# FORBES v. CERVANTES

> District Court, S.D. Indiana · July 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10647054

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** July 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

IAN FORBES, )
)
Plaintiff, )
)
v. ) No. 1:22-cv-02290-JRS-MG
)
FERNANDO CERVANTES, )
SYDNIE HENSEL, )
)
Defendants. )
)
)
NATHAN K. VINING, )
)
Interested Party. )
Order on Motion for Summary Judgment
This pro se § 1983 civil rights case continues a rape and child custody dispute from
state court. Now before the Court is Cervantes' Motion for Summary Judgment. (ECF
No. 160.)
I. Legal Standard
The legal standard on summary judgment is well established:
Summary judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine dispute
of material fact exists 'if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'" Skiba [v. Illinois Cent. R.R.
Co., 884 F.3d 708, 717 (7th Cir. 2018)] (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 [] (1986)). A theory "too divorced from the
factual record" does not create a genuine issue of material fact. Id. at
721. "Although we construe all facts and make all reasonable inferences
in the nonmoving party's favor, the moving party may succeed by
showing an absence of evidence to support the non-moving party's
claims." Tyburski v. City of Chicago, 964 F.3d 590, 597 (7th Cir. 2020).
Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 718 (7th Cir.
2021). A dispute of fact is only "material" if it affects the outcome according to the
applicable substantive law. Anderson, 477 U.S. at 248.

The Court applies that standard here.
II. Discussion
A. Background
Forbes has made different claims, some vague and some contradictory, at different
points over the course of this case. The Court found some clarity in the course of the
Parties' briefing of Cervantes' motion to dismiss. (See Order 2–4, ECF No. 157.)

There, the Court summarized Forbes' version of the facts:
Forbes and Hensel, who are apparently unmarried, have two children
together. On March 9, 2019, Forbes attacked Hensel, conduct for which
he was later convicted of rape and criminal confinement. See State v.
Forbes, Marion County Superior Court, Case No. 49D27-2003-F3-
012742 (trial court docket); Forbes v. State, 206 N.E.3d 391 (Ind. Ct.
App. 2023) (affirming conviction). The children were not present. After
the attack, Hensel did not let Forbes contact their children. She
reported the attack to police two days later, on March 11, at which point
IMPD Officer Cervantes was assigned to the case. Forbes thinks that
Hensel was considering letting him see the children until she talked to
Cervantes, but that Cervantes' advice changed her mind. Hensel sought
and on March 13 obtained an ex parte Order for Protection from
Hamilton County Superior Court. (ECF No. 117-5.) For the next year,
Forbes would contact Hensel asking to see the children, and she,
allegedly on Cervantes' advice, would not respond.
In January 2020, Forbes hired a lawyer and filed paternity suits in
Marion County. Hensel did not initially respond to those suits, even
though, as Forbes alleges, she knew they had been filed. Forbes thinks
Cervantes advised her not to respond. Hensel was summoned on March
23, 2020, and notified shortly after that a hearing had been set in the
paternity cases. In response, Forbes claims, Hensel finally decided to
have Cervantes recommend the state prosecutor charge Forbes for the
March 2019 attack. Forbes was charged on March 30, 2020, and a no-
contact order was entered in the criminal case on June 25, 2020.
Hensel did not appear in the paternity cases until March 2021. Those
cases apparently remain pending. Forbes was convicted in the criminal
case in March 2022 and sentenced in April 2022.
(Order 2–3, ECF No. 157.) The Court also discussed Forbes' claims (which apparently
at this point only concern Cervantes, not Hensel):
Forbes alleges four injuries. In his own words:
I. being prevented parental access prior to the Order for
Protection being issued, from 3/11/19 – 3/13/19.
II. being prevented from making important parenting
decisions regarding the care, control, and management of
his children, from 3/13/19 – 3/10/21.
III. being prevented from the meaningful access and
opportunity to be heard in the Marion Circuit Court, from
3/30/20 – 3/10/21.
IV. interference with the rights to familial association by
Defendant Cervantes having falsely listed Plaintiff's
children as witnesses, in order to prevent Plaintiff from
exercising his parental rights. This began on 6/25/20 and
ended 4/18/2022.
(Pl.'s Resp. 16, ECF No. 117.) To be clear, "being prevented" here means
something like "Hensel, acting on Cervantes' advice, prevented me."
Lining up the dates in the claims with the dates in the "material facts"
helps to understand which conduct is supposed to have caused which
injury. So, in Claim I, Forbes claims that Hensel (on Cervantes' advice)
did not let him see their children in the days after the attack. In Claim
II, Forbes claims that Hensel (on Cervantes' advice) violated the terms
of the Hamilton County Order for Protection by refusing to talk to him
about their children. In Claim III, Forbes claims that Hensel (on
Cervantes' advice) refused to appear in the Marion County paternity
cases. And in Claim IV, Forbes claims that Cervantes falsely listed the
children as witnesses of the attack to have them included in the criminal
case's no-contact order.
Telling, too, is what Forbes does not allege. He does not allege that
Cervantes, or any other state official, took his children. He does not
allege that Cervantes restrained him from seeing the children. He does
not allege that the Hamilton County protective order was invalid. He
does not allege that the Marion County paternity court was deceived or
defrauded. And he does not allege that the Marion County criminal
court's protective order was invalid (only that it ought not to have
included the children).
Really, then, this case is at bottom a private quarrel: Forbes thinks
Hensel ought to have let him see their children after he raped her. She
did not, and he thinks his Constitutional rights were violated because
she took a police officer's advice on the matter.
(Order 3–4, ECF No. 157.) The Court did not get into the merits of those claims
because the Motion to Dismiss was predicated exclusively on Rooker-Feldman
jurisdictional grounds. Now it is time. Even taking Forbes' allegations as admissible
evidence, in the nature of a verified complaint based on personal knowledge, see Beal
v. Beller, 847 F.3d 897, 901 (7th Cir. 2017), the conduct Forbes alleges does not clear
the immunity bar. That ends the case.
B. Merits
Cervantes, a police officer, is entitled to qualified immunity unless "(1) [Forbes]
adequately alleged facts that, if true, would constitute a violation of a statutory or
constitutional right, and (2) the right was 'clearly established' at the time of the
alleged violation, such that a reasonable public official would have known his conduct
was unlawful." Hanson v. LeVan, 967 F.3d 584, 592 (7th Cir. 2020) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The Court may consider those elements in
either order. Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019). To prove a right was
"clearly established," Forbes would have to "show either a reasonably analogous case
that has both articulated the right at issue and applied it to a factual circumstance
similar to the one at hand or that the violation was so obvious that a reasonable
person necessarily would have recognized it as a violation of the law." Id. (quoting
Howell v. Smith, 853 F.3d 892, 897 (7th Cir. 2017)).
Forbes' claims are all barred by Cervantes' immunity.

Claim I, that Hensel and Cervantes "prevented" him from seeing his children in
the days after the attack, does not amount to a constitutional violation. Cervantes
can only be liable for his own behavior, Milchtein v. Milwaukee Cnty., 42 F.4th 814,
824 (7th Cir. 2022), and the only thing he is alleged to have done is recommend to
Hensel that she keep the children away from Forbes. Mere advice is not the sort of
coercive government action that the constitution shields us from. This is far from the
cases where the government takes custody of children on a mere hunch; ultimately

Hensel, the other parent and herself a private citizen, was the intervening cause in
deciding which actions to take. (One could say, alternately, that Forbes here fails to
state a claim. E.g. id. (so doing); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)
(requiring claims to be "plausible"). A further obstacle is that Forbes' own
documentary evidence tends to show that Cervantes and Hensel did not confer until
March 20, a week after the deprivation Forbes alleges in Claim I. (Pl.'s Ex. 24, ECF

No. 117-24.))
Even if the alleged conduct in Claim I were held to violate a constitutional right,
no such right is "clearly established." It is not facially outrageous for an officer to
advise a potential victim of sexual assault not to have further contact with her alleged
assaulter. Leiser, 933 F.3d at 701 (looking for actions that are "obvious[ly]" wrong).
And the Court can find no precedent suggesting, much less holding, that a police
officer violates the constitution by giving advice.
Claim II fares the same: Cervantes probably is not responsible for Hensel's

decision not to follow the Hamilton County protective order; he is alleged to have
"instructed" her to disregard the order, but she made the choice herself. Even if
Cervantes were held responsible, it is not a constitutional violation, because, for
random, unauthorized acts of state employees, a due process violation lies only where
there is no effective remedy in state court. Leavell v. Illinois Dep't of Nat. Res., 600
F.3d 798, 804 (7th Cir. 2010). Forbes did have an effective remedy: he could have,
and perhaps did, ask the Hamilton County court to enforce its own order by a show-

cause or contempt hearing. (Pl.'s Resp. 7, ECF No. 117 (alleging petition to Hamilton
County court).) And that assumes Forbes has a "liberty" or "property" right in the
proper enforcement of the protective order's terms, Leavell, 600 F.3d at 804, which
the Court doubts, Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 766
(2005).
And again, even if Cervantes were held responsible for Hensel's disregard of the

order, and even if his instructions amount to a constitutional violation, that violation
is neither obvious nor clearly established by precedent.
Likewise with Claim III. Cervantes probably is not responsible for Hensel's
decision not to appear in the Marion County paternity case, even if he did advise her
to avoid service. Even if Cervantes were held responsible, Forbes probably has no
protected interest in having Hensel appear in court. And even if Cervantes is
responsible, and Forbes has a protected interest, there is no due process violation
because Forbes had relief at hand by petitioning the court to enforce its orders, find
Hensel in default, or otherwise compel her to appear. And even if all of the above

fails, it is not clearly established that advising a family law respondent not to appear
amounts to a constitutional violation.
Finally, as to Claim IV, the Court doubts Forbes' claim is "plausible" in the first
place: he says Cervantes managed to obtain an overbroad protective order only by
lying that the children were "witnesses." But Forbes' own documentary evidence
shows the children were listed on the application for the protective order as
"victim(s)/witness(es)," (ECF No. 117-17), and there is a strong argument that the

children are victims, so most likely there was no lie. Even if the children were
ultimately not considered victims, they could in good faith be described as victims,
which would make any lie unintentional. It is not a constitutional violation to be
mistaken. Daniels v. Williams, 474 U.S. 327, 328 (1986). Even if there was a
deliberate lie, Forbes had a sufficient remedy: he was able to argue before the
criminal court that the children ought not to be included in the order, and the judge

ruled against him. (Hearing Transcript, ECF No. 117-21.)
The Court has treated Forbes' claims as procedural due process claims in the
immunity analysis. Although the Court was previously willing to entertain the idea
that Forbes had a substantive due process case, (Order 5, ECF No. 53), "substantive
due process protects against only the most egregious and outrageous government
action," Campos v. Cook Cnty., 932 F.3d 972, 975 (7th Cir. 2019). It is now clear that
none of the conduct here, even as alleged, rises to that level.
The Court also previously rejected any conspiracy claims under 42 U.S.C. § 1985.

(Order 5–6, ECF No. 53.) That analysis remains unchanged. And, for completeness'
sake, the Court observes that Forbes' allegations do not state a plausible claim under
the "conspiracy theory" of § 1983, either. There is no plausible allegation that Hensel,
herself a private individual, made a "concerted effort" with Cervantes to deprive
Forbes of his rights. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Hensel, after
all, did not need to use Cervantes's state authority to do what she is alleged to have
done: keeping the children away, ignoring the terms of a protective order, and dodging

service are all actions she was able to do herself. Put another way, the most offensive
allegation, from a constitutional perspective, is that Cervantes directed Hensel to
keep Forbes from his children. It is not similarly offensive to allege that Hensel took
direction.
Hensel, aside from the "conspiracy" theory, is a private individual not subject to
§ 1983 liability. Id.

III. Conclusion
Cervantes is entitled to qualified immunity on all Forbes' claims; even as alleged
Forbes' case does not implicate his constitutional rights. And Hensel, as a private
citizen, cannot violate those rights.
The Motion for Summary Judgment, (ECF No. 160), is granted on all claims.
Final judgment shall issue accordingly.
SO ORDERED.
2?
Date: 07/29/2024
J ES R. SWEENEY II, JUDGE
United States District Court
Southern District of Indiana
Distribution:
IAN FORBES
289249
NEW CASTLE — CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
P.O. Box E
NEW CASTLE, IN 47362
SYDNIE HENSEL
25859 State Road 37 North
Noblesville, IN 46060
Brandon E. Beeler
Office of Corporation Counsel
brandon.beeler@indy.gov
John P. Lowrey
City of Indianapolis
john.lowrey@indy.gov
Nathan K. Vining
Vininig Legal LLC
nathan.vining@gmail.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10647054. Public record. Not legal advice.