Wilson v. Hutter

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHRISTOPHER WILSON, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:23-cv-00184-SLC

)

JOSEPH HUTTER, Allen County Building )

Commissioner, sued in the individual and )

official capacity, et al., )

)

Defendants. )

OPINION AND ORDER

Pro se Plaintiff Christopher Wilson, an electrician, filed this action against the Allen

County Board of Commissioners (“Board of Commissioners”), Allen County Building

Commissioner Joseph Hutter (“Hutter” or “Building Commissioner”), Allen County Building

Department (“ACBD”) Chairman of the Board of Directors Jon Brelje, and retired Chief

Electrical Inspector James Krauhs, asserting that Defendants violated Wilson’s constitutional

rights when the ACBD revoked his Master Electrician designation and the Electrical Contractors

license of his business, AEY Electrical Service, LLC (“AEY”), and placed a condition on and

denied AEY certain permits. (ECF 7).1

On September 18, 2023, Wilson filed a motion for partial summary judgment (Wilson’s

“summary judgment motion”), together with a supporting brief, seeking judgment as a matter of

1 The parties consented to the exercise of jurisdiction by the Magistrate Judge pursuant to 28 U.S.C. §

636(c). (ECF 15, 17).

Wilson also sued Dennis Brockhouse, but the parties subsequently stipulated to dismiss this Defendant and

the slander claim advanced against him in Count 6 of the amended complaint. (ECF 79, 82). And while Wilson sued

ACBD initially, ACBD was dismissed at the outset because it “is an arm of the County and not a suable entity under

42 U.S.C. § 1983.” (ECF 8 at 2).

law in his favor on Counts 1, 3, 4, and 5 of his seven-count amended complaint. (ECF 25, 26).2

Defendants moved to strike the motion in its entirety on October 16, 2023. (ECF 38). The Court

stayed briefing on Wilson’s summary judgment motion while the parties briefed the motion to

strike. (ECF 39). Wilson filed a response to the motion to strike on October 19, 2023, and

Defendants timely replied, after which the Court lifted the stay on the briefing of Wilson’s

summary judgment motion. (ECF 40, 45, 50).

On December 15, 2023, Defendants filed a response brief to Wilson’s summary judgment

motion, together with their own cross-motion for summary judgment on Counts 1, 3, 4, and 5

(Defendants’ “summary judgment motion”), a statement of material facts, supporting evidence,

and notice of summary judgment motion. (ECF 59 to ECF 63; ECF 63-1 to ECF 63-13). On

January 2, 2024, Wilson filed a reply brief to his summary judgment motion, a response to

Defendants’ summary judgment motion, two supporting affidavits, and various exhibits. (ECF

66 to ECF 68; ECF 68-1 to 68-2). On January 30, 2024, Defendants filed a motion to strike

Wilson’s reply brief to his summary judgment motion, his response brief to their summary

judgment motion, portions of one affidavit, and the other affidavit and exhibits in their entirety.

(ECF 75). Wilson filed a response to the motion to strike on February 5, 2024. (ECF 78).

Defendants did not file a reply brief to their summary judgment motion or the motion to strike.

On February 26, 2024, Wilson filed a motion requesting a hearing to present oral argument on

the pending motions. (ECF 86). The motions are all ripe for ruling. See N.D. Ind. L.R. 7-1(d),

56-1.

2 Wilson titles these counts in his amended complaint as follows: Count 1 - Restriction of License; Count 3

- Revocation of Contractors License; Count 4 - Revocation of Master Electrician License; and Count 5 - Failure to

Intervene. (ECF 7). Wilson does not move for summary judgment on Count 2 - Conspiracy Against Rights or Count

7 - Interference. (Id.). To reiterate, Count 6 - Slander has already been dismissed. (ECF 79, 82).

2

For the following reasons, Defendants’ first motion to strike will be denied, their second

motion to strike will be granted in part and denied in part, Wilson’s summary judgment motion

will be DENIED, and Defendants’ summary judgment motion will be GRANTED IN PART and

DENIED IN PART. Because the Court finds that oral argument is unnecessary for purposes of

ruling on these motions, Wilson’s motion for oral argument will also be DENIED.

I. DEFENDANTS’ FIRST MOTION TO STRIKE

In their motion to strike filed on October 16, 2023 (ECF 38), Defendants seek to strike

Wilson’s summary judgment motion (ECF 25) in its entirety because it does not comply with

this Court’s Local Rule 56-1(a). That rule requires a party moving for summary judgment to

separately file: “(1) a motion; (2) a supporting brief; and (3) a Statement of Material Facts with

numbered paragraphs for each material fact the moving party contends is undisputed which

includes: (A) a short statement of each fact; and (B) a citation to evidence supporting each fact . .

. .” N.D. Ind. L.R. 56-1(a).

Defendants observe that Wilson’s Statement of Material Facts, which is embedded in his

summary judgment motion (ECF 25), does not meet the format requirements of Local Rule 56-

1(a). (ECF 38 at 2). Defendants further assert that Wilson’s motion and supporting brief contain

statements of issues, argument, legal conclusions, and unverified facts, rather than actual

supported facts. (Id. at 2-3). Defendants also contend that Wilson cites exhibits filed with his

complaint without any verification or authentication. (Id. at 3). Finally, Defendants argue that

Wilson seems to base his summary judgment motion on a criminal statute, 18 U.S.C. § 242,

which does not give rise to a private right of action and is inapplicable to this case. (Id.).

Wilson responds that Defendants’ arguments “are not issues of substance but instead

procedural details” and asks that the Court afford him “some leeway in how the [m]otion was

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formatted” given his pro se status. (ECF 40 at 2). In that regard, “the Supreme Court has made

clear that even pro se litigants must follow rules of civil procedure.” Cady v. Sheahan, 467 F.3d

1057, 1061 (7th Cir. 2006) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). Having

said that, “the Court prefers to rule on the merits of matters before it rather than on

technicalities.” Bonzani v. Goshen Health Sys. Inc., No. 3:19-CV-586-DRL-MGG, 2022 WL

18530866, at *1 (N.D. Ind. Dec. 19, 2022) (citing Foman v. Davis, 371 U.S. 178, 181 (1962)).

Additionally, Local Rule 1-1(b) permits the Court to “suspend or modify any rule in a particular

case in the interest of justice.” N.D. Ind. L.R. 1-1(b).

“Motions to [s]trike are disfavored.” Nuzzi v. St. George Cmty. Consol. Sch. Dist. No.

258, 688 F. Supp. 2d 815, 830 (C.D. Ill. Feb. 23, 2010) (citation omitted); see also Heller Fin.,

Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). The court “generally relies on

its ability to consider only arguments and facts which are properly presented and rarely grants

motions to strike.” Nuzzi, 688 F. Supp. 2d at 830 (citations omitted). “This court . . . is confident

that it can rely only on admissible evidence and proper and accurate statements of the facts in

ruling on a [m]otion for [s]ummary [j]udgment.” Id. (citation omitted); see Compton v. DuPage

Cnty. Health Dep’t, 426 F. Supp. 3d 539, 545 (N.D. Ill. Dec. 12, 2019) (“[M]otions to strike at

the summary-judgment stage are particularly unnecessary, because the court must always review

statements of material facts and eliminate from consideration any argument, conclusions, and

assertions that are unsupported by the record.” (citation and internal quotation marks omitted)).

Given Wilson’s pro se status, the Court will decline to strike Wilson’s summary

judgment motion on the basis that it does not fully comply with Local Rule 56-1’s format

requirements. As to Defendants’ other arguments, the Court is confident that it can discern and

reject from consideration any argument, conclusion, and assertion that lacks support of evidence

4

in the record. See, e.g., Rivera v. Guevara, 319 F. Supp. 3d 1004, 1018 (N.D. Ill. May 11, 2018)

(denying defendant’s motion to strike and informing that the court “disregard[ed] the portions of

the parties’ Local Rule 56.1 submissions that make legal arguments and assert legal conclusions,

which are not factual statements at all” (collecting cases)).3 Accordingly, Defendants’ first

motion to strike Wilson’s summary judgment motion (ECF 38) will be DENIED.

II. DEFENDANTS’ SECOND MOTION TO STRIKE

In their second motion to strike filed on January 30, 2024 (ECF 75), Defendants seek to

strike Wilson’s reply brief to his summary judgment motion, portions of one affidavit, his

response brief to their summary judgment motion, and his other affidavit and exhibits in their

entirety. The Court will address each of these documents in turn.

A. Wilson’s Reply Brief to his Summary Judgment Motion

Defendants asks that the Court strike Wilson’s reply brief (ECF 66) to his summary

judgment motion due to Wilson submitting additional facts or evidence with his reply brief, in

contravention of Local Rule 56-1(c). (ECF 75 at 3). Defendants also contend that the reply brief

fails to properly cite such facts. (Id. at 3-4). For the same reasons stated supra with respect to

Defendants’ first motion to strike, the Court will DENY Defendants’ request to strike Wilson’s

reply brief in its entirety on the basis of technical deficits. See Bonzani, 2022 WL 18530866, at

*1. To reiterate, the Court is capable of discerning and rejecting from consideration any

argument, conclusion, and assertion that lacks support of evidence in the record. See Rivera, 319

F. Supp. 3d at 1018.

3 Nor will the Court strike Wilson’s summary judgment motion on the basis that it cites 18 U.S.C. § 242.

The Court will address this statute infra when taking up the parties’ summary judgment motions.

5

B. The First Affidavit

Defendants next seek to strike the Sworn Affidavit of Christopher Wilson (“the First

Affidavit”), which Defendants contend includes inappropriate “(a) statements of issues presented

to the Court; (b) argument; (c) legal conclusions; and/or (d) unverified facts.” (ECF 75 at 4

(citing ECF 68)). Wilson’s reply brief contains multiple references to the First Affidavit. (See

ECF 66).

Federal Rule of Civil Procedure 56 states that affidavits filed in support of summary

judgment “must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the matters stated.”

Fed. R. Civ. P. 56(c)(4). “An affidavit not in compliance with Rule 56 can neither lend support

to, nor defeat, a summary judgment motion.” Paniaguas v. Aldon Cos., No. 2:04-CV-468-PRC,

2006 WL 2568210, at *4 (N.D. Ind. Sept. 5, 2006) (citing Zayre Corp. v. S.M. & R. Co., 882

F.2d 1145, 1148-49 (7th Cir. 1989); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th

Cir. 1989)).

“[W]hen considering a motion to strike portions of an affidavit in support of a motion for

summary judgment, courts will only strike and disregard the improper portions of the affidavit

and allow all appropriate recitations of fact to stand.” Id. (citations omitted). For example, the

following statements are not properly included in an affidavit and should be disregarded: (1)

conclusory allegations lacking supporting evidence, see DeLoach v. Infinity Broad., 164 F.3d

398, 402 (7th Cir. 1999); (2) legal argument, see Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.

1985); (3) inferences or opinions not “grounded in observation or other first-hand personal

experience,” Visser v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991); (4) mere

speculation or conjecture, see Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999); and (5)

6

statements or conclusions that “contradict prior deposition or other sworn testimony,” without

explaining the contradiction or attempting to resolve the disparity, Buckner v. Sam’s Club, Inc.,

75 F.3d 290, 292 (7th Cir. 1996) (collecting cases); see James v. Hale, 959 F.3d 307, 316 (7th

Cir. 2020) (“[T]he sham-affidavit rule prohibits a party from submitting an affidavit that

contradicts the party’s prior deposition or other sworn testimony.” (citation omitted)).

Paragraph 6. Defendants first seek to strike paragraph 6 of the First Affidavit on the basis

that it “does not contain facts, but Wilson’s continued argument about what has occurred.” (ECF

75 at 4). Paragraph 6 seemingly refers to a “revocation letter” written by Hutter to Wilson on

January 20, 2023. (ECF 68 ¶ 6; ECF 68-2 at 5). Wilson asserts that Hutter “changed his reason

for emergency multiple times” after writing the letter, which “is not fair or legal,” and “did not

like [Wilson] informing him of seeking legal recourse when he denied [Wilson’s] ability to

obtain permits.” (ECF 68 ¶ 6). The Court agrees this paragraph constitutes improper argument,

conclusory allegations, and speculation. See DeLoach, 164 F.3d at 402; Pfeil, 757 F.2d at 862;

Stagman, 176 F.3d at 995. The letter speaks for itself. Therefore, the motion to strike will be

GRANTED as to paragraph 6.

Paragraph 8. Defendants next seek to strike paragraph 8, asserting that it “is based almost

entirely on the hearsay statements of third parties and is therefore inadmissible.” (ECF 75 at 4).

This paragraph presumably refers to emails sent by Tri State Power, Water, and Air (“Tri State”)

on January 18 and 25, 2023. (ECF 68-2 at 41-42). In the paragraph, Wilson describes the terms

of a purported contract he entered into with Tri State. (ECF 68 ¶ 8). This paragraph appears to be

based on Wilson’s personal knowledge, and thus, the motion to strike will be DENIED as to

paragraph 8. See Mitchel v. Buncich, No. 2:11-CV-91-PRC, 2013 WL 275592, at *10 (N.D. Ind.

Jan. 24, 2013) (denying motion to strike a portion of the affidavit that was “within [the

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witness’s] personal knowledge based on first-hand observation”).

Paragraph 9. Defendants seek to strike paragraph 9, asserting that it “contains both

hearsay and argument about what the hearsay means to Wilson.” (ECF 75 at 4). In this

paragraph, Wilson describes the events that took place at a hearing on his “contractors license”

on April 21, 2022, based on his personal knowledge. (ECF 68 ¶ 9). However, the third and fourth

sentences of this paragraph where Wilson summarizes Hutter’s statements made at the hearing

will be STRICKEN as inadmissable hearsay—that is, “an out-of-court statement being offered

for the truth of the matter asserted.” Armstrong v. Browns Living, LLC, No. 22-cv-329-wmc,

2023 WL 6037653, at *4 (W.D. Wis. Sept. 15, 2023). Additionally, the final sentence pertaining

to the “unexpected retirement of James Krauhs” will be STRICKEN in its entirety as

unsupported and speculative. Pfeil, 757 F.2d at 862; Stagman, 176 F.3d at 995. Therefore the

motion to strike will be GRANTED IN PART and DENIED IN PART as to paragraph 9.

Paragraph 10. Defendants seek to strike paragraph 10 on the basis that it “contains

irrelevant materials to this litigation.” (ECF 75 at 4). In this paragraph Wilson sets forth

information that he gained from public access about the permits that Hutter purportedly obtained

to build Hutter’s own residence in 2019. (ECF 68 ¶ 10). Wilson then speculates that Hutter did

not meet the criteria associated with the permits and describes various failed inspections. (Id.).

This paragraph consists of legal argument, inferences or opinions not grounded in observation or

first-hand experience, and conjecture. Pfeil, 757 F.2d at 862; Visser, 924 F.2d at 659; Stagman,

176 F.3d at 995. Moreover, this paragraph seems merely an improper attempt to discredit Hutter

generally. Therefore, the motion to strike will be GRANTED as to paragraph 10.

Paragraph 11. Defendants seek to strike paragraph 11 as “purely hearsay and the

statements of third parties allegedly made to Wilson.” (ECF 75 at 4). In this paragraph, Wilson

8

describes various projects that he was, or would have been, awarded. (ECF 68 ¶ 11). As

Defendants assert, the paragraph does contain hearsay—specifically, the statements about what

Wilson “was told by” other individuals. (Id.). But several other statements in the paragraph

appear to be based on Wilson’s personal knowledge. Therefore, the motion to strike will be

GRANTED IN PART and DENIED IN PART such that after striking the hearsay, the paragraph

will read in its entirety as follows:

The plaintiff was awarded the Flats at Walnut Ridge project by CRG, a

developer out of Indianapolis, until the project was delayed due to unforeseen

trouble with an excavation contractor. This had an electrical cost of $4.7M. I was

the front runner for a project called the Reserve on Park which had an electrical

cost of $2.8M. Jacob Brown asked for my license number. After providing my

license number, communication with Grand Contracting became almost

nonexistent.

(ECF 68 ¶ 11).

Paragraph 12. Defendants seek to strike paragraph 12 asserting it “contains argument,

hearsay and conclusory statements.” (ECF 75 at 4). In this paragraph, Wilson summarizes

Hutter’s work experience and asserts that Hutter is “unqualified and lacked the experience to be

put in the position of Building Commissioner.” (ECF 68 ¶ 12). He further asserts that Hutter has

“bent the rules to his benefit since being hired by the ACBD to inspect areas . . . . [and] has not

been held accountable for his actions . . . .” (Id.). As such paragraph 12 is comprised of

conclusory allegations lacking supporting evidence, legal argument, opinions not grounded in

observation, and conjecture. DeLoach, 164 F.3d at 402; Pfeil, 757 F.2d at 862; Visser, 924 F.2d

at 659; Stagman, 176 F.3d at 995. Accordingly, the motion to strike will be GRANTED as to

paragraph 12.

9

C. Wilson’s Response Brief to Defendants’ Summary Judgment Motion

Next, Defendants ask that the Court strike Wilson’s response brief (ECF 67) to their

summary judgment motion because, like his reply brief, the response brief does not comply with

the requirements of Local Rule 56-1 and contains “unverified facts or hearsay.” (ECF 75 at 4).

For the same reasons stated supra, the Court will DENY Defendants’ motion to strike Wilson’s

response brief on the basis of technical deficits. See Bonzani, 2022 WL 18530866, at *1. The

Court is capable of discerning and rejecting from consideration any argument, conclusion, or

assertion that lacks support of evidence in the record. See Rivera, 319 F. Supp. 3d at 1018.

D. The Second Affidavit

Defendants also seek to strike the Sworn Affidavit #2 of Christopher Wilson (“the

Second Affidavit”), which Defendants contend includes “inappropriate: (a) statements of issues

presented to the Court; (b) argument; (c) legal conclusions; and/or (d) unverified facts.” (ECF 75

at 5 (citing ECF 68-1 ¶ 6)). Wilson’s response brief contains multiple references to the Second

Affidavit. (See ECF 67).

Paragraph 6. Defendants contend that paragraph 6 of the Second Affidavit “is purely

argument from Wilson, and is not appropriate for a statement of fact.” (ECF 75 at 5). Indeed, in

this paragraph Wilson criticizes the Building Commissioner’s “verbiage” and contends there was

“no reason to place a condition on the contractor’s license” and that Hutter violated the law in

doing so. (ECF 68-1 ¶ 6). Given that the entirety of this paragraph constitutes improper legal

argument, the motion to strike will be GRANTED as to paragraph 6. See Pfeil, 757 F.2d at 862.

Paragraphs 8, 9, and 13-19. Defendants argue that paragraphs 8, 9, and 13 through 19

should be stricken for failure to comply with the relevant procedural rules. (ECF 75 at 5). In

these paragraphs, Wilson cursorily recites that corresponding comments in his response brief to

10

Defendants’ summary judgment motion “are true and accurate to the best of [his] knowledge.”

(See ECF 68-1 ¶¶ 8, 9, 13-19). While the Court is affording Wilson some leniency due to his pro

se status, his attempt to incorporate by reference legal argument in his response brief as facts in

his affidavit goes too far. “[I]t is . . . well established that pro se litigants are not excused from

compliance with procedural rules.” Covington v. Chasteen, No. 22-cv-5083, 2024 WL 1404379,

at *4 (N.D. Ill. Feb. 20, 2024) (quoting Pearle Vision, Inc. v. Romm, 541 F3d 751, 758 (7th Cir.

2008)). Therefore, the motion to strike paragraphs 8, 9, and 13 through 19 will be GRANTED.

Paragraph 10. Defendants also seek to strike paragraph 10 on the basis that it “contain[s]

irrelevant and argumentative language.” (ECF 75 at 5). In this paragraph, Wilson refers to an

inspection report for a property and then offers some context about the work his company

completed there. (ECF 68-1 ¶ 10; ECF 68-2 at 47). While the last four sentences of the

paragraph contain argument and conjecture, the remainder of the paragraph appears to be based

on Wilson’s personal knowledge. Accordingly, the motion to strike paragraph 10 will be

GRANTED IN PART and DENIED IN PART, in that the last four sentences of the paragraph

are STRICKEN but the preceding sentences will STAND.

Paragraph 11. Defendants contend paragraph 11 also “contain[s] irrelevant and

argumentative language.” (ECF 75 at 5). In this paragraph, Wilson simply states that his Exhibit

11 “is a true and unaltered copy of an email sent by Attorney Michael Hoffman to the plaintiff . .

. .” (ECF 68-1 ¶ 11). Defendants contend this paragraph should be stricken because the email,

which discusses scheduling, “is not an admission of fact or law.” (ECF 75 at 5). The motion to

strike will be DENIED as to paragraph 11, as the email speaks for itself.

Paragraph 20. Defendants assert that paragraph 20 should be stricken because it

“continues to contain Wilson’s argument,” which “should be found only in his Response or

11

Reply, not in what he attempts to state are facts from a sworn statement.” (Id. at 5-6). In this

paragraph, Wilson revisits his argument attacking Hutter’s credentials that he advanced in

paragraph 9 of the First Affidavit. (Compare ECF 68-1 ¶ 20, with ECF 68 ¶ 9). For the same

reasons stated supra as to paragraph 9 in the First Affidavit, paragraph 20 of the Second

Affidavit will also be STRICKEN, with one exception: The Court will let the fifth sentence in

paragraph 20 stand as based on Wilson’s personal knowledge: “At a hearing on April 21, 2022, I

questioned [Hutter] about how he was able to obtain those licenses in front of the Board of

Directors.” (ECF 68-1 ¶ 20). Therefore, the motion to strike will be GRANTED as to all but the

fifth sentence.

In sum, Defendants’ first motion to strike will be GRANTED IN PART and DENIED IN

PART.

E. Exhibits in ECF 68-2

When filing his reply brief, response brief, and affidavits, Wilson also submitted fifty-

seven pages of materials or exhibits in support of his position. (ECF 68-2). Defendants seek to

strike a portion of those materials, asserting they “contain random, irrelevant information that is

also hearsay.” (ECF 75 at 6).4 Specifically, Defendants object to the following materials: an

email from Wilson to Nelson Peters, an Allen County Commissioner; an email from Emily

Almodovar, an Allen County employee, to Wilson; an email from Daniel Braun to Wilson; an

email from Robert Langrel to Wilson; a newspaper article; and website information pertaining to

Hutter. (ECF 75 at 6 (citing ECF 68-2 at 8-11, 39-46, 50-56)).

The motion to strike these materials will be DENIED. “Evidence presented in opposition

4 Defendants acknowledge that the portion of the materials in Docket Entry 68-2 consisting of discovery

responses would likely be admissible. (ECF 75 at 6; see ECF 68-2 at 21-38).

12

to a motion for summary judgment must be admissible in content, though it need not be in an

admissible form.” Citizens for Cmty. Action v. City of Chi., 455 F. Supp. 2d 802, 808 (N.D. Ill.

Sept. 13, 2006) (citing Payne v. Pauley, 337 F.3d 767, 775 n.3 (7th Cir. 2003)). The Court will

not consider evidence that does not comply with Rule 56(e) or is not material to the resolution of

Wilson’s claims. Id. To reiterate, the Court is capable of discerning and rejecting from

consideration any argument, conclusion, and assertion that lacks support of evidence in the

record. See Rivera, 319 F. Supp. 3d at 1018.

For the foregoing reasons, Defendants’ second motion to strike will be GRANTED IN

PART and DENIED IN PART. The Court will now turn to the parties’ respective summary

judgment motions.

III. THE PARTIES’ SUMMARY JUDGMENT MOTIONS

Wilson moves for summary judgment on Counts 1, 3, 4, and 5 of his complaint, asserting

that these counts “are based on indisputable facts” and that summary judgment in his favor on

these counts is “warranted as a matter of law.” (ECF 25 at 1). In response, Defendants filed their

own summary judgment motion on these claims. (ECF 59).

A. Statement of Material Facts

1. Background of the ACBD and Relevant Rules and Regulations

In February 1983, the Board of Commissioners established and created the ACBD. (ECF

62 ¶ 1; ECF 63-1 at 2). The general purpose of the ACBD is to administer and enforce building,

heating, ventilating, air conditioning, electrical, plumbing, sanitation, and standards adopted

pursuant to law by Allen County, the City of Fort Wayne, and the Allen County Property

Maintenance/Minimum Housing Code. (ECF 62 ¶ 1; ECF 63-1 at 2). The Board of

Commissioners appoints the ACBD Board members. (ECF 62 ¶ 2; ECF 63-1 at 3). The ACBD

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Board prescribes the standards, rules, and procedures for the issuance of licenses to perform

work in the electrical, sanitary, plumbing, heating, ventilating and air-conditioning, commercial

and industrial (non-sanitary) piping systems, and other construction businesses. (ECF 62 ¶ 3;

ECF 63-1 at 5).

Title 6, Article 2, of the Allen County Code is the Building Code of Allen County,

Indiana (the “Building Code”). (ECF 62 ¶ 4; ECF 63-2 at 1). The purpose of the Building Code

is to provide minimum standards for the protection of life, limb, health, environment, public

safety and welfare, and for the conservation of energy in design and construction of buildings

and structures. (ECF 62 ¶ 4; ECF 63-2 at 1). The Building Code contains an administrative

appeal process. (ECF 62 ¶ 5; ECF 63-1 at 7-8). Generally speaking, a decision by an ACBD

administrative officer or inspector may be appealed to the entire ACBD Board. (ECF 62 ¶ 5;

ECF 63-1 at 8). In turn, a decision of the ACBD Board is subject to review by the Board of

Commissioners if requested within thirty days. (ECF 62 ¶ 5; ECF 63-1 at 8). Further, individuals

aggrieved by a decision of the Board of Commissioners may appeal to a court in accordance with

Indiana Code § 36-2-2-27. (ECF 62 ¶ 5; see ECF 63-1 at 8).

A permit must be obtained before beginning construction, addition, alteration, or repair

of any building or structure. (ECF 62 ¶ 6; ECF 63-2 at 4). Permits are issued by the Building

Commissioner. (ECF 62 ¶ 6; ECF 63-2 at 4). Whenever any work is done contrary to the

provisions of the Allen County Code, the Building Commissioner may order the work stopped

by notice in writing, and the persons engaged in the work shall stop until authorized by the

Building Commissioner to proceed with the work. (ECF 62 ¶ 7; ECF 63-2 at 6).

The Board of Commissioner’s Rules and Regulations dated May 7, 2003 (the “Rules and

Regulations”), provide that during a suspension or revocation hearing before the ACBD Board, a

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licensee may appear personally or by counsel and may cross-examine witnesses against him and

produce evidence on his own behalf. (ECF 62 ¶ 9; ECF 63-3 at 14). The ACBD Board may

allow any relevant evidence to be introduced, and a majority of the ACBD Board shall decide

whether a license should be suspended or revoked. (ECF 62 ¶ 9; ECF 63-3 at 14). The ACBD

Board may suspend a license for up to one year, revoke a license for a specified period of time,

or revoke a license permanently. (ECF 62 ¶ 9; ECF 63-3 at 14).

Under Chapter 3 § C of the Rules and Regulations, if the Building Commissioner

determines that “an emergency exists which requires immediate action to protect the public

health or safety,” the Building Commissioner may, without notice or hearing, issue an order

revoking the license of the licensee “for charges related to incompetence, code violations,

unethical conduct, fraud, or deceit in the performance of any function of the respective trade by

such licensee” by giving actual notice or depositing in the United States Mail a registered or

certified notice that states the license is revoked. (ECF 62 ¶ 10; ECF 63-3 at 14-15). The notice

must “outline in writing what the Building Commissioner perceives to be of such great

emergency or what actions by the licensee will or are causing the public to be harmed that the

normal notice procedure cannot [be] followed.” (ECF 63-3 at 15). A licensee shall give up his

license immediately and comply with the revocation, but upon petition and written request to the

ACBD shall be afforded a hearing as soon as possible before the ACBD Board. (ECF 62 ¶¶ 10-

11; ECF 63-3 at 15). After the hearing, the ACBD Board may continue the order in effect,

modify it, or revoke it. (ECF 62 ¶ 11; ECF 63-3 at 15).

All contractors and sub-contractors must be licensed by the ACBD to work in Allen

County. (ECF 62 ¶ 12; ECF 63-4 at 1). The ACBD issues various levels of designations to

electricians, with the highest level being Master Electrician, the second level being Journeyman

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Electrician, and the third level being Electrical Apprentice registration. (ECF 62 ¶ 13; ECF 63-4

at 1). Master Electricians are allowed to supervise the work of Journeyman Electricians and

Electrical Apprentices. (ECF 62 ¶ 14; ECF 63-4 at 2). A Master Electrician may use that

designation to obtain an Electrical Contractors license, or alternatively, a firm or corporation

seeking an Electrical Contractors license must have in its employ one full-time person who holds

a Master Electrician designation. (ECF 62 ¶ 15; ECF 63-4 at 2). Only an individual or business

with an Electrical Contractors license is authorized to secure a permit for electrical contracting.

(ECF 62 ¶ 16; ECF 63-4 at 2).

2. ACBD Takes Action Against the Licenses Held by Wilson and AEY

Defendant Joseph Hutter has been employed by ACBD since November 2019. (ECF 62 ¶

17; ECF 63-4 at 1). Hutter has served as ACBD’s Building Commissioner since October 2022.

(ECF 62 ¶ 17; ECF 63-4 at 1).

ACBD issued a Master Electrician designation to Wilson individually (the “Master

Electrician designation”), which he held in January 2023. (ECF 62 ¶ 18; ECF 63-4 at 2). ACBD

issued an Electrical Contractors license (No. BD-35671) (the “Electrical Contractors license”) to

AEY, an Indiana limited liability company managed by Wilson. (ECF 62 ¶ 18; ECF 63-4 at 2,

49). Wilson used his Master Electrician designation to obtain the Electrical Contractors license

for AEY. (ECF 62 ¶ 18; ECF 63-4 at 2).

On January 3, 2023, Hutter placed a condition on AEY’s Electrical Contractors license

that required AEY to obtain Hutter’s approval on future permit applications. (ECF 62 ¶ 19; ECF

68-2 at 3-4, 9; ECF 63-4 at 3).5 Hutter now claims in an affidavit that he did so “as a result of

5 Apparently this was not ACBD’s first rodeo with Wilson or AEY about licensure revocation. Wilson

states that his (or AEY’s) license was up for revocation previously in April 2022 “because of alleged violations of

16

several instances of AEY failing to abide by the Building Code . . . and ACBD’s Rules and

Regulations,” and because “AEY continually had Electrical Apprentices working on AEY’s job

sites without the required supervision of Journeyman Electricians or [Wilson] himself, which is a

violation of ACBD Rules and Regulations.” (ECF 62 ¶¶ 19-20; ECF 63-4 at 3).

On January 19, 2023, Hutter emailed Wilson that after consulting with the ACBD Board,

Wilson’s request for permits on two job locations would be denied. (ECF 68-1 ¶ 7; ECF 68-2 at

4, 9). Also on January 19, 2023, Michael Hoffman, ACBD’s counsel, responded to Wilson in an

email that it was Hoffman’s understanding the ACBD was “in receipt of information that has

created a situation where it has decided to revoke your license.” (ECF 68-2 at 6; see ECF 68-1 ¶

11).

On January 20, 2023, Hutter sent a letter addressed to “Christopher Wilson c/o AEY

Electrical Service LLC,” entitled “STOP WORK ORDER AND EMERGENCY REVOCATION

OF LICENSE” (the “Revocation Letter”). (ECF 62 ¶ 21; ECF 68-2 at 5, 9; ECF 63-4 at 3, 45). In

the letter, Hutter stated that the ACBD “ha[d] witnessed unsafe workmanship on more than one

occasion”—most recently at 9179 West Washington Center Road, 1725 Kentucky Avenue, and

3109 Oxford Street—and that “your Electrical Contractor license is hereby revoked in Allen

County, effective immediately . . . .” (ECF 63-4 at 45; see ECF 62 ¶ 22; ECF 63-4 at 3). The

letter further informed that “[i]mmediate revocation of licensure is necessary, due to your

continual disregard for the Rules and Regulations and the Code, as well as the public health and

safety.” (ECF 68-2 at 5; see ECF 62 ¶ 22; ECF 63-4 at 3). The letter stated that Wilson could

petition the ACBD in writing for a hearing before the ACBD Board about his licensure

the Rules and Regulations and incompetence.” (ECF 68 ¶ 9).

17

revocation. (ECF 68-2 at 5; see ECF 62 ¶ 22; ECF 63-4 at 3). On January 23, 2023, Hutter

placed a second condition on AEY’s license, indicating that the license was “on hold.” (ECF 68-

2 at 3).6

Hutter now adds in his affidavit that he “determined . . . an emergency existed because

numerous safety issues related to AEY’s permitted and unpermitted projects were brought to

[his] attention beginning in early 2022.” (ECF 62 ¶ 23; ECF 63-4 at 3). Hutter states that of

particular concern was “loose wiring” at a residential job site at 9179 West Washington Center

Road, which “could have caused significant property damage or risked the health and safety of

individuals in or around the residence, including that of injury or death by electrocution.” (ECF

62 ¶ 23; ECF 63-4 at 3).

3. Wilson Seeks Relief in State Court

On January 23, 2023, Wilson filed a Petition Requesting an Emergency Injunction (the

“Petition”) with the Allen County Circuit Court, asking that the court issue an injunction

preventing ACBD from “revoking the petitioner’s Contractor’s License.” (ECF 63-6 at 1; see

ECF 62 ¶ 24; ECF 68-2 at 9).7 A hearing was held on the Petition on February 9, 2023. (ECF 62

¶ 25; ECF 63-7 at 1). On February 14, 2023, the Allen County Circuit Court issued an order

denying the Petition, noting that Wilson was “currently in the administrative process” and could

6 The computer-generated evidence does not specifically differentiate whether it was AEY’s Electrical

Contractors license or Wilson’s Master Electrician designation that was placed “on hold” (ECF 68-2 at 3), but the

parties seem to agree in their briefing that it was AEY’s Electrical Contractors license. (ECF 25 at 6; ECF 63-4 at 3).

Yet, at the February 2, 2023, meeting, Brelje stated it was the Master Electrician designation that was revoked. (ECF

42 Audio of ACBD Special Board Meeting February 2, 2023 (“Audio 1”) at 05:20-06:03; see also id. at 1:48:55-

1:49:26, 1:51:10-1:51:21).

7 Defendants assert that Wilson requested an injunction to preclude ACBD “from suspending AEY’s

Electrical Contractors License” (ECF 62 ¶ 24), but that is not how Wilson phrased it in his petition. (Compare ECF

62 ¶ 4, with ECF 63-6 at 1).

18

still work outside Allen County at the time, and as such, “the public interest would be disserved

if [the court] were to contravene [ACBD’s] expertise and unilaterally reinstate [Wilson’s] license

for the foreseeable future.” (ECF 63-7 at 4-5; see ECF 62 ¶ 25). Wilson moved to reconsider the

order denying the preliminary injunction and to amend his claim, but on March 7, 2023, after

another hearing, the Allen County Circuit Court denied both motions, stating that Wilson could

request an appeal once he exhausted the administrative process. (ECF 62 ¶¶ 26-27; ECF 63-8 to

63-12).

4. The Administrative Process Before the ACBD

The ACBD Board held a special meeting on February 2, 2023, to address the license-

revocation matter, and both Hutter and Wilson attended. (ECF 62 ¶ 28; ECF 63-4 at 4, 46). At

the beginning of the meeting, Wilson asked which license had been revoked. (ECF 42 Audio 1 at

05:20-06:05). Brelje responded that it was Wilson’s Master Electrician designation. (Id. at 05:20-

06:05; see also id. at 1:48:55-1:49:26, 1:51:10-1:51:21). Wilson and ACBD representatives

presented evidence at the meeting. (ECF 62 ¶ 28; ECF 63-4 at 4, 46). After Wilson left the

meeting, the ACBD Board passed a unanimous motion to suspend Wilson’s Master Electrician

designation for a four-year period and issue him a Journeyman Electrician designation in its

stead. (ECF 42 Audio 1 at 2:26:25 to 2:27:15; see ECF 62 ¶¶ 29-30; ECF 68-2 at 7; ECF 63-4 at

4, 46).8

The next day Hutter sent Wilson a letter informing him of the ACBD Board’s decision

8 Hutter claims in his affidavit that “the ACBD Board passed a unanimous motion to uphold the Building

Commissioner’s emergency suspension of AEY’s Electrical Contractor License and to reduce [Wilson’s] Master

Electrician designation.” (ECF 63-4 at 4). But the audio meeting of the February 2, 2023, meeting reflects only that

the Board passed a unanimous motion to suspend Wilson’s Master Electrician designation and to issue him a

Journeyman Electrical license. (ECF 42 Audio 1 at 2:26:25-2:27:15).

19

“regarding the [ACBD’s] revocation of your Master Electrical License during the special hearing

held on February 2, 2023.” (ECF 63-4 at 46). The letter stated that the ACBD Board passed a

unanimous motion “to uphold the Building Commissioner’s revocation of licensure based on

Chapter 3 of the . . . Rules and Regulations, to revoke your Master Electrical License, and the

Board issued to you a Journeyman Electrical license.” (Id.). The revocation was for a “minimum

of four (4) years.” (Id.). The letter stated that the determination was based on the evidence and

testimony at the hearing, including “[n]on-compliance with [ACBD] Rules & Regulations

specifically related to code violations and engaging in unsafe practices”; “[f]ailure to comply

with requirements related to obtaining permits, as well as regarding open permits”; and

“[c]ontinued use of unsupervised Apprentices on site without a Journeyman present.” (Id.; see

ECF 62 ¶ 30; ECF 68-2 at 7).

On February 10, 2023, Wilson emailed the Board of Commissioners to request a hearing

before them. (ECF 62 ¶ 31; ECF 68-2 at 8-11; ECF 63-4 at 4). On February 16, 2023, the Board

of Commissioners sent Wilson a “Memorandum Setting Hearing,” which indicated that they

would review the requested appeal on March 1, 2023, at 8:30 am. (ECF 62 ¶ 31; ECF 63-4 at 4,

47). However, on February 24, 2023, the Board of Commissioners issued an “Order Cancelling

March 1, 2023, Hearing,” stating that it had “administratively determined” that Wilson’s appeal

of the ACBD Board’s decision “revoking Christopher Wilson’s Master Electrical License” was

not “ripe for review”; and remanding the matter to the ACBD Board “to conduct a hearing on the

license cited in the January 20, 2023, Notice of Emergency Revocation (the Electrical

Contractors License).” (ECF 63-4 at 48; ECF 62 ¶ 32; ECF 63-4 at 4-5). Six days later, on

March 7, 2023, ACBD reinstated Wilson’s Master Electrician designation. (ECF 62 ¶ 33; ECF

63-4 at 5).

20

On March 9, 2023, the ACBD Board held a meeting about Wilson’s appeal of the

revocation of AEY’s Electrical Contractors license. (ECF 62 ¶ 34; ECF 63-4 at 5, 49). When the

Board refused to answer any of Wilson’s questions about the February 2, 2024, hearing, Wilson

objected to the meeting and left without presenting any evidence. (ECF 42 Audio of ACBD

Board Meeting March 9, 2023 (“Audio 2”), at 05:20-06:03; ECF 62 ¶ 34; ECF 63-4 at 5, 49).

After hearing evidence from an ACBD employee, the ACBD Board passed a unanimous motion

to affirm the ACBD’s decision revoking AEY’s Electrical Contractors license. (ECF 62 ¶ 34;

ECF 63-4 at 5, 49; ECF 42 Audio 2 at 31:37-32:47, 43:45-43:58). The ACBD Board provided

the same reasons for revocation as in the February 3, 2023, letter. (ECF 62 ¶ 34; ECF 63-4 at 5,

49). The next day Hutter sent Wilson a letter informing him of the ACBD Board’s decision “to

uphold the [ACBD’s decision] based on Chapter 3 of the . . . Rules and Regulations, to revoke

your Electrical Contractor’s License BD-35671.” (ECF 63-4 at 49). In response, Wilson again

requested a hearing before the Board of Commissioners. (ECF 62 ¶ 35; ECF 63-4 at 5).

On March 14, 2023, Wilson used his Master Electrician designation to obtain a new

Electrical Contractors license for a second business entity called Near Me, LLC, which allowed

him to work again in Allen County. (ECF 62 ¶ 36; ECF 63-4 at 5).

On March 29, 2023, the Board of Commissioners conducted a hearing regarding ACBD’s

revocation of AEY’s Electrical Contractors license. (ECF 62 ¶ 35; ECF 63-4 at 5, 50). The

Board of Commissioners heard argument from Wilson and ACBD’s counsel; testimony from

Wilson, Hutter, and ACBD’s compliance officer; and received into evidence a transcript of the

March 9, 2023, hearing on the license revocation and a packet of documents from Wilson. (ECF

62 ¶ 35; ECF 63-4 at 5, 50; see ECF 42 Audio of Board of Commissioners Meeting March 29,

2023 (“Audio 3”), at 03:30-1:37:27). The Board of Commissioners then unanimously approved a

21

motion that Wilson communicate with ACBD as to AEY’s progress on open permits, clean them

up, and pay the fines, and that if AEY is caught in violation of the Rules and Regulations, then

AEY’s license will be revoked, to be revisited in sixty days. (Id. at 1:37:28-1:38:10).

On March 31, 2023, the Board of Commissioners issued its “Notice of Decision

Following Hearing of March 29, 2023.” (ECF 62 ¶ 37; ECF 63-4 at 6, 50). The Notice informed

that “[b]ased on the evidence presented at the hearing, the Board [of Commissioners]. . .

determined that AEY . . . repeatedly violated [ACBD] rules and regulations, despite having

previously been imposed with a 2-month license suspension in 2022.” (ECF 63-4 at 50; see ECF

62 ¶ 37; ECF 63-4 at 6). The Notice further stated that the Board of Commissioners “rescind[ed]

the indefinite revocation of license # BD35671 and issue[d] instead a suspension of [AEY’s]

license for the period of January 3, 2023, through July 3, 2023.” (ECF 63-4 at 50; see ECF 62 ¶

37; ECF 63-4 at 6).

On May 3, 2023, Wilson filed the instant case against Defendants. (ECF 1).

B. Standard of Review

Summary judgment may be granted only if there are no disputed genuine issues of

material fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court

“may not make credibility determinations, weigh the evidence, or decide which inferences to

draw from the facts; these are jobs for a factfinder.” Id. (citations omitted). The only task in

ruling on a motion for summary judgment is “to decide, based on the evidence of record,

whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst

Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). If the evidence is such that a

reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment

may not be granted. Payne, 337 F.3d at 770.

22

A court must construe the record in the light most favorable to the nonmoving party and

avoid “the temptation to decide which party’s version of the facts is more likely true[,]” as

“summary judgment cannot be used to resolve swearing contests between litigants.” Id. (citations

omitted). However, “a party opposing summary judgment may not rest on the pleadings, but

must affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. at 771

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

“When, as here, cross-motions for summary judgment are filed, we look to the burden of

proof that each party would bear on an issue of trial; we then require that party to go beyond the

pleadings and affirmatively to establish a genuine issue of material fact.” Diaz v. Prudential Ins.

Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007) (quoting Santaella v. Metro. Life Ins. Co., 123

F.3d 456, 461 (7th Cir. 1997)); see also M.O. v. Ind. Dep’t of Educ., 635 F. Supp. 2d 847, 850

(N.D. Ind. 2009). The assertion by one party “that there are no issues of material fact sufficient

to prevent the entry of judgment in its favor does not bar that party from asserting that there are

issues of material fact sufficient to prevent the entry of judgment as a matter of law against it.”

M.O., 635 F. Supp. 2d at 850 (citation omitted); see Zook v. Brown, 748 F.2d 1161, 1166 (7th

Cir. 1984). That is, cross-motions for summary judgment do not alter each party’s burdens in the

summary judgment analysis; each responsive party must establish a triable issue of fact to defeat

the moving party’s cross-motion for summary judgment. See McKinney v. Cadleway Props.,

Inc., 548 F.3d 496, 504 n.4 (7th Cir. 2008), abrogated on other grounds by Henson v. Santander

Consumer USA, Inc., 582 U.S. 79 (2017); M.O., 635 F. Supp. 2d at 850. The cross-motions “are

treated separately.” See McKinney, 548 F.3d at 504 n.4 (citation omitted).

23

C. Discussion

Wilson contends that there is no material factual dispute on this record and that he is

entitled to judgment as a matter of law on Counts 1, 3, 4, and 5 of the amended complaint. (ECF

25 at 1). In these counts, Wilson claims that Defendants violated his due process rights under the

Fourteenth Amendment by placing a condition on his ability to obtain permits and by denying

AEY two permits (Count 1), by revoking AEY’s Electrical Contractors license without pre-

deprivation notice or hearing (Count 3), by revoking his Master Electrician designation without

pre-deprivation notice or hearing (Count 4), and by the Board of Commissioners failing to

intervene after receiving correspondence about the violation of his constitutional rights (Count

5). (ECF 7). Wilson also “seeks a ruling on the challenge of the constitutionality” of Chapter 3 §

C of the Rules and Regulations—that is, the emergency revocation provision. (ECF 25 a 1, 6; see

ECF 6).

In response, and in their own summary judgment motion, Defendants offer several

arguments why Wilson’s arguments fail and why they are entitled to judgment as a matter of law

on these claims. (ECF 59, 61). The Court will address Defendants’ overarching arguments first

and then turn to the parties’ arguments pertaining to Counts 1, 3, 4, and 5.

1. Standing to Bring Suit on AEY’s Behalf

Defendants first argue that Wilson lacks standing to bring suit for any alleged injury to

AEY given that Wilson filed suit in his individual capacity and not in the name of AEY, a

limited liability company (LLC). (ECF 61 at 11-12). As such, Defendants contend that any

claims based on alleged harm to AEY should be dismissed.

Indeed, “a limited liability company . . . is a separate legal entity from its members, just

like a corporation is a separate legal entity from its shareholders.” Scruggs v. Wauwatosa Sav.

24

Bank, No. 17-C-0157, 2017 WL 4326514, at *3 (E.D. Wis. Sept. 28, 2017) (citing Spitz v.

Proven Winners N. Am., LLC, 759 F.3d 724, 730 (7th Cir. 2014)). “Although an injury to [AEY]

might, in turn, affect [Wilson] financially as a member of the limited liability company, this

indirect financial injury is not an injury for which [Wilson] has standing to seek redress in

federal court.” Scruggs, 2017 WL 4326514, at *3 (citation omitted); see also Fleming v. ISCO

Indus., Inc., 750 F. App’x 62, 63 (2d Cir. 2019) (dismissing case filed pro se by the LLC’s sole

member, stating that the pro so plaintiff lacked standing to pursue the action on behalf of the

LLC).

Nor will the Court afford Wilson, who is proceeding pro se, leave to amend his complaint

to add AEY as an additional plaintiff. “[A] limited liability company cannot proceed pro se in

federal court.” SelectSun GmbH v. Porter, Inc., No. 1:14-CV-215, 2015 WL 13710121, at *1 n.2

(N.D. Ind. Apr. 22, 2015) (citing United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir.

2008); Robinson ex rel. Ind. Reg’l Council of Carpenters Pension Tr. Fund v. Vision Drywall,

LLC, No. 2:07-cv-190, 2010 WL 2674475, at *3 (N.D. Ind. June 29, 2010)). Wilson “cannot

bring a federal claim on behalf of [AEY] because he is not a licensed attorney and therefore

cannot represent [AEY] in federal court.” Scruggs, 2017 WL 4326514, at *3 (citations omitted).9

Consequently, this suit can only go forward as to claims for alleged harm that Wilson

suffered individually, not AEY. Therefore, Count 3 of the amended complaint advancing claims

based on the emergency revocation and subsequent suspension of AEY’s Electrical Contractors

license will be DISMISSED without prejudice. Also, Count 1, which advances a due process

claim based on a condition placed on AEY’s Electrical Contractors license on January 3,

9 Furthermore, any motion to amend the complaint now would be untimely, given that Wilson’s deadline to

seek leave of Court to amend the pleadings passed on October 2, 2023. (ECF 21).

25

2023—that no permits would issue without Hutter’s approval—and the January 19, 2023, denial

of two permits to AEY (ECF 68-2 at 3-4) will be DISMISSED without prejudice. To explain,

while the email between Wilson and Hutter about the permits was addressed to Wilson, rather

than AEY (ECF 68-2 at 4), Chapter 1 § B.1.a of the Rules and Regulations provides that only a

licensed electrical contractor can obtain a permit from the ACBD. (ECF 63-3 at 5; see ECF 63-4

at 2 (“[O]nly an individual or business with an Electrical Contractors License is authorized to

secure a permit for electrical contracting.”). As such, the claim in Count 1 pertains to AEY, who

held the Electrical Contractors license, rather than Wilson individually.

2. Inapplicability of 18 U.S.C. §§ 241 and 242

Next Defendants challenge Wilson’s claims to the extent they attempt to seek relief under

18 U.S.C. §§ 241 and 242. (ECF 61 at 12-13; see ECF 7 ¶¶ 11, 13, 34, 50, 63). As Defendants

point out, these statutes create criminal liability for certain deprivations of civil rights and

conspiracy to deprive civil rights. (ECF 61 at 12).

Sections 241 and 242 do not create private rights of action or contain provisions

authorizing an award of damages in a civil suit. See Stuckey v. Hous. Auth. of Cnty. of Cook, No.

16-cv-03443, 2017 WL 11606727, at *2 (N.D. Ill. Sept. 18, 2017) (“[18 U.S.C. §§ 241, 245,

1011, and 1028] impose[] criminal liability in the event of a violation, but they do not allow for a

private right of action.” (collecting cases)); Ihmoud v. Erwin, No. 1:06-cv-1414-SEB-VSS, 2006

WL 3210045, at *1 (S.D. Ind. Nov. 3, 2006) (“18 U.S.C. §§ 241 and 242 provide no private right

of action and cannot form the basis of a civil suit.” (citation omitted)). As such, “[Wilson’s] Title

18 claims fail to state a valid cause of action because [Wilson], as a private citizen, may not file a

lawsuit under Title 18 of the United States Code.” Huston v. Slanina, No. 12 C 4582, 2012 WL

4464301, at *2 (N.D. Ill. Sept. 24, 2012) (citing Maine v. Taylor, 477 U.S. 131, 136 (1986)).

26

“The power to prosecute criminal cases in the federal courts lies solely with the United States

and its attorneys.” Id. (citation and footnote omitted).

Therefore, to the extent any claims are based solely on §§ 241 and 242, the claims cannot

survive. See McGee v. Nissan Motor Acceptance Corp., 619 F. App’x 555, 555 (7th Cir. 2015)

(dismissing pro se plaintiff’s claims under 18 U.S.C. §§ 241 or 1341 as “federal criminal statutes

that do not provide a private right of action”); Stuckey, 2017 WL 11606727, at *2 (dismissing the

pro se plaintiff’s claims resting on statutes that do not provide a private right of action to

individual plaintiffs); Ihmoud, 2006 WL 3210045, at *1 (same). Having said that, “[a] complaint

need not identify a legal theory, and specifying an incorrect theory is not fatal.” Bartholet v.

Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992); see also Clubb v. Ernest, No. 18

CV 50197, 2019 WL 4934598, at *1 (N.D. Ill. Oct. 7, 2019). Here, Wilson also brings his claim

under the due process clause of the Fourteenth Amendment and 42 U.S.C. § 1983. (ECF 7).

Consequently, the Court will not dismiss Wilson’s claims solely based on his misplaced

inclusion of 18 U.S.C. §§ 241 and 242 in the amended complaint.

3. Absolute Immunity as to Defendants Hutter and Brelje

Defendants also argue that individual Defendants Hutter and Brelje are entitled to

absolute immunity from Wilson’s § 1983 claims. (ECF 61 at 13-14). On the briefing submitted,

however, Defendants fail to carry their burden of showing that Hutter and Brelje are entitled to

this affirmative defense.

“The Supreme Court has recognized that some government officials perform ‘special

functions,’ which, because of their similarity to functions that would have been immune when

Congress enacted § 1983, deserve absolute protection from damages liability.” Hobbs. v.

Cappelluti, 899 F. Supp. 2d 738, 766 (N.D. Ill. Sept. 28, 2012) (internal quotation marks

27

omitted) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 (1993)). “To determine whether a

defendant qualifies for absolute immunity, the court applies a ‘functional approach,’ which

‘looks to the nature of the function performed, not the identity of the actor who performed it.’”

Id. (citing Buckley, 509 U.S. at 269). The Supreme Court described several characteristics of

quasi-judicial functions that a court should consider when assessing whether a public official

qualifies for absolute immunity:

(1) the need to assure that the individual can perform his functions without

harassment or intimidation; (2) the presence of safeguards that reduce the need for

damages actions as a means for controlling unconstitutional conduct; (3) the

insulation from political influence; (4) the importance of precedent; (5) the

adversarial nature of the process; and (6) the correctability of error on appeal.

Heyde v. Pittenger, 633 F.3d 512, 517 (7th Cir. 2011) (citing Butz v. Economou, 438 U.S. 478,

512 (1978)).

Typically, if the function was “quasi-judicial, the [official] enjoys absolute immunity. If

the function was administrative or investigatory, the [official] enjoys only qualified immunity.”

Spiegel v. Rabinovitz, 121 F.3d 251, 256 (7th Cir. 1997) (citing Henderson v. Lopez, 790 F.2d

44, 46 (7th Cir. 1986)).10 “Absolute immunity is only accorded for limited functions; the

presumption is that qualified rather than absolute immunity is sufficient to protect government

officials in the exercise of their duties.” Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th Cir. 1996)

(internal quotation marks and brackets omitted) (citing Burns v. Reed, 500 U.S. 478, 486-87

10 Officials enjoy qualified immunity from suit to the extent that their conduct “could reasonably have been

thought consistent with the rights they are alleged to have violated.” Sornberger v. City of Knoxville, Ill., 434 F.3d

1006, 1013 (7th Cir. 2006) (citations and quotation marks omitted); see also Hobbs, 899 F. Supp. 2d at 763. The

courts “follow a two-step analysis” in determining whether defendants are entitled to the defense of qualified

immunity. Sornberger, 434 F.3d at 1013. The court first asks “whether the plaintiff has asserted the violation of a

federal constitutional right.” Id. (citations omitted). “If such a violation did occur, [the court] then determine[s]

whether the right was so clearly established at the time of the alleged violation that a reasonable [official] would

know that his actions were unconstitutional.” Id. (citations omitted).

28

(1991)).

Courts have afforded absolute immunity to public officials in the following scenarios: a

county board of review’s decision on disputed property assessments, Heyde, 633 F.3d at 517-19;

see also Satkar Hosp. Inc. v. Cook Cnty. Bd. of Rev., 819 F. Supp. 2d 727, 731-32 (N.D. Ill. May

20, 2011); a local liquor commissioner’s suspension or revocation of a liquor license, Brunson v.

Murray, 843 F.3d 698, 710 (7th Cir. 2016); parole board members granting, denying, or

revoking parole, Kelkhoff, 86 F.3d at 1444; a director of state professional regulation’s

revocation of a physician’s license, Wilson v. Stewart, 621 F. Supp. 3d 900, 902 (N.D. Ill. Aug.

16, 2022); a board of examiner’s suspension of a plumbing and heating contractor’s license,

Pippen v. Scales, 822 F. Supp. 305, 309 (M.D.N.C. 1993); and members of a residential district

preservation commission issuing, modifying, or refusing to issue certificates of appropriateness,

Boczar v. Kingen, No. IP 99-0141-C-T/G, 1999 WL 33102132, at *9 (S.D. Ind. Aug. 12, 1999).

On the other hand, courts have found the following duties to be ministerial and denied

public officials absolute immunity: a parole officer’s actions involving day-to-day duties in the

supervision of a parolee, Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005); a clerk of

court’s duty to maintain the official court record, Snyder v. Nolen, 380 F.3d 279, 288-89 (7th Cir.

2004); and a sheriff or deputies whose misconduct involved the manner in which they enforced a

judge’s order, Richman v. Sheahan, 270 F.3d 430, 434-48 (7th Cir. 2001). Further, courts around

the country appear split in their application of absolute immunity to a zoning board’s decision

denying permit applications. See Adam Cmty. Ctr. v. City of Troy, 482 F. Supp. 3d 640, 651

(E.D. Mich. 2020) (collecting cases).

Defendants assert that the actions of Hutter and Breljie were “quasi-judicial acts

deserving of absolute immunity.” (ECF 61 at 14). They contend Hutter and Breljie acted within

29

the scope of their employment or appointment when they revoked Wilson’s Master Electrician

designation—or as Defendants phrase it, “reduced” it to a Journeyman Electrician. (Id. at 2, 14).

However, in making this argument, Defendants fail to analyze the relevant factors in federal case

law necessary to convince the Court that absolute immunity applies here. See Butz, 438 U.S. at

512 (identifying the relevant factors to consider for absolute immunity in a federal case).

The public official seeking the benefit of absolute immunity bears the burden of proving

it is justified. Kelkhoff, 86 F.3d at 1443. “[T]he [C]ourt declines to undertake the analysis

[Defendants] should have undertaken in the first instance.” Swenson v. Siskiyou Cnty., No. 2:08-

CV-1675 KJM CMK, 2014 WL 6390656, at *13 (E.D. Cal. Nov. 17, 2014); see Baliga v. Smith,

594 F. Supp. 3d 1084, 1088 (S.D. Ind. 2022) (denying quasi-judicial immunity to defendants

where they relied on conclusory statements that did not consider any of the relevant factors

under federal law); Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d

357, 366 (S.D.N.Y. 2011) (denying quasi-judicial immunity to defendants where they failed to

argue the relevant factors under federal law). Consequently, on the record presented, the Court

finds that Defendants have not carried their burden of establishing that Hutter or Breljie are

entitled to quasi-judicial immunity.11 As such, Defendants’ summary judgment motion will be

11 Defendants do not argue in the alternative that Hutter or Breljie are entitled to qualified immunity. Nor

do Defendants suggest that Defendant Krauhs is entitled to absolute or qualified immunity. Consequently, the Court

will not take up that analysis here. See Harper v. Dart, No. 13 C 9265, 2014 WL 13113665, at *1 (N.D. Ill. Aug. 5,

2014) (“The Court will not do a party’s legal research for it nor make a party’s arguments for it.” (citation omitted)).

Also, Defendants do not argue that Defendant Board of Commissioners is entitled to absolute immunity,

and wisely so. “Unlike individuals sued in their individual capacities, . . . [governmental] entities are not entitled to

absolute immunity.” Capra v. Cook Cnty. Bd. of Rev., 733 F.3d 705, 710 (7th Cir. 2013); see Hernandez v. Sheahan,

455 F.3d 772, 776 (7th Cir. 2006) (“[U]nits of government are not entitled to immunity in suits under § 1983.

Official immunities (judicial, legislative, absolute, qualified, quasi, and so on) are personal defenses designed to

protect the finances of public officials whose salaries do not compensate them for the risks of liability under vague

and hard-to-foresee constitutional doctrines. That justification does not apply to suits against units of state or local

government, which can tap the public fisc.”).

30

DENIED as to this affirmative defense at this juncture, though the Court will afford Defendants

leave to file a revised summary judgment motion on this defense.

4. Wilson’s Due Process Claim as to Revocation of his Master Electrician Designation

The Court now turns to Wilson’s procedural due process claim based on the revocation of

his Master Electrician designation, which Wilson asserts is “constitutionally protected property .

. . . protected from deprivation without . . . due process.” (ECF 26 at 2). This claim is advanced

in Count 4 of Wilson’s amended complaint. (ECF 7 at 7-8).

Procedural due process “imposes basic procedural obligations on the government—in

most cases, prior notice and a meaningful opportunity to be heard—before it deprives a person of

life, liberty, or property.” Manley v. Law, 889 F.3d 885, 890 (7th Cir. 2018) (citation omitted).

“The two elements of a procedural due process claim are (1) deprivation of a protected interest

and (2) insufficient procedural protections surrounding that deprivation.” Tucker v. City of Chi.,

907 F.3d 487, 491 (7th Cir. 2018) (citation and internal quotation marks omitted).

a. The Parties’ Arguments

Wilson asserts the record is undisputed that the Master Electrician designation was

“revoked without warning or notice.” (ECF 26 at 2). He argues that Defendants “knew ahead of

the deprivation and a required notice or hearing should have been afforded,” making a “post

deprivation hearing . . . moot.” (Id.). Wilson further argues that the February 2, 2023, hearing

was “one sided and unfair.” (Id.). Therefore, as Wilson sees it, he is entitled to judgment as a

matter of law on his due process claim based on the revocation of his Master Electrician

designation.

In response, Defendants concede that a government-issued license to perform certain

types of work that allow the holder to earn his livelihood generally is a protected property

31

interest. (ECF 61 at 15). But Defendants further note an exception exists in that “where a statute

or ordinance allowing revocation or suspension of a license contains language of offering

discretion to the licensing agency, there is no property interest.” (Id.). Therefore, as Defendants’

argument goes, “[t]he licenses and permits issued by the ACBD are subject to the discretion of

the officers and the Board and therefore there is no property interest of any holder,” causing

Wilson’s due process claim to fail as a matter of law. (Id. at 16).

b. Protected Property Interest

“‘[T]o have a property interest in a benefit, a person clearly must have more than an

abstract need or desire for it,’ and ‘more than a unilateral expectation of it.’” Lukaszczyk v. Cook

Cnty., 47 F.4th 587, 605 (7th Cir. 2022) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972)). “Instead, the person must ‘have a legitimate claim of entitlement to it.’” Id.

(citing Roth, 408 U.S. at 577). “[I]t is a purpose of the ancient institution of property to protect

those claims upon which people rely in their daily lives, reliance that must not be arbitrarily

determined.” Id. (citing Roth, 408 U.S. at 577). “The right to a hearing provides an opportunity

to vindicate those claims.” Id. (citing Roth, 408 U.S. at 577).

“Government-issued licenses to perform certain types of work that allow the license

holders to earn their livelihoods are a form of government-created property—an

entitlement—and have long been considered property protected by the Fifth and Fourteenth

Amendments.” Simpson v. Brown Cnty., 860 F.3d 1001, 1006 (7th Cir. 2017) (citations

omitted); see Feiza v. Ill. L. Enf’t Training & Standards Bd., No. 23 C 1905, 2023 WL 6276520,

at *6 (N.D. Ill. Sept. 26, 2023). “Of course, a state can set conditions for when a license should

be revoked, and broad discretion to freely suspend or revoke a license might destroy a property

interest[.]” Feiza, 2023 WL 6276520, at *6 (citation omitted); see Town of Castle Rock v.

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Gonzales, 545 U.S. 748, 756 (2005) (“[A] benefit is not a protected entitlement if government

officials may grant or deny it in their discretion.” (citation omitted)). “Neither of those legal

principles changes the bottom line: a licensee retains the right to due process through suspension

and revocation.” Feiza, 2023 WL 6276520, at *6. “While that right is often limited to contesting

the applicability of a statutory provision to the revocation, . . . that due process must,

nonetheless, be carefully guarded.” Id.

Defendants argue that Wilson’s due process claim fails at the outset because the licenses,

permits, and designations issued by ACBD are subject to the discretion of the officers and

Board, and as such, do not give rise to a protected property interest. (ECF 61 at 16). Specifically,

Defendants point to Chapter 3 § C of the Rules and Regulations that allow the Building

Commissioner to revoke a license for charges of incompetence, code violations, unethical

conduct, fraud, or deceit without notice or hearing if the Building Commissioner determines that

“an emergency exists which requires immediate action to protect the public health or safety.”

(ECF 61 at 17; ECF 63-3 at 14-15). According to Defendants, because the Rules and Regulations

afford Hutter the discretion to act in the event of an emergency, Wilson does not have a property

interest in the Master Electrician designation. (Id.); see Baliga, 594 F. Supp. 3d at 1090

(commenting that an ordinance permitting a committee to consider factors pertaining “to the

public health, safety and welfare” vests the committee with discretion).

But the provision that Defendants cite does not reflect the entirety of the Building Code

and Rules and Regulations. Relevant to this dispute, § 6-2-3 of the Building Code provides:

The Building Commissioner is hereby authorized and directed to administer and

enforce all of the provisions of this Code. Whenever in the building regulations, it

is provided that anything must be done to the approval of or subject to the

direction of the Building Commissioner or any other officer of the [ACBD], this

shall be construed to give such officer only the discretion of determining whether

33

the rules and standards established by ordinance has been complied with; and no

such provision shall be construed as giving any officer discretionary powers as to

what such regulations, codes, or standards shall be, or power to require

conditions not prescribed by ordinances or to enforce ordinance provisions in an

arbitrary or discriminatory manner.

(ECF 63-2 at 1 (emphasis added)). Further, § 6-2-14 provides that the Building Commissioner

may issue a stop-work order “[w]henever any work is being done contrary to the provisions of

this Code.” (Id. at 6).

In turn, Chapter 3 § A of the Rules and Regulations provides:

If any person, firm, or corporation obtains a license, or any renewal thereof, by

fraud, falsehood, misrepresentation, or deceit . . . ; or if the Building

Commissioner or a representative of the Department prefers charges in writing

against a licensee, said charges relating to incompetence, code violations,

unethical conduct, fraud, or deceit in the performance of any function of the

respective trade by such licensee, then the Board shall fix a time, date, and place

for hearing such matter. At least ten (10) days prior thereto, the Board shall serve

a written copy of any such charges and notice of the time and place of the hearing

there upon the licensee . . . . The Board may cause an investigation of the facts to

be made in such matters and may appoint investigators to conduct the

investigation as it sees fit.

(ECF 63-3 at 14 (emphasis added)). And significant to this dispute, Chapter 3 § C of the Rules

and Regulations provides:

If the Building Commissioner determines that an emergency exists which requires

immediate action to protect the public health or safety, he may without notice or

hearing issue an order revoking the license of the licensee for charges related to

incompetence, code violations, unethical conduct, fraud, or deceit in the

performance of any function of the respective trade by such licensee by giving

actual notice or depositing in the United States Mail a registered or certified

notice that said license is revoked. Said notice by the Building Commissioner

shall outline in writing what the Building Commissioner perceives to be of such

great emergency or what actions by the licensee will or are causing the public to

be harmed that the normal notice procedure cannot [be] followed. . . . Any such

licensee shall give up his license immediately and shall comply therewith

immediately with the revocation as ordered by the Building Commissioner, but

upon petition and written request to the Building Department shall be afforded a

hearing as soon as possible before the Building Department Board.

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(Id. at 14-15 (emphasis added)).

Having duly considered the Building Code and Rules and Regulations in context, the

Court weights heavily that “[a] long line of precedent recognizes that when a person is awarded a

license, [he] has a property interest in that same license.” Feiza, 2023 WL 6276520, at *5; see

Barry v. Barchi, 443 U.S. 55, 64 n.11 (1979); Mackey v. Montrym, 443 U.S. 1, 10 n.7 (1979);

Dixon v. Love, 431 U.S. 105, 112 (1977); Simpson, 860 F.3d at 1006. The Court further

concludes that though “[t]he [emergency revocation] provision does add a wrinkle into the legal

analysis, . . . it does not eliminate the property interest.” Feiza, 2023 WL 6276520, at *6. The

Rules and Regulations “engendered a clear expectation of continued enjoyment of a license”

absent charges of incompetence, code violations, unethical conduct, fraud, or deceit in the

performance of the licensee’s trade, giving a licensee a “legitimate claim of entitlement . . . that

he may invoke.” Barry, 443 U.S. at 64 n.11 (citations and internal quotation marks omitted)

(finding a property interest existed in a horse trainer’s license though the statute allowed for

immediate suspension upon a showing that his horse had been drugged or that he was negligent

in failing to prevent the drugging); Spinelli v. City of N.Y., 579 F.3d 160, 169 (2d Cir. 2009)

(“Although there may be no protected property interest where the licensor has broad discretion to

revoke the license, here, such discretion was carefully constrained.” (internal citation omitted)).

Therefore, the Court concludes as a matter of law that Wilson has satisfied the first prong

of his due process claim based on the revocation of his Masters Electrician designation.12

12 The Court has not taken up the issue of whether a property right exists in a permit—much less a permit

application—given that the Court has concluded supra that Wilson does not having standing to advance that claim

on behalf of AEY. Nor did the parties cite case law pertaining to permits in their briefing.

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c. Procedural Due Process Protections Surrounding the Deprivation

Turning to the second prong of Wilson’s due process claim, Defendants argue that even if

the Court does find a property interest exists in the Master Electrician designation, Wilson was

afforded appropriate due process, dooming his due process claim. (ECF 61 at 18-20). Wilson

disagrees, asserting that the record is undisputed that his Master Electrician designation “was

revoked without warning or notice” (ECF 26 at 2), entitling him to judgment as a matter of law.

“The general test for determining what process is due and when was set out in Mathews

v. Eldridge, 424 U.S. 319 . . . (1976).” Simpson, 860 F.3d at 1006. “Mathews identified three

factors to be balanced: first, the private interest at stake; second, the risk of erroneous

deprivation and the value, if any, of additional procedural safeguards; and third, the

government’s countervailing interests.” Id. (citing Mathews, 424 U.S. at 335). The basic rights

guaranteed by due process are: “notice of the intended adverse government action and an

opportunity to be heard in response, although more elaborate procedural rights—such as the

rights to present evidence, to confront adverse witnesses, and to be represented by counsel—may

apply in cases in which vital private interests are at risk.” Id. (citing Goldberg v. Kelly, 397 U.S.

254 (1970)). “The spectrum of due process requirements includes, at one end, a full trial-type

evidentiary hearing before a deprivation occurs . . . , and at the other end, procedures conducted

after summary action has been taken in response to an emergency . . . .” Id. (citations omitted).

1. Private Interest

As to the first factor, Defendants seemingly concede for purposes of summary judgment

that Wilson has “a strong interest” in his Master Electrician designation. (ECF 61 at 19). Indeed,

Wilson’s submissions reflect that his ability to earn a livelihood depends on his Master

36

Electrician designation. (See ECF 68 ¶ 11; ECF 68-2 at 10, 41-42).13 “The weight of the private

interest in continued employment ‘cannot be gainsaid.’” Id. at 1008 (citing Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 543 (1985)). “The Supreme Court has ‘frequently recognized

the severity of depriving a person of the means of livelihood.’” Id. (citing Loudermill, 470 U.S.

at 543). Therefore, Wilson has satisfied the private-interest factor.

2. Risk of Erroneous Deprivation

Turning to the second factor, the Court assesses “the risk that, under the established

procedures . . . , a deprivation might occur erroneously.” Id. at 1009. Here, the Building Code

affords the Building Commissioner “the discretion of determining whether the rules and

standards established by ordinance has been complied with” (ECF 63-2 at 1), and the authority to

“order the work stopped by notice in writing” “[w]henever any work is being done contrary to

the provisions of [the Building] Code” (id. at 6).

Further, the Rules and Regulations enable the Building Commissioner to, if he

“determines that an emergency exists which requires immediate action to protect the public

health or safety,” revoke a license without notice or hearing “for charges related to

incompetence, code violations, unethical conduct, fraud, or deceit in the performance of any

function of the respective trade . . . .” (ECF 63-3 at 14-15). In doing so, the Building

Commissioner must give notice that the license has been revoked and outline in writing “what

the Building Commissioner perceives to be of such great emergency or what actions by the

13 While Wilson could still have worked outside of Allen County, the Seventh Circuit has stated that “[t]he

mere possibility of some other work in some other place must seem cold comfort to [those] who lose their jobs or

professional licenses.” Simpson, 860 F.3d at 1009. “While a fired worker may find employment elsewhere, doing so

will take some time and is likely to be burdened by the questionable circumstances under which he left his previous

job.” Id. (citing Loudermill, 470 U.S. at 543). “This is especially true where a license revocation forces a person not

only to find a new job but also to transition to a new field.” Id.

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licensee will or are causing the public to be harmed that the normal notice procedure cannot [be]

followed.” (Id. at 15). The licensee must give up his license immediately; however, the ACBD

Board must afford the licensee a hearing as soon as possible “upon petition and written request.”

(Id.).

Consequently, given the foregoing provisions, a risk exists that someone like Wilson

could have his license revoked without prior warning or pre-deprivation opportunity to be heard.

See Simpson, 860 F.3d at 1008 (“[The county official] was not acting unpredictably or breaking

the rules: he did exactly what the ordinance told him to do. The possibility of license revocation

without due process was not unforeseeable. It was authorized in the ordinance itself.”). Nor do

Defendants argue that such risk does not exist. (See ECF 61 at 19). “When a deprivation is

irreversible—as is the case with a license suspension that can at best be shortened but cannot be

undone—the requirement of some kind of hearing before a final deprivation takes effect is all the

more important.” Simpson, 860 F.3d at 1009 (quoting Mackey v. Montrym, 443 U.S.1, 21

(1979)).

3. Government Interest

Turning to the third factor, “public health is one of the oldest examples of a government

interest that can justify summary deprivation of property.” Id. (citation, brackets, and internal

quotation marks omitted); see Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S.

264, 300-01 (1981) (permitting emergency orders to cease mine operations to avoid imminent

disasters). Defendants revoked Wilson’s Master Electrician designation on an emergency basis

as a threat to public health and safety. (ECF 68-2 at 5, 7).

The Revocation Letter sent to Wilson on January 20, 2023, cited “unsafe workmanship

38

on more than one occasion” and “continual disregard for the Rules and Regulations and the

Code, as well as the public health and safety . . . . which has culminated in a threat to the public

health and safety.” (Id. at 5).14 It further stated that work completed at 9179 West Washington

Center Road, 1725 Kentucky Avenue, and 3109 Oxford Street “has various code violations.” (Id.

at 5). Defendants argue that Wilson was not entitled to pre-deprivation due process because the

emergency situation warranted summary action under the Rules and Regulations.

But the current record is not sufficiently factually developed at this juncture for the Court

to discern the proper weighting and balancing of the government interest factor. The Revocation

Letter does not explain how the problems at the three properties identified therein “were both so

serious and so urgent as to justify summary action by the County, without an opportunity for

[Wilson] to be heard.” Simpson, 860 F.3d at 1009. And while Hutter now adds in an affidavit

that “loose wiring” found in an inspection at 9179 West Washington Center Road “could have

caused significant property damage or risked the health and safety of individuals in or around the

residence, including that of injury or death by electrocution” (ECF 63-4 at 3), that, standing

alone, may not necessarily establish that the immediate revocation of Wilson’s Master

Electrician designation was warranted, rather than just a stop-work order for the 9179 West

Washington Center Road property under § 6-2-14 of the Building Code.

Having said that, the audio recordings of the February 2, March 9, and March 29, 2023,

meetings do include a lengthy list of violations at various jobs sites—some described as

14 The Revocation Letter dated January 20, 2023, was addressed to “Christopher Wilson c/o AEY Electrical

Service LLC,” rendering it a bit unclear on its face as to whether it was revoking solely AEY’s Electrical

Contractors license or Wilson’s Master Electrician designation as well. (Id.). Yet, the parties seem to agree that the

Revocation Letter intended to revoke AEY’s Electrical Contractors license. (See ECF 25 at 3; ECF 63-4 at 3-4.). The

February 3, 2023, letter, however, made clear that ACBD also revoked Wilson’s Master Electrician designation.

(ECF 68-2 at 7).

39

dangerous to the public. (ECF 42). However, the recordings are unclear whether these violations

were attributed to solely AEY, or Wilson too. (Id.). If this lengthy list of violations were

attributable to Wilson individually, and were “so serious and so urgent as to justify summary

action by the County, without an opportunity for [Wilson] to be heard,” Simpson, 860 F.3d at

1009, this does not square with the ACBD’s decision to reinstate Wilson’s Master Electrician

designation just five weeks later. Consequently, the Court cannot discern on this factual record

whether Wilson was denied pre-deprivation due process when ACBD revoked his Master

Electrician designation on an emergency basis and issued him a Journeyman Electrical

designation in its stead.

Defendants argue that regardless, “sufficient post-deprivation process existed” because

Wilson requested, and was afforded, a post-deprivation hearing before the ACBD Board on

February 2, 2023, at which he had the opportunity to present evidence. (ECF 61 at 19; see ECF

63-4 at 4). And in any event, the ACBD Board reinstated Wilson’s Master Electrician

designation on March 7, 2023, after Wilson filed a request for hearing before the Board of

Commissioners. (ECF 63-4 at 5, 48). But the fact that ACBD reinstated Wilson’s Master

Electrician designation five weeks after revoking or suspending it does not undo the harm

Wilson suffered as a result of that revocation or suspension. See Simpson, 860 F.3d at 1009

(referring to a deprivation as “irreversible” when “a license suspension . . . can at best be

shortened but cannot be undone” (quoting Mackey, 443 U.S. at 21)). Nor does it appear that

Wilson has received any compensation for his economic injury. See id. at 1012 (“The

requirement that an adequate post-deprivation remedy for an economic injury must provide some

form of compensation parallels the requirement of just compensation under the Takings Clause

40

of the Fifth Amendment.”). “Reinstatement of a [Master Electrician designation], like

reinstatement of a liquor license, does not address the financial losses resulting from an inability

to operate one’s business for some length of time.” Id. at 1013.

In sum, the factual record is not sufficiently developed at this juncture with respect to the

“great emergency” (ECF 63-3 at 15) that ACBD claims existed to revoke or suspend Wilson’s

Master Electrician designation without notice and hearing under Chapter 3 § C of the Rules and

Regulations. As such, the Court cannot determine as a matter of law whether Wilson was

wrongfully denied the pre-deprivation process otherwise due to him under Chapter 3 § A of the

Rules and Regulations. Further, the Court cannot conclude on this record that sufficient post-

deprivation process was afforded Wilson given that the record does not reflect any post-

deprivation remedy for his economic injury. Consequently, on this record, both parties’ summary

judgment motions will be denied as to Wilson’s due process claim stemming from the revocation

of his Master Electrician designation.

5. Wilson’s Failure-to-Intervene Claim Against the Board of Commissioners

Wilson also seeks summary judgment in his favor on the failure-to-intervene claim

against the Board of Commissioners, which is in Count 5 of his amended complaint. (ECF 25 at

5-6). In that count, Wilson alleges that the Board of Commissioners has “a duty to Allen County

citizens to intervene and stop civil rights being violated,” but the Board failed to do so when he

sent them various communications about the civil rights violations he allegedly experienced.

(ECF 7 ¶ 64).

Wilson, however, fails to meaningfully develop and support this argument in his

summary judgment motion or briefs. That is, he fails to cite a single case in which a local

41

government official has been held liable for “failure to intervene” outside the use of excessive

force by police officers. (See ECF 25 at 5 (citing Sanchez v. City of Chi., 700 F.3d 919, 927 (7th

Cir. 2012); Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994))). Nor do Defendants address

Count 5 and Wilson’s failure-to-intervene legal theory—or for that matter, any other legal theory

likely intended by Wilson against the Board of Commissioners in Count 5—in their response

brief to Wilson’s summary judgment motion or in their own summary judgment motion.

“The Court will not make arguments for the parties, nor should the parties expect that

the Court will consider arguments that the parties could have made, but did not.” Fair Hous. Ctr.

of Cent. Ind., Inc. v. Rainbow Realty Grp., Inc., No. 1:17-cv-01782-JMS-TAB, 2022 WL

6158365, at *1-2 (S.D. Ind. Oct. 7, 2022) (“[A] litigant who fails to press a point by supporting it

with pertinent authority, or by showing why it is a good point despite a lack of supporting

authority or in the face of contrary authority, forfeits the point.” (citation omitted)).

Consequently, the Court will summarily DENY both parties’ summary judgment motions on

Wilson’s failure-to-intervene claim advanced in Count 5 of his amended complaint, but not

preclude either party from filing a revised summary judgment motion on that count.

6. Wilson’s Constitutional Challenge to Chapter 3 § C of the Rules and Regulations

As a final matter, Wilson “seeks a ruling on the challenge of the constitutionality” of

Chapter 3 § C of the Rules and Regulations—that is, the emergency revocation provision. (ECF

25 at 1, 6; see ECF 6). He contends that this provision of the Rules and Regulations is

unconstitutional as written because it does not require any pre-deprivation due process, lacks a

clearly-defined definition of what constitutes an emergency, and affords too much discretion to

the Building Commissioner. (ECF 25 at 6).

42

Defendants were not placed on adequate notice that the Court would take up the

constitutional challenge raised by Wilson in Docket Entry No. 6. To explain, Wilson filed the

“Notice of Constitutional Challenge of Statu[t]e” via a separate document on May 30, 2023, but

then amended his complaint thereafter on June 20, 2023. (ECF 6, 7). In the amended complaint,

Wilson did not challenge the constitutionality of Chapter 3 § C on its face aside from cursorily

requesting in the final sentence “a declaration ruling part of the [ACBD’s] Rules and Regulations

unconstitutional.” (ECF 7 at 17).

As this Court explained previously, “[p]iecemeal pleadings cause confusion and

unnecessarily complicate interpretation of a movant’s allegations and intent . . . .” (ECF 58 at 1).

Such is the case here. Therefore, to remedy this confusion and place Defendants on notice, and

so that the constitutional issue is not dismissed merely on technical grounds, the Court will

summarily DENY without prejudice Wilson’s motion for summary judgment as to the

constitutional challenge. Having said that, the Court will GRANT Wilson leave to file a separate

summary judgment motion, supported by proper factual and legal citations, solely on the issue of

whether Chapter 3 § C of the Rules and Regulations is unconstitutional on its face. The motion

will brief out in accordance with Local Rule 56-1.

V. CONCLUSION

For the reasons given herein:

(a) Defendants’ first motion to strike (ECF 38) is DENIED;

(b) Defendants’ second motion to strike (ECF 75) is GRANTED IN PART and

DENIED IN PART as set forth in this Opinion and Order;

(c) Wilson’s motion for partial summary judgment (ECF 25) is DENIED. However,

43

Wilson may file, on or before the dispositive motions deadline, a separate

summary judgment motion, supported by proper factual and legal citations, on the

issue of whether Chapter 3 § C of the Rules and Regulations is unconstitutional

on its face. The motion will brief out in accordance with Local Rule 56-1;

(d) Defendants’ cross-motion for summary judgment (ECF 59) is GRANTED IN

PART and DENIED IN PART. The motion is GRANTED as to Counts 1 and 3 of

the amended complaint, and those Counts are DISMISSED without prejudice.

The motion is otherwise DENIED. However, Defendants may file, on or before

the dispositive motions deadline, a revised summary judgment motion whether

Defendants Hutter and Brelje are entitled to absolute immunity or qualified

immunity from Wilson’s § 1983 claims;

(e) Given that both summary judgment motions were summarily denied as to Count

5, that is, Wilson’s failure-to-intervene claim against the Board of

Commissioners, either party may file a revised summary judgment motion on

Count 5 prior to the dispositive motions deadline; and

(f) Wilson’s motion for oral argument (ECF 86) is DENIED as unnecessary.

SO ORDERED.

Entered this 7th day of August 2024.

/s/ Susan Collins

Susan Collins

United States Magistrate Judge

44