dkt. 92, at 7].
Mr. McFarlane’s Arrest and Overdetention
Mr. McFarlane was detained at the Jackson County jail on a warrantless arrest for
more than 48 hours from January 5, 2015 through January 7, 2015 [Compl. ¶ 1, Dkt. 92,
at 1-2]. Specifically, Mr. McFarlane was arrested at approximately 11:57 a.m. on January
5, 2015 by a member of the Seymour Police Department on a charge of violating a
protective order and contributing to the delinquency of a minor [Dkt. 53, at 2-3; Dkt. 92,
at 1-2]. He was booked into the Jackson County jail that same day [Dkt. 53, at 3]. During

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his period of confinement at the Jackson County jail, Mr. McFarlane was never taken
before a judge or magistrate for a judicial probable cause determination, nor did a judge
or magistrate review his charges prior to his release to determine if probable cause had
existed for his arrest and subsequent detention [Dkt. 53, at 3]. He was released from the
Jackson County jail on his own recognizance on January 7, 2015 at 3:24 p.m after 51.5
hours of detention.
The Jackson County Sheriff’s Customs and Practices
Sheriff Carothers was aware that individuals arrested without a warrant and
detained in jail were to be released within 48 hours of arrest if they did not receive
judicial probable cause determinations within those first 48 hours [Dkt. 53, at 3; Dkt. 5217, Exh. 12]. Sheriff Carothers asserts that he, in conjunction with the Courts of Jackson
County, the Jackson County Prosecuting Attorney, and the various police departments in
Jackson County, developed the following system of effectuating probable cause
determinations for individuals arrested without a warrant [Dkt. 53, at 3; Dkt. 92, at 2;
Dkt. 59-1, Carothers Aff. ¶ 3; Dkt. 59-2, Murphy Aff. ¶ 3].
When an arresting officer executes a warrantless arrest in Jackson County, he or
she is responsible for providing an affidavit of probable cause to a judge, or, in limited
cases, appearing before a judge to give testimony to establish probable cause [Dkt. 53, at
3; Dkt. 92, at 2; Carothers Aff. ¶ 3; Dkt. 59-2, Murphy Aff. ¶ 3]. If the judge or
magistrate judge determines that probable cause existed, he or she will sign an “Order
Determining Probable Cause for Warrantless Arrest,” sometimes referred to as a “48 hour
form,” and designate the date and time of said determination [Dkt. 92, at 2; Carothers
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Aff. ¶ 3; Dkt. 59-2, Murphy Aff. ¶ 3]. Copies of the order are sent to the prosecuting
attorney and the jail [Id.]. If the form has not been received at the jail within several
hours prior to the end of the relevant 48-hour period, the arresting officer is notified that
his arrestee will be processed out of the jail unless the form is received within 48 hours of
from the time of the arrest [Dkt. 92, at 3; Carothers Aff. ¶ 5; Murphy Aff. ¶ 5].
The jail sergeants on each shift at the Jackson County jail are instructed to monitor
the timeframes for judicial probable cause determinations and are tasked with ensuring a
“48 hour form” is obtained for every detainee arrested without a warrant within 48 hours
of their arrests, pursuant to the date and time of the arrests in the booking log. [Dkt. 92, at
3; Carothers Aff. ¶ 6; Murphy Aff. ¶ 6]. The booking records are checked daily and those
warrantless arrestees without “48 hour forms” are noted. The jail sergeants are directed to
release detainees on their own recognizance promptly if a “48 hour form” is not obtained
within 48 hours of the arrest [Id.] Relying on staff, Sheriff Carothers did not utilize any
sort of computerized system by which jail personnel could “look up” which arrestees
were approaching the 48-hour mark of detainment [Dkt. 53, at 3-4; Dkt. 52-16, Exh. 11].
Analysis
I.

Standard of Review
Summary judgment is appropriate where there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must grant a motion for
summary judgment if it appears that no reasonable trier of fact could find in favor of the
nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 247-48 (1986). We neither weigh the evidence nor evaluate
the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences
flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,
573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).
Courts often confront cross motions for summary judgment because Rules 56(a)
and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to
move for such relief. In such situations, courts must consider each party’s motion
individually to determine if that party has satisfied the summary judgment standard. Kohl
v. Ass’n. of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998). Here, the Court has
considered the parties’ respective memoranda and the exhibits attached thereto and has
construed all facts and drawn all reasonable inferences therefrom in the light most
favorable to the respective nonmovant. Matsushita, 475 U.S. at 574.
II.

Discussion
The parties each advance the following issue as controlling here and respectively

argue for a resolution in their favor: Did Sheriff Carothers, acting in his official capacity,
engage in a practice, procedure, or custom of detaining individuals arrested without
warrants beyond 48 hours without probable cause determinations?
A. Unconstitutionality of Mr. McFarlane’s Overdetention
The Fourth Amendment requires a prompt judicial determination of probable
cause following a warrantless arrest and ensuing detention. Gerstein v. Pugh, 420 U.S.
103, 125 (1975). The parties do not dispute that “prompt” generally means within 48
hours of the warrantless arrest, absent the existence of extraordinary circumstances, nor
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do they dispute that Mr. McFarlane and the 45 class members were detained beyond 48
hours without probable cause determinations or the presence of exigent circumstances.
Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). Accordingly, Mr. McFarlane, and the
certified class, “could not, consistent with the Fourth Amendment, be continued in
custody beyond 48 hours.” Haywood v. City of Chicago, 378 F.3d 714, 717 (7th Cir.
2004). Thus, the underlying question before us here is whether these overdetentions were
the result of a policy or practice, or merely random instances of staff negligence.
B. 42 U.S.C § 1983
Section 1983 provides redress for constitutional violations committed by state
actors under the color of law. Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir.
1997). As the Supreme Court recognized in Kentucky v. Graham, 473 U.S. 159, 165
(1985), a suit against an officer in his official capacity “generally represent[s] only
another way of pleading an action against [the] entity of which [the] officer is an agent.”
Hoffman v. Knoebel, No. 4:14-cv-00012-SEB-TAB. 2017 WL 1128534 (S.D. Ind. Mar.
24, 2017).
It is well-settled that § 1983 does not allow “for a local government to be sued . . .
for an injury inflicted solely by its employees or agents.” Monell v. Dep't of Social Servs.
of City of New York, 436 U.S. 658, 690 (1978); Gernetzke v. Kenosha Unified Sch. Dist.
No. 1, 274 F.3d 464, 468 (7th Cir. 2001). To properly maintain a § 1983 action against a
local government, a plaintiff must demonstrate the existence of an unconstitutional
policy. “Locating a ‘policy’ ensures that a municipality is held liable only for those
deprivations resulting from the decisions of its duly constituted legislative body or of
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those officials whose acts may fairly be said to be those of the municipality.” Bd. of Cty.
Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403–04 (1997). Such a policy can
take one of three forms: “(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well-settled as to constitute
a custom or usage with the force of law; or (3) an allegation that constitutional injury was
caused by a person with final policy-making authority.” Rasche v. Vill. of Beecher, 336
F.3d 588, 597 (7th Cir. 2003).
C. Evidence of an Unconstitutional Policy
Mr. McFarlane asserts that Sheriff Carothers violated his affirmative duty,
imposed by Indiana law, to ensure that pre-trial detainees receive prompt judicial
probable cause determinations. Luck v. Rovenstine, 168 F. 3d 323, 326 (7th Cir. 1999)
(holding that Ind. Code. § 36-2-13-5(a)(7) tasks sheriffs with the duty to care for their
jails and its prisoners, and thus the duty to ensure that detainees arrested without warrants
either receive prompt probable cause hearings or are released). Thus, he asserts that
Sheriff Carothers implemented a “constitutionally deficient” policy in lieu of fulfilling
his constitutional and statutory responsibilities. Mr. McFarlane also alleges the existence
of an unconstitutional widespread practice at the jail that, although not authorized by
written law or express policy, was so permanent or well-settled as to constitute a custom
or usage with the force of law.

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1. The Existence of a “Widespread Practice”
We are faced with limited case law defining “widespread practices” under Fourth
Amendment standards. However, the Seventh Circuit’s approach in discussing this legal
theory in other constitutional contexts guides our analysis, as it did with the parties as
evidenced in their briefs.
No “bright-line” rule defines a widespread custom or practice, but a plaintiff
generally “must introduce evidence that acquiescence on the part of the policymakers was
and amounted to a policy decision.” Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir.
2016); Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010). “There
is no clear consensus as to how frequently such conduct must occur to impose Monell
liability, except that it must be more than one instance or even three.” Thomas, 604 F.3d
at 303 (internal citations omitted); see also Rodriguez v. Milwaukee Cty., 756 F. App’x
641, 643 (7th Cir. 2019), reh’g denied (Mar. 25, 2019). The key inquiry here is whether
the practice was the moving force behind the Gerstein violations. Woodward v. Corr.
Med. Servs. of Illinois, Inc., 368 F.3d 917, 927 (7th Cir. 2004).
For Sheriff Carothers’s actions to have the “force of law,” they must have been
“deliberately indifferent as to [their] known or obvious consequences.” Gable v. City of
Chicago, 296 F.3d 531, 536 (7th Cir. 2002). Deliberate indifference, in the context of a
widespread practice theory, means “a reasonable policymaker [would] conclude that the
plainly obvious consequences of [his] actions would result in the deprivation of a
federally protected right.” Id. (quoting Bd. of County Comm’rs v. Brown, 520 U.S. 397,
411 (1997); Brock v. Casteel, No. 1:13-CV-01577-DML, 2015 WL 3439236, at *9 (S.D.
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Ind. May 28, 2015); Hall v. City of Chicago, No. 12 C 6834, 2012 WL 6727511, at *6
(N.D. Ill. Dec. 28, 2012). These consequences may be plainly obvious when one knows
or should know of their existence. Wilson v. Cook Cty., 742 F.3d 775, 781 (7th Cir.
2014).
Mr. McFarlane’s brief confusingly intertwines his theories of “widespread
practice” and “breach of affirmative constitutional duty,” proclaiming that the existence
of widespread practice is exhibited by Sheriff Carothers’s failure to ensure that detainees
who were warrantlessly arrested receive prompt judicial cause determinations, also
contravening his affirmative duty to do so. Mr. McFarlane asserts that, by neglecting his
constitutional obligation, Sheriff Carothers “proximately caused a deliberately indifferent
policy.” Such acquiescence amounts to a policy decision, and that failure to properly
ensure that the detainees either received probable cause determinations within 48 hours or
were released “is a form of being deliberately indifferent.” As Mr. McFarlane asserts,
there “clearly” was a widespread custom or practice, as evidence by the many Gerstein
violations which occurred.
Sheriff Carothers maintains in response that, not only is there no evidence of a
widespread, unspoken practice operating with the force of law, but that he in fact
implemented an effective policy to ensure detainees either received probable cause
determinations or were promptly released. Sheriff Carothers further argues that the actual
numbers of incidents of overdetention simply do not reflect a practice so longstanding
and well-settled as to imply his acquiescence in any pattern or custom of unconstitutional
conduct. While he concedes that 45 Gerstein violations did occur, he calculates the error
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rate as being only 1.37% of all individuals arrested without warrants and detained at the
Jackson County jail during the relevant time period.
Sheriff Carothers further asserts that neither he, nor any of his staff, ever received
any complaints, in any form, that detainees were being held longer than 48 hours. Sheriff
Carothers acknowledges that, during discovery produced in another litigation involving
allegations akin to Mr. McFarlane’s which were proven to be meritless, he discovered
“several” 1 prisoners who had not been promptly released after 48 hours without probable
cause determinations. Sheriff Carothers insists that this was his first notice of this
problem and that in response he took swift corrective action. Without any other notice of
these constitutional violations, Sheriff Carothers argues he could not have consciously
disregarded such a risk nor acquiesced in a pattern of unconstitutional violations. The 45
Gerstein violations are simply not reflective of a pattern, but rather portray merely
random acts of negligence, he says.
Our analysis causes us to conclude that neither party has satisfied its respective
summary judgment burden.
Mr. McFarlane effectively is arguing that, because several instances of
unconstitutional conduct occurred, a widespread practice must have existed. The
threshold for implicating section 1983 liability requires significantly more than that. A
plaintiff must do more than simply show that the same problem has arisen many times in

1

Mr. McFarlane asserts that discovery in this litigation has revealed 57 Gerstein violations
occurring in 2012 and 2013.Whether or not that is factually correct, our concern here is limited
to the policies and practices in place at the jail during the relevant class action time period.
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order to establish that existence of an unconstitutional policy or practice. Calhoun v.
Ramsey, 408 F.3d 375, 380 (7th Cir. 2005). While repeated instances may imply a
widespread practice, they do not always prove that one existed. Id. To support such an
inference, a plaintiff must present “a sufficient causal link between the policy or custom
and the constitutional deprivation.” Rodriguez, 765 Fed. App’x at 643.
This is where Mr. McFarlane’s theory falls short. Mr. McFarlane has not presented
any evidence that conclusively links his class’s overdetention to a widespread custom or
practice at the jail. The evidence before us indicates that Sheriff Carothers adopted
procedures intended to minimize the overdetention of individuals like Mr. McFarlane, but
that, despite these procedures, 45 individuals still did not receive prompt probable cause
determinations and were overdetained as a result. Mr. McFarlane provides no further
analysis beyond asserting that this is “clearly” indicative of a widespread practice. Mr.
McFarlane’s proof requires more than his speculation “that [his] injuries resulted from a
policy or widespread practice” to order to prevail on summary judgment; “instead, he
must produce some evidence so showing.” Davenport v. Dovgin, 545 Fed.Appx. 535, 538
(7th Cir. 2013).
We concede that the 45 Gerstein violations may ultimately suffice to prove the
existence of an unconstitutional policy or practice; however, Mr. McFarlane has not yet
satisfied his obligation to weave these instances together into a coherent, cognizable
policy. Phelan v. Cook Cnty., 463 F. 3d 773, 790 (7th Cir. 2006). We are left with only
Mr. McFarlane’s speculation, based on the numerous incidents, that Sheriff Carothers

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engaged in a widespread unconstitutional practice or custom. Thus, his request for
summary judgment must be denied.
As for Sheriff Carothers’s reliance on what he calculates to be an insignificantly
low percentage of violations, the existence of a widespread practice is not necessarily a
matter of only arithmetic. No identifiable number or percentage provides a measure in
determining “random acts” from “widespread custom.” Thomas v. Cook County Sheriff’s
Dept., 604 F.3d at 303. Having concluded that Mr. McFarlane failed to meet his burden
of establishing how these discrete instances were translated to a widespread practice, we
also are unable to hold that Sheriff Carothers has shown that these 45 Gerstein violations
cannot be properly viewed as evidence of an unconstitutional policy or practice. While
this is not a significant number of violations in a mathematical sense, it is certainly more
than the minimally required “one or three instances” discussed in the case law as is
necessary to establish a widespread custom. 2

2

We have doubts (or at least questions) regarding Sheriff Carothers’s statistical analysis. Sheriff
Carothers has provided no evidence explaining the accuracy of his numbers, leaving us to rely on
the presentation in his briefs. Sheriff Carothers’s averment that only “1.37%” of detainees had
their rights violated cannot be accurate: the timeframes by which Sheriff Carothers measures the
number of detainees who rights were violated does not match the timeframe by which he
measures the number of detainees whose rights were purportedly not violated: the 45 undisputed
Gerstein violations occurred from January 2014 to August 2015, whereas the total number of
inmates who Sheriff Carothers asserts were arrested without warrants reflect the period of
December 10, 2013 to December 31, 2016–a timeframe exceeding the former by 17 months.
This broadened timeframe may serve as a loose reflection of the arrests that occurred during the
relevant class action period, but it does not provide an accurate portrayal of the ratio of
constitutional to unconstitutional actions during the period when most of the problems appear to
have occurred, to wit, between January 2014 to August 2015. More concerning is Sheriff
Carothers’s failure to present evidence allowing us to indisputably conclude that the Fourth
Amendment rights of the other detainees were not undermined. As Mr. McFarlane explains, as of
the time of briefing, discovery was still proceeding and the parties had not officially determined
who else may also qualify for inclusion the class.
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Sheriff Carothers asserts that, in any event he had no actual knowledge of any of
the Gerstein violations. For this, he cites the lack of complaints received at the jail
without which he says, he did not and could not have known of a problem. 3 However, the
notice requirement, for purposes of determining “conscious disregard” in the context of
deliberate indifference necessary to establish a widespread practice or custom is not
limited to consideration only of Sheriff Carothers’s actual knowledge. King v. Kramer,
680 F.3d 1013, 1021 (7th Cir. 2012); Elliott v. Sheriff of Rush Cty., Ind., 686 F. Supp. 2d
840, 867 (S.D. Ind. 2010). Nor is an absence of complaints dispositive of this issue. See
Hoffman v. Knoebel, No. 4:14-cv-00012-SEB-TAB, 2017 WL 1128534 (Mar. 24, 2017);
Brock v. Casteel, No. 1:13-CV-01577-DML, 2015 WL 3439236, at *10 (S.D. Ind. May
28, 2015). In cases involving a failure to train, the Supreme Court has held that if a
program does not prevent constitutional violations, policymakers may be placed on notice
that a new program is necessary. Brown, 520 U.S. at 403–04 (1997). In such situations,
“their continued adherence to an approach they know or should know has failed to
prevent tortious conduct by employees may establish the conscious disregard of the
consequences, i.e., the deliberate indifference for liability.” Id.
Even if we were to accept that Sheriff Carothers’s established procedures were in
place and executed exactly as he avers, the uncontroverted fact is that his program did not
prevent a certain number of violations. Whether he should have recognized that dozens of

3

These assertions are based on the statements and knowledge of Sheriff Carothers’s and Jail
Commander Charles Murphy’s words. No documents or other evidentiary support substantiate
their claims. To accept these statements as true requires a credibility determination, which is
beyond the purview of summary judgment.
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individuals were being detained longer than 48 hours without probable cause
determinations, placing him on notice that his procedures were flawed and thereby
establishing a conscious disregard of its consequences on his part, is a factual question
not amenable to summary judgment. Brock v. Casteel, No. 1:13-cv-01577-DML-TWP,
2015 WL 3439236, at *12 (S.D. Ind. 2015) (denying defendant’s motion for summary
judgment on Fourth Amendment claim because a reasonable jury could conclude that
defendant was deliberately indifferent when he improperly detained plaintiff for six days)
(citing Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998). (“[T]he question of
whether the defendants’ conduct constituted deliberate indifference is a classic issue for
the fact finder.”). Sheriff Carothers has not put forth sufficient evidence to foreclose a
reasonable jury from finding that he either had constructive knowledge or should have
known of his procedures’ imperfections. Sheriff Carothers thus has not shown that a jury
would be required to find that he did not act with deliberate indifference to the
constitutional violations occurring at the Jackson County jail where certain individuals
were being detained too long without probable cause findings. See Brock, 2015 WL
3439236, at *11-12.
2. Sheriff Carothers’s Constitutional Duties
Sheriff Carothers had an affirmative, independent duty, imposed by Indiana law
and recognized by the Seventh Circuit, to ensure that those detainees who were arrested
without warrants received prompt probable cause determinations, and to release those
who did not receive such determinations within 48 hours. Ind. Code. § 36-2-13-5(a)(7);
Luck, 168 F.3d at 326. Sheriff Carothers cannot “shrug off his federal constitutional
15

responsibilities;” he is accountable for the 45 Gerstein violations. Hoffman, 2017 WL
1128534, at *5 (quoting Luck, 168 F.3d at 326). Beyond the issue of deliberate
indifference under a theory of widespread practice, he had a duty to adopt and enforce
procedures to ensure that detainees arrested without warrants received probable cause
determinations with 48 hours. That is the crux of Mr. McFarlane’s claim: 45 times within
a 19 month period, the policy failed to prevent constitutional violations.
Despite devoting a substantial portion of his arguments in support of summary
judgment to this issue of whether there was a widespread practice of overdetention,
Sheriff Carothers sidesteps the fact that he did not fulfill his constitutional duty to protect
against overdetentions. It is not enough that he had no actual knowledge of constitutional
violations in his jail, thus negating a “widespread custom.” Clearly Sheriff Carothers had
a constitutional duty to protect against the overdetention of arrestees without warrants;
what constitutes a breach of said duty is a less obvious issue. 4 Perhaps a more effective
system of written or computer-based record keeping; many possibilities come to mind.
Mr. McFarlane’s claims call into question the constitutional sufficiency of the
jail’s system and procedures, “show[ing] a failure to develop rules and procedures to
prevent over-detentions when there is an absolute constitutional duty in place.” Whether

4

The parties direct us to two cases discussing this duty and we identified two more: Luck v.
Rovenstine, 168 F.3d 323 (7th Cir. 1999); Coleman v. Frantz, 754 F.2d 719, 722 (7th Cir. 1985);
Hoffman v. Knoebel, No. 4:14-cv-00012-SEB-TAB, 2017 WL 1128534 (S.D. Mar. 24, 2017);
Bickel v. Sheriff of Whitley Cty., No. 1:08-CV-102-TS, 2010 WL 1258165, at *2 (N.D. Ind.
Mar. 26, 2010). These cases are beneficial to the Court’s understanding of this duty and its outer
boundaries, but they do not illuminate the contours of what is necessary for a sheriff to fulfill this
duty.
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and to what extent Sheriff Carothers’s breached this duty is a factual issue that cannot be
resolved on summary judgment. Mangold ex rel. Mangold v. Indiana Dep't of Nat. Res.,
756 N.E.2d 970, 975 (Ind. 2001); Indian Trucking v. Harber, 752 N.E.2d 168, 172 (Ind.
Ct. App. 2001).
Conclusion
For the reasons detailed above, Plaintiff Brandon McFarlane’s Motion for Partial
Summary Judgment is DENIED. Defendant Mike Carothers’s Motion for Summary
Judgment is also DENIED. The case shall proceed accordingly.
IT IS SO ORDERED.

9/30/2019
Date: _________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Christopher Carson Myers
CHRISTOPHER C. MYERS & ASSOCIATES
[e-mail]
Pamela G. Schneeman
STEPHENSON MOROW & SEMLER
[e-mail]
James S. Stephenson
STEPHENSON MOROW & SEMLER
[e-mail]

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