MCFARLANE v. CAROTHERS
REVISED SCHEDULING ORDER ON PENDING MOTIONS - 72 Motion for Reconsideration is GRANTED in part. 22 The motion for class certification is remanded to the Magistrate Judge for further consideration in light of the Ewell decision on the class cert ification issues as well as the pending motions for summary judgment. 52 Motion for Summary Judgment and 58 Motion for Summary Judgment are administratively closed and shall remain closed until such time as her Report and Recommendation are issued and the time for objections has passed. See Order for details. Signed by Judge Sarah Evans Barker on 9/29/2017. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
MIKE CAROTHERS, Jackson County
REVISED SCHEDULING ORDER ON PENDING MOTIONS
A review of recent filings docketed in this cause reveals the following chronology:
In January 2017, Plaintiff McFarlane’s Motion to Certify Class and Motion to
Appoint Class Counsel were referred for a hearing and a Report and Recommendation by
the Magistrate Judge (Dkt. No. 48). Her Report and Recommendation was entered on
February 9, 2017 (Dkt. No. 51).
The next day, February 10, 2017, Plaintiff filed his fully briefed Motion for
Summary Judgment (Dkt. Nos. 52 & 53).
On February 23, 2017 (Dkt. No. 54), Defendant Sheriff Carothers filed his
objection to the Magistrate Judge’s Report and Recommendation. Defendant thereafter
sought an extension of time to file his combined motion for summary judgment and
response to plaintiff’s motion for summary judgment, and the extensions of time were
granted (Dkt. No. 57). Shortly thereafter, on March 20, 2017, Defendant filed his Motion
for Summary Judgment (Dkt. No. 58).
On March 31, 2017, an Order Adopting the Report and Recommendations by the
Magistrate Judge and overruling Defendant’s objection was entered by the undersigned
judge. A motion to reconsider that order or in the alternative to decertify the class was
filed by Defendant on April 26, 2017 (Dkt. No. 72). Plaintiff filed his response in
opposition to the Motion for Reconsideration on May 10, 2017 (Dkt. No. 75).
Thus, there are currently pending for decision the motion to reconsider the order
adopting the Magistrate Judge’s Report and Recommendation and the parties’ respective
motions for summary judgment.
While these motions were pending on our docket, the Seventh Circuit handed
down on April 10, 2017, a decision in the case of Ewell v. Toney, 853 F.3d 911 (7th Cir.
2017), a § 1983 claim in which an arrestee had sued police detectives and the district
attorney for having detained her without probable cause and for conspiring to deprive her
of her constitutional rights by false arrest and unlawful detention. The Seventh Circuit, in
reviewing the district court’s dismissal of the complaint, held that because Ewell had
received credit on her sentence of detention for the time she claims she was unlawfully
held in custody without a probable cause determination or a bond hearing, she could not
succeed on her § 1983 claim challenging her initial detention.
In his objection to the Magistrate Judge’s order on Plaintiff McFarlane’s request
for class certification, Defendant Sheriff Carothers relied on the Seventh Circuit’s
opinion in Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013), which held that “a section
1983 plaintiff may not receive damages for time spent in custody, if that time was
credited to a valid and lawful sentence.” Bridewell, 730 F.3d at 677. The magistrate
judge and the undersigned judge distinguished Bridewell from this case. But the
objection did not include a discussion of the Ewell precedent, because that decision had
not yet been handed down by the appellate court. Neither did the Court’s Order Adopting
the Magistrate Judge’s Report and Recommendation cite the Ewell case for the same
reason—it had not yet been decided.
However, Defendant’s Motion to Reconsider our Order Adopting the Report and
Recommendation does cite and discuss in detail the Ewell decision. Similarly, while no
discussion of the Ewell decision appeared in the summary judgment briefing, by the time
of the filing of the May 1, 2017 Reply Brief by Defendant in Support of his Motion for
Summary Judgment, the Ewell decision was available and thus included in the briefing.
But that mention appears for the first time in Defendant’s reply brief, which means that
Plaintiff has not had an opportunity to respond to Defendant’s arguments and the impact
of this recent authority on which Defendant relies and the Court must now consider.
Ewell is important to our resolution of the issues pending before us. Besides
providing the Seventh Circuit’s most recent thinking on these issues, Ewell’s holding will
at least inform, and could control the outcome of our rulings on the pending motions. A
full discussion of that holding and its application to the case at bar by the parties is
desirable, indeed, in the interest of fairness, it is necessary.
Accordingly, the Court sets the following schedule going forward to allow for a
full and fair consideration of the Ewell decision:
Our ruling on Defendant’s Motion to Reconsider the Order Adopting the Report
and Recommendation is hereby granted in part;
The motion for class certification is remanded to the Magistrate Judge for further
consideration in light of the Ewell decision on the class certification issues as well as the
pending motions for summary judgment.
Because the Court anticipates that the Magistrate Judge’s revised report will
provide a careful and complete analysis of the Ewell case, the pending motions for
summary judgment are hereby administratively closed and shall remain closed until
such time as her Report and Recommendation are issued and the time for objections has
passed. If at that time the motions for summary judgment warrant refiling in their current
form, or require revisions to take into account the Report and Recommendation analysis,
each party is permitted to refile its respective motion and briefs, without requiring
further leave of court.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Ronald J. Semler
Ilene M. Smith
James S. Stephenson
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