Klein v. Mele

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

BRANDON E. KLEIN,

Plaintiff,

v. CAUSE NO.: 2:19-CV-484-TLS-JPK

OFFICER TIMOTHY MELE, individually

and in his official capacity, OFFICER

BRIAN DANIELS, individually and in his

official capacity, and the TOWN OF

SCHERERVILLE,

Defendants.

OPINION AND ORDER

This matter is before the Court on the Defendants’ Motion to Dismiss [ECF No. 13], filed

by Defendants Officer Timothy Mele, Officer Brian Daniels, and the Town of Schererville. For

the reasons set forth below, the Court grants in part and denies in part the motion.

MOTION TO DISMISS STANDARD

“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the

viability of a complaint by arguing that it fails to state a claim upon which relief may be

granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014) (citing Fed.

R. Civ. P. 12(b)(6); Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1080 (7th Cir.

1997)). When reviewing a complaint attacked by a Rule 12(b)(6) motion, a court construes the

complaint in the light most favorable to the non-moving party, accepts the factual allegations as

true, and draws all inferences in the non-moving party’s favor. Bell v. City of Chicago, 835 F.3d

736, 738 (7th Cir. 2016). “Factual allegations must be enough to raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556).

In reviewing a motion to dismiss, a court considers “the complaint itself” as well as

“documents attached to the complaint, documents that are critical to the complaint and referred

to in it, and information that is subject to proper judicial notice.” Phillips v. Prudential Ins. Co.

of Am., 714 F.3d 1017, 1019–20 (7th Cir. 2013) (quoting Geinosky v. City of Chicago, 675 F.3d

743, 745 n.1 (7th Cir. 2012)). The Defendants attached eleven exhibits to their motion, with

Exhibits A through F consisting of the probable cause affidavit, information, and order of

probable cause related to the two prosecutions in this case. See ECF Nos. 14-1 through 14-6. The

Court considers these public records to the extent they show that the proceedings occurred, the

facts of the representations made therein, and the stated bases for the probable cause

determinations; the Court does not consider them for the truth of the facts regarding the two

underlying incidents. See Fed. R. Evid. 201; Daniel v. Cook County, 833 F.3d 728, 742 (7th Cir.

2016) (“Courts routinely take judicial notice of the actions of other courts or the contents of

filings in other courts.”). The Court does not consider Defendants’ Exhibits G through K because

they relate solely to the issue of whether the prosecutions terminated in the Plaintiff’s favor—an

issue the Court does not reach. See ECF Nos. 14-7 through 14-11. For the same reason, the Court

does not consider the Plaintiff’s Response Exhibits 1 through 5. See ECF Nos. 26-1 through 26-

5. Finally, the Court does not consider the Plaintiff’s Response Exhibit 7, a video of his presence

at the SPD on September 22, 2015, because the Plaintiff alleges that he was arrested for violating

the Protective Order, not for creating a disturbance at the SPD. See Compl. ¶ 40; Pl. Resp. Ex. 7,

ECF Nos. 26-7, 27.

PROCEDURAL AND FACTUAL BACKGROUND

On December 16, 2019, Plaintiff Brandon E. Klein filed a Complaint [ECF No. 1] against

Defendants Officer Timothy Mele, Officer Brian Daniels, and the Town of Schererville under 42

U.S.C. § 1983, alleging claims of malicious prosecution in violation of his Fourth and Fourteenth

Amendment rights in relation to his arrests for violating a state court order of protection on

September 22, 2015, and December 25, 2016. The following facts are taken from the allegations

of the Complaint, the documents attached to the Complaint, and public records of which the

Court takes judicial notice.

The Plaintiff and Leanne R. Salatas were married on May 18, 2013, and they separated

on October 31, 2014. Compl. ¶ 11, ECF No. 1. They later divorced. Id. They had a child in

November 2014. Id. at ¶ 12.

On August 21, 2015, Salatas filed a petition for the issuance of a protective order against

the Plaintiff, and an Ex Parte Order for Protection (Protective Order) was granted the same day

by the Lake Superior Court, Division 3. Id. at ¶ 13. The Protective Order contained two

restrictions regarding communications. Id. at ¶ 14. First, the Plaintiff was “enjoined from

threatening to commit or committing acts of domestic or family violence or stalking against

[Salatas].” Id.; Compl. Ex. 1 at 2, ECF No. 1-5. Second, the Plaintiff was “prohibited from

harassing, annoying, telephoning, contacting, or directly or indirectly communicating with

[Salatas] except: Any communication or contact necessary for the exercise of [the Plaintiff’s]

parenting time and any communication involving the parties’ minor child.” Compl. ¶ 14; Compl.

Ex. 1 at 2. The Protective Order further provided that “[the Plaintiff] shall be excluded from

[Salatas’] residence,” that “[the Plaintiff] is ordered to stay away from the residence, school

and/or place of employment of [Salatas],” and that “[the Plaintiff] is further ordered to stay away

from the following place(s) that is/are frequented by [Salatas] and/or [Salatas’] family or

household members: . . . 504 Benco Court . . . .” Compl. ¶ 15; Compl. Ex. 1 at 2–3. The Plaintiff

was “expressly permitted to engage in communications necessary to exercise his parenting time

or involving his minor child.” Compl. ¶ 16. The Protective Order was in effect at all times

relevant to the facts alleged in the Complaint. Id. at ¶ 17.

In Count I, the Plaintiff brings a claim of “malicious prosecution,” alleging that Officer

Mele and the Town of Schererville violated his right to due process right under the Fourth and

Fourteenth Amendments based on the following events. Id. at ¶ 26. On December 25, 2016, at

12:10 p.m., Salatas arrived at the Schererville Police Department (SPD) to file a report regarding

an allegedly annoying email she had received from the Plaintiff. Id. at ¶ 19; Compl. Ex. 2, ECF

No. 1-6. In her meeting with the SPD, Salatas admitted that she failed to exchange custody of

their minor child at the appropriate time, as was the Plaintiff’s right under the then-existent

parenting agreement, and had insisted that the Plaintiff appear in person instead of sending his

mother to pick up their child. Compl. ¶ 20; Compl. Ex. 2. In response to Salatas’ failure to turn

over custody of their child the Plaintiff sent Salatas an email expressing his concern over Salatas’

failure to hand over custody of their child as was his right. Compl. ¶ 21; Compl. Ex. 3, ECF No.

1-7. The email provides:

Leanne--- I would like to exercise custody of my daughter without being around

you. As you know, my mother showed up at mcdonalds in crown point this morning

to pick up [S.S.]; however, you refused to give [S.S.] to my mother, demanding my

presence before you. I was not there this morning because my fiancé and I attended

midnight mass last night with some friends. Hence, why I suggested a drop off time

for [S.S.] at 10am this morning instead of 9am. As you know, for arguments sake,

I agreed to your persistent demand for a 9am drop off time.

One minute you want an order of protection against me and the next minute you

demand me to be either at your house alone with you or meeting you in some public

place to exchange [S.S.] with you. One minute you want an order of protection, the

next minute you want to reconcile “our relationship” and get back in bed so you

can try and get pregnant again. Your conflicting mood swings/changes in behavior

are concerning to say the least, and I do not feel comfortable being around you. To

be quite frank, the same behavior has me concerned for the safety and well being

of my daughter. I’m not sure what’s wrong with you, but you may want to start

thinking about what’s in the best interest of [S.S.]. Perhaps returning to counseling

at Crown Counseling would be beneficial not only for you, but for everyone else

involved, including [S.S.].

Brandon

Compl. Ex. 3 (emphasis added). The Plaintiff alleges that, when read in context, nothing in the

email can be reasonably interpreted as violating the protective order. Compl. ¶ 22.

On January 3, 2017, Officer Mele met with Prosecutor Timothy Brown regarding this

case, Brown reviewed the email, and Brown and Officer Mele agreed that the two sentences of

the email italicized above violated the Protective Order. Compl. Ex. 2 at 1. Officer Mele reported

that Brown requested that Officer Mele file charges of invasion of privacy. Id. at 2. On January

10, 2017, a warrant was issued for the Plaintiff’s arrest for invasion of privacy based on the

email. Compl. ¶ 23; Def. Ex. C, ECF No. 14-3. The Plaintiff alleges that the arrest warrant was

issued despite the facially appropriate subject matter of the email, the lack of vulgarity, and the

absence of any clear intent to do anything other than negotiate with Salatas to participate in his

parenting time. Id. at ¶ 23. On June 16, 2017, the Plaintiff was arrested out of state at his place of

business by a Chicago fugitive task force, causing him the humiliation of being arrested in front

of his peers and colleagues. Id. at ¶ 24. The Plaintiff was not released from jail until July 17,

2017. Id. at ¶ 25.

The Plaintiff alleges that Officer Mele acted maliciously, with intent, or with reckless

disregard of the Plaintiff’s protected rights when he initiated the prosecution of the Plaintiff by

swearing, under oath, that the Plaintiff had committed a crime of invasion of privacy by violating

the Protective Order and that Officer Mele intentionally interpreted two sentences of the email

out of context, both of which the Plaintiff alleges were directly linked to his daughter and the

coordination of custody exchanges with his ex-wife in a reasonable manner. Id. at ¶ 27. The

Plaintiff alleges that there was no probable cause for his arrest, id. at ¶ 30, and that the

prosecution terminated in his favor, id. at ¶ 31.

In Count II, also for “malicious prosecution,” the Plaintiff alleges that Officer Daniels

and the Town of Schererville violated his constitutional right to due process under the Fourth and

Fourteenth Amendments based on the following events that took place over a year earlier. Id. at

¶ 35. On September 22, 2015, the Plaintiff was expecting a critical piece of mail for his job,

which was to be delivered to 504 Benco Court, Salatas’ home. Id. at ¶ 36. The Plaintiff, knowing

that the Protective Order forbade him access to that address, went to the SPD to find out whether

he was permitted to pick up his mail. Id. at ¶ 37. The Plaintiff was told by the SPD that he was

permitted to go to the address to pick up his mail if an officer was present. Id. The Plaintiff was

also informed that an officer was being dispatched to the address. Id.

The Plaintiff then went to 504 Benco Court with his mother to retrieve the mail, at which

time Officer Daniels, who was present, told the Plaintiff’s mother that the Plaintiff “needed to

leave immediately as he is restrained from this residence.” Id. at ¶ 38; Compl. Ex. 4 at 2, ECF

No. 1-8. Without significant delay and without ever fully leaving the vehicle, the Plaintiff left in

the vehicle being driven by his mother. Compl. ¶ 38; Compl. Ex. 4 at 2.

In the Arrest Narrative, Officer Daniels reported that the Plaintiff had been told to come

to the SPD to obtain his mail. Compl. ¶ 39; Compl. Ex. 4 at 2. Officer Daniels further reported

that he contacted deputy prosecutor Bruno and that Bruno advised that Officer Daniels could file

charges for invasion of privacy. Compl. Ex. 4 at 2. When the Plaintiff arrived at the SPD, his

mail was not there, and he waited patiently to discuss the situation with an officer. Compl. ¶ 39.

While he was waiting, the Plaintiff was arrested and taken into custody for violating the

Protective Order based on his presence at 504 Benco Court. Id. at ¶ 40.

The Plaintiff alleges that Officer Daniels acted maliciously, with intent, or with reckless

indifference to the Plaintiff’s protected rights when he initiated a prosecution of the Plaintiff by

swearing, under oath, that the Plaintiff had committed a crime of invasion of privacy by violating

a Protective Order despite the Plaintiff have been told that he was permitted to appear at the

address for the purposes of retrieving his mail and despite Officer Daniels’ first-hand knowledge

that the Plaintiff had neither approached Salatas or even fully exited the vehicle prior to

following Officer Daniels’ direction to exit the area. Id. at ¶ 41. The Plaintiff alleges that,

because he acted upon the advice of the SPD to go to the address to obtain his mail, he lacked the

necessary “knowing” element needed for a violation of a protective order and Officer Daniels

knew or should have known this at the time of the Plaintiff’s arrest. Id. at ¶ 42. The Plaintiff

alleges that there was no probable cause for his arrest, id. at ¶ 45, and that the prosecution

terminated in his favor, id. at ¶ 46.

Against the Town of Schererville, the Plaintiff alleges in Count I that the Town failed to

sufficiently train Officer Mele and/or failed to develop sufficient policies, procedure, and

practices to ensure officers like Officer Mele correctly interpret the specific contents of

protective orders prior to making arrests and that this failure constitutes a “widespread practice

or custom.” Id. at ¶¶ 28, 29. In Count II, the Plaintiff makes the same allegations against the

Town as to Officer Daniels. Id. at ¶¶ 43, 44.

ANALYSIS

The Complaint frames the Plaintiff’s claims uniquely as ones of “malicious prosecution,”

alleging that the Defendants deprived him of “federal protected rights, including, but not limited

to, the right to due process deriving from the United States Constitution and its Fourth and

Fourteenth Amendments.” Id. at ¶¶ 2, 9, 26, 35. Count I brings a claim for “malicious

prosecution,” alleging that the SPD’s and Officer Mele’s wrongful actions directly caused the

Plaintiff’s “detention and prosecution” related to the December 25, 2016 incident. Id. at ¶ 33.

Similarly, Count II for “malicious prosecution” alleges that the SPD’s and Officer Daniels’

wrongful actions directly caused the Plaintiff’s “detention and prosecution” related to the

September 22, 2015 incident. Id. at ¶ 48. In the motion to dismiss, the Defendants argue that the

Plaintiff has failed to state a claim of malicious prosecution, that Officers Mele and Daniels are

entitled to qualified immunity, and that the Plaintiff has failed to state a claim of Monell liability

against the Town of Schererville. In light of the developments in Fourth and Fourteenth

Amendment jurisprudence, the Plaintiff’s claims are properly framed under the Fourth

Amendment for unlawful pretrial detention, and only the claim against Officer Daniels survives.

To begin, the Plaintiff’s Complaint specifically invokes Julian v. Hanna, alleging that his

malicious prosecution claims may be brought in federal court because of the inadequate remedies

offered by the State of Indiana. See Compl. ¶ 2 (citing Julian v. Hanna, 732 F.3d 842 (7th Cir.

2013)). Indeed, the Seventh Circuit has held that a § 1983 claim of malicious prosecution is “not

actionable if there is an adequate state-law remedy.” Howlett v. Hack, 794 F.3d 721, 727 (7th

Cir. 2015) (quoting Newsome v. McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001), abrogated on

other grounds by Manuel v. City of Joliet, 137 S. Ct. 911 (2017) (“Manuel I”)). Although Indiana

state law recognizes the tort of malicious prosecution, the Indiana Tort Claims Act shields

government employees from these claims. Id. (citing Ind. Code § 34-13-3-3(6)). As a result,

because “Indiana state law does not provide an adequate remedy for malicious prosecution,” a

malicious prosecution claim can be brought against a police officer under § 1983 for the

“violation of a particular constitutional right.” Serino v. Hensley, 735 F.3d 588, 592, 593 (7th

Cir. 2013) (citing Julian, 732 F.3d at 847–48); see Howlett, 794 F.3d at 727–28.

To succeed on such a claim of malicious prosecution under § 1983, “a plaintiff must

demonstrate that (1) he has satisfied the elements of a state law cause of action for malicious

prosecution; (2) the malicious prosecution was committed by state actors; and (3) he was

deprived of liberty.” Welton v. Anderson, 770 F.3d 670, 674 (7th Cir. 2014) (citing Reed v. City

of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996)). The elements of a malicious prosecution claim

under Indiana law are: “(1) the defendant instituted or caused to be instituted an action against

the plaintiff; (2) the defendant acted maliciously in so doing; (3) the defendant had no probable

cause to institute the action; and (4) the original action was terminated in the plaintiff’s favor.”

Id. (citing Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009)). The

Defendants seek dismissal on the basis that the Plaintiff cannot meet elements two through four

as to his underlying detentions and prosecutions.

However, neither party addresses the threshold issue of what constitutional violation

underpins the Plaintiff’s § 1983 claims. The Seventh Circuit Court of Appeals has consistently

held that “‘[f]ederal courts are rarely the appropriate forum for malicious prosecution claims’ . . .

because ‘individuals do not have a federal right not to be summoned into court and prosecuted

without probable cause.’” Serino, 735 F.3d at 593 (quoting Ray v. City of Chicago, 629 F.3d 660,

664 (7th Cir. 2011)); see also Young v. City of Chicago, 987 F.3d 641, 646 (7th Cir. 2021)

(“[T]here is no such thing as a constitutional right not to be prosecuted without probable cause.”

(quoting Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018) (“Manuel II”))). Thus, a

plaintiff bringing a § 1983 malicious prosecution claim must allege a violation of a particular

constitutional right. Welton, 770 F.3d at 673–74 (quoting Serino, 735 F.3d at 592; citing Baker v.

McCollan, 443 U.S. 137, 140 (1979) (“[I]t is necessary to isolate the precise constitutional

violation with which [the defendant] is charged . . . . The first inquiry in any § 1983 suit,

therefore, is whether the plaintiff has been deprived of a right secured by the Constitution and

laws.”)); see Manuel I, 137 S. Ct. at 920 (recognizing that the threshold inquiry in a § 1983 suit

is to “‘identify the specific constitutional right’ at issue” (quoting Albright v. Oliver, 510 U.S.

266, 271 (1994))); Howlett, 794 F.3d at 727–28.

Prior to the Plaintiff filing his Complaint in this case, the Seventh Circuit clarified that,

after the Supreme Court decision in Manuel I, “‘Fourth Amendment malicious prosecution’ is

the wrong characterization” for a claim of unlawful pretrial detention. Manuel II, 903 F.3d at

670. “There is only a Fourth Amendment claim—the absence of probable cause that would

justify the detention.” Id. (citing Manuel I, 137 S. Ct. at 917–20); see also Stone v. Wright, 734

F. App’x 989, 989 (7th Cir. 2018) (“Manuel [I] says that there is no such thing as ‘Fourth

Amendment malicious prosecution.’ Wrongful arrest or detention creates a wrongful-seizure

claim, plain and simple, and the constitutional objection is to wrongful custody rather than to a

criminal prosecution.” (citing Manuel I, 137 S. Ct. at 917–20)). Thus, “all § 1983 claims for

wrongful pretrial detention—whether based on fabricated evidence or some other defect—sound

in the Fourth Amendment.” Lewis v. City of Chicago, 914 F.3d 472, 479 (7th Cir. 2019) (citing

Manuel II, 903 F.3d at 669).

To the extent that the Plaintiff is attempting to bring a due process claim based on his

pretrial detention, “Manuel I makes clear that the Fourth Amendment, not the Due Process

Clause, governs a claim for wrongful pretrial detention.” Id. at 475. “[D]etention without

probable cause violates the Fourth Amendment ‘when it precedes, but also when it follows, the

start of legal process in a criminal case.’” Id. at 474 (quoting Manuel I, 137 S. Ct. at 918); see

Gupta v. Melloh, 19 F.4th 990, 1001–02 (7th Cir. 2021) (“[T]he Supreme Court decision in

Manuel [I], makes clear that a plaintiff can bring a Fourth Amendment claim for unlawful

detention either before or after the start of the legal proceedings.” (citing Manuel I, 137 S. Ct. at

918–19)). Thus, a claim of falsified police reports leading to pretrial detention does not give rise

to a separate constitutional claim under the due process clause. See Lewis, 914 F.3d at 478, 479–

80 (noting also the distinction between a claim for wrongful pretrial detention and a claim of

wrongful conviction based on fabricated evidence, with the latter always violating the

defendant’s right to due process);1 Patrick v. City of Chicago, 974 F.3d 824, 835 (7th Cir. 2020)

(“A claim for . . . pretrial detention based on fabricated evidence sounds in the Fourth

Amendment right to be free from seizure without probable cause.”).

In this case, the Plaintiff alleges that the Defendants’ wrongful conduct resulted in his

detention and his prosecution. See Compl. ¶¶ 33 (Officer Mele), 48 (Officer Daniels). There is no

constitutional right not to be prosecuted without probable cause. Young, 987 F.3d at 646. And

there are no factual allegations regarding a violation of his Fourteenth Amendment due process

right to a fair trial. See, e.g., Coleman v. City of Peoria, 925 F.3d 336, 344 (7th Cir. 2019)

(“Using false evidence to convict violates a defendant’s right to a fair trial guaranteed by the

Fourteenth Amendment’s Due Process Clause.” (citing Mooney v. Holohan, 294 U.S. 103, 112

(1935))). Thus, the Plaintiff has alleged no facts to support a § 1983 due process claim under the

1 In Lewis, the Seventh Circuit overruled Hurt v. Wise, 880 F.3d 831 (7th Cir. 2018), which had held that

a Fourteenth Amendment due process claim for unlawful pretrial detention—based “on the malicious-

prosecution/due-process theory embedded” in the circuit case law—survived Manuel I. See Lewis, 914

F.3d at 478–79 (citing Julian, 732 F.3d 842; Newsome, 256 F.3d 747).

Fourteenth Amendment. Accordingly, even though the Complaint uses the label “malicious

prosecution,” the Court considers the claims to be Fourth Amendment unlawful pretrial detention

claims. See, e.g., Lewis, 914 F.3d at 478–80; Camm v. Faith, 937 F.3d 1096, 1100 (7th Cir.

2019) (finding, in a case alleging that Indiana state troopers willfully or recklessly made false

statements in three probable cause affidavits that led to the plaintiff’s arrest and custody while he

awaited trial and retrial, that “‘malicious prosecution’ is the wrong label” and that it is “a Fourth

Amendment claim for wrongful arrest and detention”).

“The Fourth Amendment prohibits unreasonable searches and seizures.” Young, 987 F.3d

at 644. Under the Fourth Amendment, “a pretrial detention is a ‘seizure’—both before formal

legal process and after—and is justified only on probable cause.” Lewis, 914 F.3d at 477 (citing

Manuel I, 137 S. Ct. at 918). “[P]robable cause is a common-sense inquiry requiring only a

probability of criminal activity; it exists whenever an officer or a court has enough information

to warrant a prudent person to believe criminal conduct has occurred.” Young, 987 F.3d at 644

(quoting Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010) (citing Illinois v. Gates, 462 U.S.

213, 244 n.13 (1983))). “This ‘is not a high bar.’” Id. (quoting District of Columbia v. Wesby,

138 S. Ct. 577, 586 (2018)). Probable cause “is ‘assessed objectively’ based on ‘the conclusions

that the arresting officer reasonably might have drawn from the information known to him.’” Id.

(citations omitted). Moreover, “falsifying the factual basis for a judicial probable-cause

determination violates the Fourth Amendment.” Gupta, 19 F.4th at 1002 (citing Lewis, 914 F.3d

at 477 (citing Franks v. Delaware, 438 U.S. 154, (1978))); see also Taylor v. Hughes, 26 F.4th

419, 426–27 (7th Cir. 2022). This includes intentionally or recklessly withholding material

information from a probable cause affidavit. Wade v. Ramos, 26 F.4th 440, 446 (7th Cir. 2022)

(quoting Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir. 2019)).

The Court considers whether the Plaintiff has stated a Fourth Amendment claim of

wrongful detention claim based on each of the two incidents alleged in the Complaint.

1. Officer Mele—the December 25, 2016 Christmas Day Email

The Defendants argue that there was probable cause for the December 25, 2016 invasion

of privacy charge initiated by Officer Mele. The Protective Order prohibited the Plaintiff from

engaging in any type of harassment, annoyance, and communication with Salatas, the Plaintiff’s

ex-wife, except “[a]ny communication or contact necessary for the exercise of [the Plaintiff’s]

parenting time and any communication involving the parties’ minor child.” Compl. Ex. 1, at 2.

On December 25, 2016, at 12:10 p.m., Salatas arrived at the SPD to file a report

concerning an allegedly annoying email she received from the Plaintiff, and she provided a copy

of the email to the SPD. Within the two-paragraph email regarding the failed exchange of

custody of their minor child earlier that day, the text of which is set out in full in the Background

above, the Plaintiff wrote: “One minute you want an order of protection, the next minute you

want to reconcile ‘our relationship’ and get back in bed so you can try and get pregnant again.

Your conflicting mood swings/changes in behavior are concerning to say the least, and I do not

feel comfortable being around you.” Compl. Ex. 3. These two sentences were the basis of the

charges of invasion of privacy. See Compl. Ex. 2; Def. Ex. A–C (Mele Probable Cause Aff.;

Information; Order of Probable Cause), ECF Nos. 14-1 through 14-3. Probable cause is

established from these undisputed facts alleged in the Complaint and set forth in the email, which

speaks for itself. The Plaintiff does not dispute that he sent the email or that the email contains

those sentences. Although the Plaintiff argues that the email addresses parenting time, he does

not argue that these sentences are related to that permissible topic of communication. A

commonsense, objective, and reasonable reading of those sentences is that they are harassing and

annoying and do not relate to the exercise of the Plaintiff’s parenting time.

Accordingly, the Court grants the motion to dismiss the claim in Count I against Officer

Mele.2 In addition, the Court grants the motion to dismiss Count I as to the Town of Schererville

because there can be no Monell liability in the absence of an underlying constitutional violation.

See Word v. City of Chicago, 946 F.3d 391, 395 (7th Cir. 2020) (citing King v. E. St. Louis Sch.

Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007)).

2. Officer Daniels—the Plaintiff’s Presence at Benco Court on September 22, 2015

The Defendants argue that there was probable cause for the invasion of privacy charge

initiated by Officer Daniels arising out of the events of September 22, 2015. The Defendants

note that the Protective Order prohibited the Plaintiff from going to Salatas’ residence, including

the 504 Benco Court address. See Compl. Ex. 1, at 2–3. And, on September 22, 2015, the

Plaintiff went to the 504 Benco Court address, accompanied by his mother, to retrieve his mail.

Officer Daniels states in the Arrest Narrative that he informed SPD dispatch to have the Plaintiff

wait in the SPD lobby while he went to the location to try to obtain the mail and that dispatch

advised they informed the Plaintiff of Officer Daniels’ actions. Compl. Ex. 4, at 2.

In contrast, the Plaintiff alleges that, knowing the Protective Order prohibited him from

going to the 504 Benco Court address, he went to the SPD to find out whether he was permitted

to pick up his mail. He alleges that he was told by the SPD that he could go to the 504 Benco

Court address to pick up his mail if an officer was present and that an officer was being

dispatched to the address. The Plaintiff further alleges that Officer Daniels knew that the Plaintiff

had been told this information but failed to include it when he completed the probable cause

2 Because the Court finds that the Plaintiff has not established a constitutional violation, the Court need

not consider the remainder of Officer Mele’s argument for qualified immunity.

affidavit. Thus, the Plaintiff alleges that Officer Daniels lacked probable cause to initiate the

charges that led to his arrest and detention because Officer Daniels knew that the Plaintiff had

been told he could appear at the 504 Benco Court to retrieve his mail. If it proves to be true that

Officer Daniels made material omissions in the probable cause affidavit, the Plaintiff’s

“detention was unreasonable in violation of the Fourth Amendment.” Lewis, 914 F.3d at 477.

Officer Daniels’ knowledge is a question of fact not properly resolved on a motion to dismiss.

The Defendants note that the Protective Order provides that the Plaintiff “is forbidden to

enter or stay at the petitioner’s residence . . . even if invited to do so by the petitioner or any other

person. In no event is the order of protection voided.” Compl. Ex. 1 at 4 (emphasis added).

However, on the instant motion, the Defendants offer no textual or legal support that the Plaintiff

would be in violation of the Protective Order if accompanied to the address by a police officer

with the express permission of the police.

The Defendants also argue that the state court order of probable cause is prima facie

evidence of probable cause. “When an arrest is judicially authorized . . . ‘we presume the validity

of [the] warrant and the information offered to support it.’” Camm, 937 F.3d at 1105 (quoting

Whitlock, 596 F.3d at 410). However, “the presumption may give way on a showing that the

officer who sought the warrant knowingly or intentionally or with a reckless disregard for the

truth[] made false statements to the judicial officer and that the false statements were necessary

to the judicial officer’s determination.” Id. (quoting Whitlock, 596 F.3d at 410)). Here, because

the judicial determination of probable cause was based Officer Daniels’ alleged material

omissions in the probable cause affidavit, the presumption of validity gives way based on the

allegations at this stage of the case.

Officer Daniels asserts that he is entitled to qualified immunity based on his belief that

probable cause existed and because he relied on the advice of counsel. “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.” Lewis, 914 F.3d at 477 (quoting Kisela

v. Hughes, 138 S. Ct. 1148, 1151 (2018)). A court conducts a two-part inquiry when qualified

immunity is invoked, determining “(1) whether facts alleged or shown by a plaintiff make out a

violation of a constitutional right, and (2) if so, whether that right was clearly established at the

time of the defendant’s alleged misconduct.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 232

(2009)). On a similar claim of wrongful pretrial detention based on falsified evidence, the

Seventh Circuit recognized that “[i]t has been clear since at least Franks v. Delaware . . . , that

falsifying the factual basis for a judicial probable-cause determination violates the Fourth

Amendment.” Id. Again, the Plaintiff alleges that Officer Daniels knew that the Plaintiff had

been told by the SPD that it was okay for him to go to 504 Benco Court with the officer who had

been dispatched to that location but then omitted that fact from his probable cause affidavit.

Based on the facts alleged at this stage of the litigation, “no reasonable officer could have

thought this conduct was constitutionally permissible.” Id.

In certain instances where the law is clearly established, an officer’s reliance on the

advice of counsel may entitle the officer to qualified immunity as an exception to the lack of

immunity based on “extraordinary circumstances.” Davis v. Zirkelbach, 149 F.3d 614, 620 (7th

Cir. 1998) (citing V-1 Oil Co. v. Wyoming, 902 F.2d 1482 (10th Cir. 1990)). Relevant factors

informing such a determination “include how unequivocal, and specifically tailored to the

particular facts giving rise to the controversy, the advice was, whether complete information had

been provided to the advising attorney(s), the prominence and competence of the attorney(s), and

how soon after the advice was received the disputed action was taken.” Id. (quoting V-1 Oil Co.,

902 F.2d at 1488–89). Based on the Plaintiff’s allegations, Officer Daniels’ reliance on the

prosecutor’s direction to file charges is insufficient because the prosecutor’s advice was based on

incomplete information, namely Officer Daniels’ alleged omission regarding the permission

granted the Plaintiff by the SPD to go to the 504 Benco Court address. Thus, Officer Daniels is

not entitled to qualified immunity based on the reliance of counsel.

Accordingly, the Plaintiff has pleaded a plausible Fourth Amendment claim against

Officer Daniels for unlawful pretrial detention, and the Court denies the motion as to this claim

in Count II. However, the Plaintiff has failed to state a claim of Monell liability against the Town

of Schererville in Count II. There is no respondeat superior liability under § 1983, and a

government entity, such as a town, is only liable for damages under § 1983 “when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury.” Calhoun v. Ramsey, 408 F.3d

375, 379 (7th Cir. 2005) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). To

state a claim against a municipality under § 1983, a plaintiff must allege either that (1) the

municipality had an express policy that, when enforced, causes a constitutional deprivation; (2)

the municipality had a widespread practice that is so permanent and well settled it constitutes a

custom or usage with the force of law; or (3) a person with final policymaking authority caused

the plaintiff’s constitutional injury. Id. (quoting McTigue v. City of Chicago, 60 F.3d 381, 382

(7th Cir. 1995)). The Plaintiff is proceeding under the second option, alleging that the Town of

Schererville’s failure to sufficiently train Officer Daniels and to develop sufficient policies,

procedures, and practices constitutes a widespread policy of custom.

The Defendants argue that the Plaintiff fails to allege facts to support a widespread

policy, practice, or custom and that the Plaintiff has offered only boilerplate recitations of the

elements of a Monell claim. As set forth above, the only facts alleged in the Complaint that

support a constitutional violation of this nature are those against Officer Daniels. One instance

alone, without more, is not enough for municipal liability under Monell. See Gill v. City of

Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (explaining that “[t]he specific actions of the

detectives in Gill’s case alone, without more, cannot sustain a Monell claim based on the theory

of a de facto policy”). Accordingly, the Court grants the motion to dismiss Count II as to the

Town of Schererville.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the

Defendants’ Motion to Dismiss [ECF No. 13], dismissing Count I brought against Defendants

Officer Mele and the Town of Schererville and dismissing Count II as to the Town of

Schererville. Accordingly, the Court DISMISSES the Complaint as to Defendants Officer Mele

and the Town of Schererville. The case remains pending on Count II against Officer Daniels.

SO ORDERED on March 21, 2022.

s/ Theresa L. Springmann

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT