Brown v. Truelove

UNITED STATES DISTICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

JEFFREY BROWN, )

)

Plaintiff, )

)

v. ) Cause No. 1:16-CV-00337-HAB

)

DEPUTY KYLE HARTMAN, DET. )

SHAUN DUNAFIN, WANDA )

TRUELOVE, SHERIFF OF NOBLE )

COUNTY DOUGLAS A. HARP, STATE )

OF INDIANA / INDIANA DEPARTMENT )

OF CORRECTION (seeking prospective )

injunctive relief only), VICKI HALSELL )

and APRIL WILBURN )

)

Defendants. )

OPINION AND ORDER

Plaintiff Jeffrey Brown (“Brown”) spent 41 months incarcerated for failing to register as a

sex offender, when, in fact, he was not required to register at all. He sued a variety of state and

county employees and the Sheriff of Noble County under 42 U.S.C. § 1983 claiming they all

played a role in his wrongful incarceration and in violating his Fourth and Fourteenth Amendment

rights. Additionally, Brown seeks prospective injunctive relief against the State of Indiana and the

Indiana Department of Corrections (“IDOC”). The Defendants have all moved for summary

judgment. (ECF Nos. 117, 123, 129). Brown tendered his opposition to those motions (ECF No.

135)1 to which all the Defendants replied (ECF Nos. 138–140). The motions are now ripe for

consideration.2

FACTUAL BACKGROUND

As a preliminary matter and for simplicity of the record, it is helpful to identify and classify

the various Defendants in this case. Deputy Kyle Hartman (“Deputy Hartman”), Detective Shaun

Dunafin (“Det. Dunafin”), and Wanda Truelove (“Truelove”), a clerk in charge of registering sex

offenders, are all Noble County Sheriff’s office employees sued in their individual capacities

(collectively, the County employees”). April Wilburn (“Wilburn”) was employed by the State as

a Re-Entry Specialist who directed Brown to register as a sex offender upon his release from the

Indiana Department of Correction (“IDOC”). 3 Douglas Harp (“Sheriff Harp”) is the Sheriff of

Noble County and sued in his official capacity. Defendants IDOC and the State of Indiana are

collectively referenced herein as “the State” and sued for prospective injunctive relief only.

A. Brown’s Original Conviction and Subsequent Convictions for Failure to Register

On August 28, 1996, Brown was charged with committing sexual battery and criminal

confinement against a 31-year old female. On December 2, 1996, Brown was convicted of sexual

battery and criminal confinement and was sentenced to 20 years at the IDOC. Neither at the time

he committed the above offense nor on the date of his conviction for that offense did any state

1 The Court’s task of resolving the pending motions was made more difficult by the inadequate briefing from Plaintiff’s

counsel. Counsel’s response to, not one, but three separate motions for summary judgment consisted of seven pages

that failed to comply with this Court’s local rules or Fed.R.Civ.P. 56. Moreover, while counsel makes a host of what

appear to be legal contentions, none of them are supported by any legal authority.

2 Plaintiff also filed a Motion to Strike the “advice of counsel” argument made by certain Defendants claiming that it

was not asserted as an affirmative defense to the allegations in the Second Amended Complaint. (ECF No. 136). This

filing was equally deficient. No supporting brief was filed along with it, no legal authority was cited to justify the

relief sought and the entirety of the motion consists of four sentences.

3 On June 24, 2019, this Court granted a Motion to Dismiss filed by Defendant Vicki Halsell and thus, all claims

against her have been dismissed from the case. (ECF No. 101).

statute mandate that he register as a sex offender. A later enacted statute, as will be explained infra,

did, however, mandate registration for the offense for which Brown was charged and convicted.

In 2009, as he neared the end of his sentence, a State correctional employee advised Brown

that his pre-release paperwork designated him as a lifetime registrant on the sex offender registry

(“the Registry”). (Dep. of Jeffrey Brown, at 14, ECF No. 118-1). He was also advised by former

defendant in this suit, IDOC employee Vicki Halsell, that he was required to register as a sex

offender.

When he was released from prison in February 2009, Brown returned to Noble County and

completed a sex offender registration with the assistance of Truelove. Brown had no discussions

with Truelove as to whether he was actually subject to the registration requirements and there is

no evidence set forth that Truelove made the decision that Brown was subject to registration

requirements. Brown initially registered as instructed. However, between February and June 2009,

Brown changed his address and sought an extension from Truelove to complete his registration.

Prior to completing his registration, Brown was incarcerated on an unrelated criminal matter.

While Brown was incarcerated, Det. Dunafin investigated Brown’s failure to register. That

investigation yielded charges of failure to register to which Brown pled guilty pursuant to a written

plea agreement, (“the 2009 Charge”). Brown was represented by counsel at the time he entered his

plea. The Noble Circuit Court Judge accepted the plea agreement, entered a judgment of conviction

against Brown and sentenced him to six months incarceration. His conviction also constituted a

parole violation. The validity of whether Brown was required to register as a sex offender did not

come up during these criminal proceedings.

In May 2012, while Brown was still incarcerated on the 2009 Charge, Brown began

researching his registry obligations. He wrote Judge Robert Kirsch to inquire whether he had to

register for only ten years rather than for life. (ECF No. 118-1 p. 28). According to Brown, Judge

Kirsch wrote him back indicating that he was not required to be a lifetime registrant, only a ten-

year registrant. (Brown Dep. at 25).

In September 2012, Brown was incarcerated at the New Castle Correctional Facility and

was scheduled to be released once again. Wilburn was an employee at the New Castle Correctional

Facility where she was serving a short temporary assignment in the reentry department. Wilburn

was tasked with reviewing paperwork with offenders re-entering society, including sexual registry

requirements as designated by the State. Wilburn advised Brown to register as a sex offender with

the Sheriff of Noble County, as this was the conclusion of the IDOC. Wilburn did not personally

make the decision that Brown was required to register. Rather she assisted Brown in the completion

of paperwork and had no further communication with him.

Upon his release, the IDOC faxed documentation to the Noble County Sheriff’s

Department indicating that Brown was required to register as a sex offender. Upon his release from

custody, Brown returned to Noble County and met with Truelove, once again, to complete a sex

offender registration form. Again, there was no discussion about whether Brown had to register at

all. Instead, the discussion involved whether he had a lifetime requirement or a ten-year term.

On September 1, 2015, Deputy Hartman filed a four count Information in the Noble Circuit

Court based on Brown’s failure to register, along with an Affidavit of Probable Cause. (ECF Nos.

118-5, 118-6). This Information was approved and signed by the Deputy Prosecuting Attorney. In

the Information, Brown was charged with failure to report his change in address, failure to report

his use of social media, and two charges of omitting information required on social media accounts

(“the 2015 Charge”). The Probable Cause Affidavit also set out Brown’s prior 1996 sexual battery

conviction and his 2009 conviction for failing to register. Based on Deputy Hartman’s, sworn

affidavit, the Noble Circuit Court Judge found probable cause for Brown’s arrest and directed the

clerk to issue an arrest warrant. Brown received counsel and again pled guilty to failing to register.

The Court entered Judgment against Brown and sentenced him to two and a half years

imprisonment.

While in prison, Brown began researching and determined that he was not required to

register as a sex offender. Brown wrote Det. Dunafin to inform him that he was not required to

register. Upon receiving the letter, Det. Dunafin met with Brown and agreed that he was not

required to register. On March 7, 2016, Brown sent Det. Dunafin a letter of formal “protest”

regarding his incarceration and requested the letter be submitted to Sheriff Harp.

Det. Dunafin then prepared a Supplemental Case Report outlining the chronology of events

that led to Brown’s sex offender registration charges. (ECF No. 118-11). On March 8, 2016,

Brown’s attorney filed a Motion to Vacate Conviction and for Dismissal. (ECF No. 118-12). The

Motion was unopposed by the Noble County Prosecutor and the Noble Circuit Court issued its

order vacating the guilty plea and conviction. (ECF No. 118-13).

B. Indiana’s Sex Offender Registration laws and the Indiana Supreme Court

Beginning in 1994 with “Zachary’s Law,” the Indiana General Assembly (“General

Assembly”) began requiring individuals convicted of certain sex crimes to register as “sex

offenders.” See Sex Offender Registration Act (“SORA”) of March 2, 1994, Pub.L.No. 11-1984,

§7 (originally codified as Ind. Code §§ 5-2-12-1, et seq.; current version Ind. Code § 11-8-8-1, et

seq.). Initially, the registration and notification provisions applied to only eight crimes. Over the

years, the General Assembly greatly expanded the reach of SORA’s provisions as well as the time

frame under which a person is required to register. Offenders deemed “sexually violent predators”

are subject to lifetime registration requirements while other offenders must register for a ten-year

minimum commencing upon their release from imprisonment. In addition, the criminal penalties

for failure to register have lengthened as well. The General Assembly delegated administrative

authority over SORA to the IDOC. See Ind. Code § 11-8-2-12.4.

Relevant here, are two SORA expansions/amendments undertaken by the General

Assembly. Effective July 1, 1996, the crime of sexual battery required a defendant to register if

the victim of that crime was under the age of 18. A year later, on July 1, 1997, the Indiana

legislature further extended that provision, requiring registration for convictions of sexual battery

involving a victim of any age. Brown’s offense and conviction occurred in the intervening 12

months between these two amendments.

In 2009, the Indiana Supreme Court decided two cases impacting Brown’s claims here. In

Wallace v. State, 905 N.E.2d 371 (Ind. 2009), the court held that SORA violated Indiana's Ex Post

Facto Clause because it imposed a punitive burden as applied to an offender who committed his

crime—and even served his sentence—before any registration requirement existed. Wallace, 905

N.E.2d at 384. That same day the court also decided Jensen v. State, 905 N.E.2d 384 (Ind. 2009)

and determined that an amendment to SORA, which lengthened the mandatory registration period

for sexually violent predators from ten years to life, did not violate the Ex Post Facto Clause.

C. IDOC’s Interpretation of Wallace and Jensen

Brent Myers is the Director of the IDOC’s Registration and Victim Services. (Dep. Brent

Myers at 7, ECF Nos. 118-2 and 125-3). As part of his job duties and responsibilities, Myers

oversees the IDOC’s efforts with regard to SORA registration, victim notification and victim

services. Specifically, Myers explained:

“We make registration decisions for individuals that are required to register, or that

we believe may have an obligation to register. We work with local sheriff’s

departments. We work with other justice professionals, and that could be helping

them with their understanding of registration. It could be making registration

decisions for them. Ultimately, it’s just communicating about sex and violent

offender registrations here in Indiana.”

(Myers Dep. at 9). His department has the “final say” in determining who is designated as someone

who needs to register under SORA. (Id.). Myers was not directly involved in the decisions as to

Brown’s requirement to register; however, he acknowledges that his staff would have been

responsible for these decisions. (Id. at 10). The IDOC did not expect local sheriff’s departments to

conduct an independent investigation into an offender’s obligation to register. (Myers Dep. at 38).

In 2011-2012, Myers’ office was operating under advice it had received from the Indiana

Attorney General’s (“IAG”) office regarding implementation of the decision in Wallace v. State.

According to Myers, his office was advised by the IAG that its position was that the Wallace

decision was specific to Richard Wallace because of his situation and if any other inmate believed

they should not be subject to the requirements that inmate had to seek a determination from a court.

(Myers Dep. at 25–26). Thus, at the time Brown was released in 2012, Myers office was under the

directive from the IAG’s office that Wallace was an “as applied” decision and Brown remained

under an obligation to register. According to Myers, it was not until March 2016 that the IDOC

conceded that the registration requirements did not apply to Brown. (Id. at 52).

Following the decision in Wallace, new legal advice, and other legal decisions, the Indiana

Department of Correction created an administrative review process and proactively began

removing individuals from the requirement to register as a sex offender without a court order.

(Myers Dep. at 118).

DISCUSSION

“Section 1983 creates a ‘species of tort liability,’ ” Manuel v. City of Joliet, Ill., 137 S. Ct.

911, 916 (2017) (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)), against any person who,

under color of state law, “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,” 42 U.S.C. §

1983. “The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons ...

against unreasonable ... seizures.’ ” Manuel, 137 S. Ct. at 917 (quoting U.S. Const. amend. IV).

“‘A person is seized’ whenever officials ‘restrain[ ] his freedom of movement’ such that he is ‘not

free to leave.’ ” Manuel, 137 S. Ct. at 917 (quoting Brendlin v. California, 551 U.S. 249, 254

(2007)). The Fourth Amendment protects not only against “an initial arrest without probable

cause,” but also any “continued detention in its absence.” Hurt v. Wise, 880 F.3d 831, 843 (7th

Cir. 2018) (citing Manuel, 137 S. Ct. at 918-19), overruled on other grounds by Lewis v. City of

Chi., 914 F.3d 472, 475 (7th Cir. 2019).

Brown asserts claims for false arrest, false imprisonment, and malicious prosecution

against the various defendants, all of which he claims implicate the Fourth Amendment. It is to

these claims, the Court now turns.

a. Individual Capacity Claims against the County Defendants

Brown asserts that Deputy Hartman, Det. Dunafin and Truelove all violated his Fourth

Amendment rights by either directing him to register as a sex offender contrary to law or causing

his wrongful arrests in 2009 and 2015 for failing to register. Neither the briefing or the factual

recitation of the parties is clear on the exact claims Brown is making individually against each of

the County Defendants. Instead, he appears to lump all three individual defendants together to

assert that in their various roles together they deprived him of his Fourth Amendment liberty.

The County Defendants assert that Brown’s sole claim for false arrest arises from the 2015

Charge, presumably against Deputy Hartman, who swore the probable cause affidavit and perhaps

Truelove because she directed him to register when he was released in 2012.4 From the factual

recitation, the Court is unable to ascertain Det. Dunafin’s role in Brown’s alleged constitutional

deprivation related to the 2015 Charge as it appears that he was not personally involved with

securing the arrest warrant or in Brown’s arrest. Rather, the factual record suggests Det. Dunafin

initiated a prompt investigation of Brown’s assertion that he was not required to register, facilitated

Brown’s release, and aided him in having his criminal conviction vacated.

Nevertheless, the Defendants assert that there was no Fourth Amendment violation and,

even if there was, qualified immunity shields them from liability. The crux of their argument is

that at the time of his arrest on the 2015 Charge, there was a valid warrant approved by a Deputy

Prosecuting Attorney and signed by a judicial officer that established probable cause for Brown’s

arrest.

The Court’s consideration of probable cause and qualified immunity go hand in hand.

“Whether police officers had probable cause to arrest a suspect and whether they are entitled to

qualified immunity for the arrest are closely related questions, although qualified immunity

provides the officers with an ‘additional layer of protection against civil liability’ if a reviewing

4 The Defendants assert that because Brown was already in custody on a different violation when he was

held on the 2009 Charge, he was not deprived of his liberty and thus, no claim lies. “It is well-settled that a

plaintiff does not have a claim for false arrest under § 1983 if the plaintiff was already in custody on other

charges at the time of his or her arrest because the plaintiff has not suffered the requisite ‘deprivation of

liberty.’” Bristol v. Queens Cty., No. CV095544JFBAKT, 2018 WL 5077166, at *13 (E.D.N.Y. Mar. 30,

2018), report and recommendation adopted, No. 09CV5544JMAAKT, 2018 WL 4328828 (E.D.N.Y. Sept.

11, 2018) (citing Walker v. Sankhi, 494 Fed. App'x. 140, 143 (2d Cir. 2012)); Jose L. Figueroa v. Town of

North Haven, No. 17-00650, 2017 WL 6045421, at *5 (D. Conn. Dec. 6, 2017) (“Case law is clear that if,

at the time of his or her arrest and prosecution, a plaintiff is already in custody or incarcerated on other

criminal charges, he or she cannot state a claim for false arrest or malicious prosecution under section 1983

because there is no deprivation of his or her liberty interest.”).

Brown does not respond to this argument at all nor does he address in his cursory seven page

response many of the other arguments raised by the Defendants. That said, it is not the Court’s obligation

to scour the record in search of legal theories or to present Brown’s case for him. Thus, the Court shall

only address the circumstances surrounding the 2015 Charge.

court finds that they did not have probable cause.” Williams v. Jaglowski, 269 F.3d 778, 781 (7th

Cir. 2001) (quoting Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir.1989).

“Probable cause to arrest is an absolute defense to any claim under Section 1983 against

police officers for wrongful arrest, false imprisonment, or malicious prosecution.” Mustafa v. City

of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). For this reason, “a person arrested pursuant to a

facially valid warrant cannot prevail in a § 1983 suit for false arrest.” Juriss v. McGowan, 957 F.2d

345, 350 (7th Cir. 1992).

Here, there is no question that Brown was arrested pursuant to a facially valid warrant.

Deputy Hartman submitted the facts as he knew them – Brown was under a registration order,

Brown violated that order, and failing to register is a crime under Indiana law – to a judicial officer

to obtain the arrest warrant. It is undisputed that Deputy Hartman did not independently make the

determination as to whether Brown was required to register. Rather, he merely investigated the

fact that Brown had not registered, provided those facts in a sworn affidavit and received a judicial

determination of probable cause to make the arrest. No one at the county level was charged with

making the determination of whether Brown was required to register. Rather, the undisputed facts

show that the IDOC made the registration determination, as required by Indiana statute, and the

IDOC communicated its determination to the Noble County Sheriff’s department, which was then

tasked with enforcing the registration determination.

That said, an important exception to the general rule immunizing officers from liability

based on a valid warrant exists if a reasonably well-trained officer should have known the

testimony or affidavits provided in support of the warrant would have failed to establish probable

cause, so that he should not have applied for the warrant in the first place. Beauchamp v. City of

Noblesville, Ind., 320 F.3d 733, 742 (7th Cir. 2003) (citing Malley v. Briggs, 475 U.S. 335, 345

(1986)). “[A]n officer cannot rely on a judicial determination of probable cause if that officer

knowingly makes false statements and omissions to the judge such that but for these falsities the

judge would not have issued the warrant.” Yancey v. Carroll Cty., 876 F.2d 1238, 1243 (6th Cir.

1989).

Unfortunately for Brown, the record is barren of any evidence from which the Court could

conclude that Deputy Hartman either knew Brown was not required to register or otherwise

falsified statements to the court in his probable cause affidavit. Ultimately the Defendants

acknowledge that Brown was never required to register, and thus, the premise for the warrant was

invalid; however, at the time of the events, Deputy Hartman did not have this knowledge.

Moreover, at a minimum, Deputy Hartman is entitled to qualified immunity because a

reasonable officer in his situation could have believed that he had probable cause to arrest Brown.

“Qualified immunity attaches when an official's conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Kisela v.

Hughes, ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam) (quoting

White v. Pauly, ––– U.S. ––––, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam)).

“Qualified immunity gives government officials breathing room to make reasonable but mistaken

judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). In

determining whether an official is entitled to qualified immunity, courts examine (1) whether “the

official violated a statutory or constitutional right,” and (2) whether “the right was ‘clearly

established’ at the time of the challenged conduct.” Id. at 735.

“Although qualified immunity is a defense to a § 1983 suit, the burden of meeting the

elements of this two-part test rests on the plaintiff.” Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.

1999). To overcome a defense of qualified immunity, the plaintiff must point to “‘a clearly

analogous case establishing a right to be free from the specific conduct at issue’” or show “that

‘the conduct is so egregious that no reasonable person could have believed that it would not violate

clearly established rights.’” Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (quoting

Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001)).

Brown attempts to meet his burden by citing to the Indiana Supreme Court’s 2009 decision

in Wallace which, he contends, is an analogous case to his and demonstrates his clearly established

right not to be subject to ex post facto laws. There, the Indiana Supreme Court determined that

applying SORA laws enacted after the defendant’s commission, conviction, and service of his

sentence violated the Indiana Constitution. Brown further argues that law enforcement officers are

“presumed to know the law” and “it was not reasonable for the Defendants to believe that Brown

had to register given the clear language and meaning of Wallace.” (ECF No. 135 at 4)

A right is “clearly established” if it is “sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Mullenix v. Luna, ––– U.S. –––

–, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Reichle v. Howards, 566 U.S. 658 (2012)

(internal quotation marks omitted)). In this case, the record points in only one direction and that is

that while Wallace did ultimately effect a change in the law that removed any registration

obligation for Brown, it was not sufficiently clear at either the time Truelove advised Brown to

register in 2012 or when Brown was arrested on the 2015 Charge.

Indeed, the record demonstrates that everyone that made contact with Brown’s case

misunderstood the full import of Wallace in 2012 and 2015. The IDOC, under legal guidance

from the IAG, concluded that absent a judicial determination otherwise, Brown was required to

register despite the holding in Wallace. The IDOC then determined Brown was subject to a

registration requirement, advised Brown, and alerted the Noble County Sheriff of Brown’s

requirement. In turn, this led to Deputy Hartman’s reasonable determination that Brown violated

his registration requirement, causing him to seek an arrest warrant. The Deputy Prosecuting

Attorney signed the Information and the issuing judge further determined that probable cause

existed for issuance of a warrant. In other words, it was reasonable—even if mistaken—for the

county officials, including Deputy Hartman, to believe that there was probable cause to arrest

Brown on the registration violation.

As for the objective reasonableness of the county officials’ conduct, a neutral judge’s

issuance of a warrant is “the clearest indication that the officers acted in an objectively reasonable

manner or ... in ‘objective good faith.’” Messerschmidt v. Millender, –––U.S. ––––, 132 S.Ct.

1235, 1245, 182 L.Ed.2d 47 (2012) (quoting United States v. Leon, 468 U.S. 897, 922–23 (1984)).

But “the fact that a neutral magistrate has issued a warrant authorizing the allegedly

unconstitutional search or seizure does not end the inquiry into objective reasonableness.” Id.

Here, there is even more. While the existence of judicially determined probable cause, is

not by itself determinative, whether legal guidance was sought aids in the assessment of the

objective reasonableness of the Defendants’ actions.5 Certainly, officers will attain some

reasonable level of proficiency in understanding state laws during the ordinary course of their

profession, but qualified immunity does not require a non-legally trained officer to know the

5 Brown moves to strike the evidence that the Deputy Prosecuting Attorney approved Deputy Hartman’s affirmation

in the Information claiming that it was not pled as an affirmative defense and prejudices the Plaintiff. This argument

is problematic for two reasons. First, it should be no surprise to Plaintiff that the Deputy Prosecuting Attorney

approved the Information because the signature itself appears on the Information. Thus, Plaintiff’s failure to conduct

discovery on this issue is not due to any surprise revelation by the Defendants. Second, the Defendants did properly

plead qualified immunity and whether the Defendants received advice from trained lawyers is relevant to the

determination of whether they acted objectively reasonable. See Burritt v. Ditlefsen, 807 F.3d 239, 251 (7th Cir. 2015)

(“Further bolstering Ditlefsen’s qualified immunity is the fact that she consulted with the Polk County District

Attorney and her supervisor before arresting Burrit.”); Kijonka v. Seitzinger, 363 F.3d 645. 648 (7th Cir.

2004)(“Consulting a prosecutor may not give an officer absolute immunity from being sued for false arrest, but it goes

far to establish qualified immunity.” (internal citations omitted). Accordingly, Brown’s Motion to Strike (ECF No.

136) is DENIED.

precise ins-and-outs of every state law on record. This would defeat one of the purposes of

qualified immunity, which is to prevent the threat of personal liability from inhibiting officers in

the exercise of their duties. See Messerschmidt, 132 S.Ct. at 1244 (“Qualified immunity gives

government officials breathing room to make reasonable but mistaken judgments and protects all

but the plainly incompetent or those who knowingly violate the law.” (internal quotation marks

omitted)).

This is not to say that officers are relieved from the responsibility of understanding the

laws they are charged with enforcing. But in this case, it is enough that the legal determination as

to registration was made by the IDOC with guidance from the IAG, not by any of the County

Defendants. There is no evidence that any of the County Defendants were aware that Brown was

not required to register and persisted in arresting and prosecuting him. Moreover, the 2015 Charge

was approved by the Deputy Prosecuting Attorney. And, it is again worth emphasizing that a host

of jurists misapplied the SORA laws. Not only did the IAG erroneously interpret Wallace but a

deputy prosecuting attorney approved the filing of the Information, a judicial officer authorized an

arrest warrant, Brown’s defense counsel for the 2015 Charge failed to raise the issue in his criminal

proceeding, and the prosecuting attorney accepted a guilty plea to a crime that Brown didn’t

commit. Under these circumstances, the Court concludes as a matter of law that the Defendants

did not violate clearly established law in 2012 (when Truelove advised Brown to register) or in

2015 (when he was arrested for failing to register). The County Defendants are therefore, entitled

to qualified immunity and their Motion for Summary Judgment is GRANTED.

b. Official Capacity Claims Against Sheriff Harp

Brown has also sued Sheriff Harp in his official capacity. Claims alleged against Sheriff

Harp in his official capacity are the same as naming Noble County as a defendant. See Sipe v.

Decatur Cty. Sheriff, No. 1:12-cv-1064-SEB-TAB, 2013 WL 4763550, at *1 (S.D. Ind. Sept. 4,

2013) ("A claim against a person in his or her ‘official capacity’ is an alternative way of asserting

a claim against a governmental entity …."). It is well established that “a local government may not

be sued under § 1983 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, 694 (1978). Rather, under Monell, a constitutional

deprivation may be attributable to a municipality only “when execution of a government’s policy

or custom … inflicts the injury.” Houskins v. Sheahan, 549 F.3d 480, 493 (7th Cir. 2008)

(quotation marks and citation omitted). A plaintiff can show that a constitutional violation resulted

from the execution of a municipal policy or custom in the following three ways: “(1) an express

policy causing the loss when enforced; (2) a widespread practice constituting a ‘custom or usage’

causing the loss; or (3) a person with final policymaking authority causing the loss.” Walker v.

Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (quoting Chortek v. City of Milwaukee, 356 F.3d 740,

748 (7th Cir. 2004)).

The Court need not expend much effort on this claim as Brown has proffered no facts

showing any custom or policy of Noble County or the Sheriff’s Department caused his injury.

Rather, Brown simply states, without any factual designation or citation to the record whatsoever,

that “the individual actors acting at the behest of the Sheriff did so because they were improperly

trained, failing to take in to consideration the Indiana Supreme Court case of Wallace and its

teachings.” (ECF No. 135 at 5). Absent any evidence to support such a statement, Brown’s claim

against Sheriff Harp and Noble County fails. See Hughes v. City of Chi., 673 F.Supp.2d 641, 651

(N.D.Ill. 2009)(“[T]o survive summary judgment, Plaintiffs must set forth specific facts showing

that there is a genuine issue of material fact regarding the existence of such a policy, custom, or

usage.”). Accordingly, summary judgment is GRANTED on the official capacity claim against

Sheriff Harp.

c. Claim against Wilburn

Next, Brown asserts that Wilburn participated in his malicious prosecution by wrongfully

directing him to register when he was released from the IDOC in 2012.6 To state a viable federal

malicious prosecution claim, a plaintiff must “alleg[e] a violation of a particular constitutional

right, such as the right to be free from unlawful seizures under the Fourth Amendment, or the right

to a fair trial under the Due Process Clause.” Welton v. Anderson, 770 F.3d 670, 673 (7th Cir.

2014), reh’g denied (citing Serino v. Hensley, 735 F.3d 588, 592 (7th Cir. 2013)). Because the

federal malicious prosecution claim fills a void in state law, it borrows the elements of the state

law claim. Katz-Krank v. Hasket, 843 F.3d 641, 649 (7th Cir. 2016). Under Indiana law, the

elements of a malicious prosecution claim are that the defendant (1) instituted or caused to be

instituted an action against the plaintiff, (2) with malice and (3) without probable cause, and (4)

the action terminated in plaintiff’s favor. Id. (quoting City of New Haven v. Reichhart, 748 N.E.2d

374, 378 (Ind. 2001).

Applying these elements to the record before the Court, Wilburn is clearly entitled to

summary judgment. Brown has articulated no facts from which a reasonable jury could conclude

6 This Court has previously dismissed from this action, Vicki Halsell, who operated in the same capacity

as Wilburn, but in 2009. (ECF No. 101). In that Opinion and Order, the Court determined that Brown’s

Second Amended Complaint failed to state a claim for malicious prosecution against Halsell. In reaching

that conclusion, the Court noted that Halsell’s directive that Brown register in 2009 was a “mistake of law”

occurring prior to the Indiana Supreme Court’s decision in Wallace and that nothing in the Second Amended

Complaint “plausibly suggests that Halsell’s directive was borne out of personal animosity toward Plaintiff,

or that she did not properly investigate the requirements of the law at the time she directed Plaintiff to

register.” (ECF No. 101 at 5–6). The Court further concluded that Halsell had no authority to initiate

proceedings against Brown for failing to register and malicious prosecution claims must allege more than

an arrest and detention without probable cause.

that Wilburn either “instituted or caused to be instituted” an action against him with malice. There

is no evidence that Wilburn was the decisionmaker with respect to whether Brown had to register,

no evidence that she caused any criminal proceeding to be filed against Brown, and absolutely no

evidence of personal animosity or other evidence of malice. Rather the undisputed facts are that

Wilburn acted in an administrative capacity providing the sex registration information to Brown.

She had no interaction with Brown upon his release and did not participate in the criminal

proceedings instituted against Brown. Wilburn’s Motion for Summary Judgment is GRANTED.

d. Injunctive Relief Against the State

Finally, Brown has sued the IDOC and the State of Indiana for prospective injunctive relief.

Although both the State of Indiana and the Indiana Department of Correction are immune from

suits for monetary damages under the Eleventh Amendment, see Wynn v. Southward, 251 F.3d

588, 592 (7th Cir. 2001) and Alabama v. Pugh, 438 U.S. 781 (1978), under Ex parte Young, 209

U.S. 123, 159-60 (1908), a plaintiff may file “suit[ ] against state officials seeking prospective

equitable relief for on-going violations of federal law....” Marie O. v. Edgar, 131 F.3d 610, 615

(7th Cir. 1997). See also Indiana Protection and Advocacy Ser-vices v. Indiana Family and Social

Services Admin., 603 F.3d 365, 370-72 (7th Cir. 2010) (discussing exceptions to the Eleventh

Amendment’s bar against actions in federal court against state officials acting in their official

capacities); Gautreaux v. Romney, 448 F.3d 731, 735 (7th Cir. 1971) (holding that the doctrine of

sovereign immunity “does not bar a suit such as this which is challenging alleged unconstitutional

and unauthorized conduct by a federal officer”).

However, to invoke this doctrine, the Plaintiff must name specific parties as defendants in

their official capacity. The proper defendants are those who bear “‘legal responsibility for the flaws

[plaintiffs] perceive in the system’ and not one[s] from whom they ‘could not ask anything ... that

could conceivably help their cause.’” Sweeney v. Daniels, No. 2:12–cv81–PPS/PRC, 2013 WL

209047, *3 (N.D.Ind. Jan. 17, 2013) (quoting Hearne v. Bd. of Educ., 185 F.3d 770, 777 (7th

Cir.1999)). Brown has not done so here. He names only the State of Indiana and the IDOC and

not any state officials charged with implementing or decision-making under SORA.7

Moreover, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh

Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1051 (7th Cir. 2013). As the

record reflects, on March 8, 2016, the Noble County Circuit judge vacated Brown’s conviction for

failing to register as a sex offender and dismissed the action. Thus, Brown is not presently suffering

an ongoing violation because he is not under any obligation to register as a sex offender and is not

incarcerated for failing to register. As a result, Brown’s claim for injunctive relief against the IDOC

and the State of Indiana is barred by the Eleventh Amendment and does not fit within the narrow

exception carved out by Ex parte Young. The State Defendants’ Motion for Summary Judgment is

GRANTED.

CONCLUSION

Based on the foregoing, the Defendants’ Motions for Summary Judgment (ECF Nos. 117,

123, and 129) are all GRANTED. The Plaintiff’s Motion to Strike (ECF No. 136) is DENIED. The

Clerk is directed to enter judgment in favor of the Defendants and against Plaintiff.

7 Part of the rationale for requiring state officials to be named is that § 1983 requires suit against a “person.”

“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person

under § 1983 because ‘official capacity actions for prospective relief are not treated as actions against the

State.’” Will v. Michigan Dep't of State Police, 491 U.S. 58, at 71 n.10 (1989) (quoting Kentucky v. Graham,

473 U.S. 159, 167 n.14 (1985)).

SO Ordered August 26, 2020

s/ Holly A. Brady

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT