Rodriguez v. ATF UC 3749

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ENEDEO RODRIGUEZ, JR.,

Plaintiff,

v. CAUSE NO.: 3:18-CV-899-TLS-JEM

BAYNE BENNETT, AARON CAMPBELL,

KYLE LERCH, RANDY MOCKLER,

DETECTIVE STUTSMAN, SHELDON B.

SCOTT, STEVE SPADAFORA, and

WAYNE LESSNER,

Defendants.

OPINION AND ORDER

Enedeo Rodriguez, Jr., a prisoner without a lawyer, commenced the instant action on

November 5, 2018, by filing a Complaint [ECF No. 2] under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983 against

multiple local and federal law enforcement defendants, claiming violations of his Fourth and

Fourteenth Amendment rights for providing false information to a federal magistrate judge who

issued the warrant to search his residence for drug trafficking evidence, searching his business

without a warrant, and executing the searches in an unreasonable manner. The evidence obtained

from the residential search ultimately led to the Plaintiff’s arrest and felony convictions in

Indiana state court for dealing in methamphetamine and corrupt business influence.

On January 22, 2020, in accordance with 28 U.S.C. § 1915A, this Court screened the

Complaint and dismissed the federal law enforcement Defendants (the agents with the Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF)) among other Defendants and authorized the

Plaintiff to proceed against Defendant Nick McCloughen (an Indiana state law enforcement

defendant) in his individual capacity for money damages for conducting an unreasonable search

of the Plaintiff’s home on November 2, 2016, in violation of the Fourth Amendment. Jan. 22,

2020 Op. & Ord., ECF No. 21. The case proceeded through discovery and resulted in summary

judgment for Defendant McCloughen. Feb. 8, 2022 Op. & Ord., ECF No. 106.

The Plaintiff appealed, and the Seventh Circuit Court of Appeals issued two decisions,

affirming summary judgment as to Defendant McCloughen but otherwise vacating the judgment

and remanding the proceedings. See Rodriguez v. McCloughen, 49 F.4th 1120 (7th Cir. 2022);

Rodriguez v. McCloughen, No. 22-1259, 2022 WL 4534787 (7th Cir. Sept. 28, 2022). The

Seventh Circuit reversed the dismissal of the Plaintiff’s Fourth Amendment claims against

several federal, state, and county officers involved in a joint federal and state investigation into

the Plaintiff for violations of narcotics laws. See Rodriguez, 2022 WL 4534787, at *3–4.

In accordance with the Seventh Circuit’s decisions, on December 12, 2022, this Court

granted the Plaintiff leave to amend his complaint. Dec. 12, 2022 Op. & Ord., ECF No. 135. And

the Plaintiff filed an Amended Complaint [ECF No. 136] on January 6, 2023.

On April 6, 2023, pursuant to 28 U.S.C. § 1915A, the Court screened the Amended

Complaint and granted the Plaintiff leave to proceed against: (1) Defendant Wayne Lessner

(ATF agent) in his individual capacity for compensatory and punitive damages for his claim that

Lessner falsified the search warrant application and participated in the search of his home in

violation of the Fourth Amendment; (2) Defendants Lt. Steve Spadafora and Officer Sheldon

Scott in their individual capacities for compensatory and punitive damages for his claim that they

participated in the search of his home and in his arrest in violation of the Fourth Amendment;

and (3) Defendants Detective Stutsman, Randy Mockler, Indiana State Police Officer Aaron

Campbell, and ATF Agents Bayne Bennett and Kyle Lerch in their individual capacities for

compensatory and punitive damages for his claim that they conducted a warrantless search of his

business in violation of the Fourth Amendment. Apr. 6, 2023 Op. & Ord., ECF No. 141.

This matter is now before the Court on: (1) a Joint Motion to Dismiss [ECF No. 187]

filed by Defendants Bayne Bennett, Kyle Lerch, and Wayne Lessner; (2) Plaintiff’s Motion to

Object to Magistrate’s Opinion and Order of Dkt. 194 [ECF No. 200]; (3) Plaintiff’s first

Verified Motion to Add Bayne Bennett as the Unknown Defendant Who Threw a Flash Bang

Device in the Presence of a Child [ECF No. 291]; and (4) Plaintiff’s second Verified Motion to

Add Bayne Bennett as the Unknown Defendant Who Threw a Flash Bang Device in the Presence

of a Child [ECF No. 329]. These are briefed and ripe for ruling.

LIFTING THE STAY OF PROCEEDINGS

On May 20, 2024, this case was stayed and statistically closed for the Court to fully

review and justly rule on what was then sixteen pending motions. May 20, 2024 Ord., ECF No.

376. On January 30, 2025, the case was reassigned to the undersigned. Jan. 30, 2025 Ord., ECF

No. 394. The Court has fully reviewed this case. Accordingly, the Court hereby LIFTS the stay

of these proceedings.

To the extent the Plaintiff and non-parties Maria Rodriguez and R.R. filed various

motions while this case was stayed, see ECF Nos. 401, 404, 405, 409, 410, 411, 412, 414, 416,

423, the Court will set deadlines in the Conclusion of this Opinion and Order for the Defendants

to file a response, if any, to each of the motions and for the Plaintiff, Maria Rodriguez, and R.R.

to file a reply, if any, in support of the motions they each filed.

REVIEW OF DECISION BY MAGISTRATE JUDGE JOHN E. MARTIN

Pursuant to Civil Rule of Procedure 72(a), a party may file an objection to a magistrate

judge’s decision on a non-dispositive pretrial matter within fourteen days. Fed. R. Civ. P. 72(a).

“The district judge in the case must consider timely objections and modify or set aside any part

of the order that is clearly erroneous or is contrary to law.” Weeks v. Samsung Heavy Indus. Co.,

126 F.3d 926, 943 (7th Cir. 1997); see also 28 U.S.C. § 636(b)(1)(A). “The clear error standard

means that the district court can overturn the magistrate judge’s ruling only if the district court is

left with the definite and firm conviction that a mistake has been made.” Weeks, 126 F.3d at 943.

The issue before this Court pertains to whether Magistrate Judge John E. Martin’s Order

[ECF No. 194] on the Plaintiff’s Verified Motion to Strike Defendant’s Affirmative Defenses

[ECF No. 167], second Verified Motion to Strike Defendant’s Affirmative Defenses [ECF No.

169], and third Verified Motion to Strike Defendant’s Affirmative Defenses [ECF No. 184] was

clearly erroneous or contrary to law. The Plaintiff argues that Judge Martin erred by:

(1) allowing the Defendants to amend their defenses; (2) not addressing the arguments about the

affirmative defenses that the Defendants withdrew; and (3) allowing the Defendants to replead

affirmative defenses that were withdrawn, specifically Affirmative Defense 6 by Defendant

Spadafora.

As to the first two arguments, the Plaintiff provides no explanation for how allowing the

Defendants to amend their defenses or not addressing the arguments about the affirmative

defenses that the Defendants withdrew amounts to a clear error or is contrary to law. Nor does

the Plaintiff cite any supporting legal authority. There is no clear error in allowing the

Defendants to amend their defenses or in not addressing the affirmative defenses that the

Defendants withdrew.

As to the third argument about Defendant Spadafora’s Affirmative Defense 6, the

Plaintiff misconstrues Judge Martin’s decision. Judge Martin stated, “Spadafora and Scott

withdrew their Affirmative Defenses 3, the absolute and sovereign immunity claims asserted in

6, and 10.” Sept. 7, 2023 Op. & Ord. 4, ECF No. 194. He also stated, “Spadafora and Scott’s

Affirmative Defense 6 asserts qualified, absolute, and/or sovereign immunity. Spadafora and

Scott withdrew their defenses of absolute and sovereign immunity.” Id. at 6. He concluded that

the “Defendants have sufficiently pleaded an affirmative defense of qualified immunity.” Id.

Judge Martin ultimately held, “The Court grants Defendants Spadafora and Scott leave to file

amended Affirmative Defenses solely for the purpose of repleading affirmative defenses 5, 6, 7,

11, 12, 13, 14, and 15 and amending affirmative defenses 2, 4, 8, and 9 . . . .” Id. at 1. Because

Spadafora did not withdraw his Affirmative Defense 6 as to qualified immunity and Judge

Martin determined that he sufficiently pled qualified immunity, there is no clear error in Judge

Martin granting Defendant Spadafora leave to replead Affirmative Defense 6.

Accordingly, the Court overrules the Plaintiff’s objections. To the extent the Plaintiff

requests that “a Chief Judge could step in and oversee previous decisions made by the

Magistrate,” the Court denies the request because there is no pertinent legal authority that

allows the Court to accommodate such a request. The pertinent legal authorities, Federal Rule

of Civil Procedure 72(a) and 28 U.S.C. § 636(b), provide that any objection to the merits of

Judge Martin’s rulings must be filed within fourteen days of the ruling, which the Plaintiff has

done here.

MOTION TO DISMISS

Defendant Wayne Lessner seeks to dismiss the claims against him for falsifying the

search warrant application and participating in the search of the Plaintiff’s home in violation of

the Fourth Amendment, and Defendants Bennett and Lerch seek to dismiss the claim against

them for a warrantless search of the Plaintiff’s business in violation of the Fourth Amendment.

A. Legal Standard

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

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

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

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

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

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

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

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

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

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

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

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

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

“A motion under Rule 12(b)(6) can be based only on the complaint itself, documents

attached to the complaint, documents that are critical to the complaint and referred to in it, and

information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743,

745 n.1 (7th Cir. 2012) (citing Fed. R. Civ. P. 10(c); Papasan v. Allain, 478 U.S. 265, 268 n. 1

(1986); 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002); Wright v. Associated

Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994)). Pursuant to Federal Rule of Evidence 201, the

Court takes judicial notice of the October 31, 2016 affidavit that Defendant Lessner filed with an

application for a warrant for the search of the Plaintiff’s home. The October 31, 2016 affidavit is

critical and referred to in the Amended Complaint and was attached by the parties to their

briefing on the instant Motion to Dismiss, see Pl. Ex. 16, ECF No. 229-1, pp. 83–103; Def. Att.

1, ECF No. 188-1.

The Court also bases this ruling on the September 1, 2016 affidavit that Defendant

Lessner filed with an application for a search warrant for information about the location of the

cellular telephone assigned call number (260) 431-9552, which is relied on in the Amended

Complaint to support the Plaintiff’s allegation that Defendant Lessner fabricated the information

from the first CS and is attached to the Plaintiff’s brief in response to the Defendants’ Joint

Motion to Dismiss, see Pl. Ex. 5, ECF No. 229-1, pp. 26–42. To the extent the Plaintiff also

references his Exhibit 4 in the context of his allegation that Defendant Lessner fabricated the

information in the affidavit from the first CS, Exhibit 4 appears to be the same affidavit as

Exhibit 5 except it is dated August 29, 2016, is not signed by Defendant Lessner or the federal

magistrate judge, and does not appear to have been filed in that case. See Pl. Ex. 4, ECF No. 229-

1, pp. 10–25. Because the Plaintiff does not allege a difference between Exhibit 4 and Exhibit 5,

Exhibit 4 was not referenced in the Amended Complaint, and Exhibit 4 is not public information,

the Court does not consider Exhibit 4 in ruling on the Defendants’ Joint Motion to Dismiss.

Additionally, “a party opposing a Rule 12(b)(6) motion may submit materials outside the

pleadings to illustrate the facts the party expects to be able to prove.” Geinosky, 675 F.3d at 745

n.1 (citing Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004); Early v. Bankers Life

and Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992); Roe v. Bridgestone Corp., 492 F. Supp. 2d 988,

1007 (S.D. Ind. 2007)). However, here the Plaintiff has attached additional documents to his

brief in response to the Defendants’ Joint Motion to Dismiss that do not support his factual

allegations raised in the Amended Complaint and his response brief. See ECF No. 229-1. Thus,

the Court excludes those documents (other than Pl. Exs. 5 and 16, as discussed above) and,

instead, relies on the allegations in the Amended Complaint and the arguments in the Plaintiff’s

response brief. See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (“Under Rule 12(b),

when this happens the court must either convert the 12(b)(6) motion into a motion for summary

judgment under Rule 56 and proceed in accordance with the latter rule, or exclude the documents

attached to the motion to dismiss and continue under Rule 12.”).

B. Fourth Amendment Violation Claim Against Defendant Lessner—False Affidavit

Defendant Lessner argues that the Plaintiff’s Fourth Amendment claim against him based

on his purported submission of a false affidavit should be dismissed. Because Defendant Lessner

is a federal agent, the Plaintiff’s claim arises under Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971), rather than under 42 U.S.C. § 1983. Case v. Milewski, 327 F.3d 564, 567 (7th

Cir. 2003) (“[A]n action brought pursuant to § 1983 cannot lie against federal officers acting

under color of federal law[.]”).

Specifically, in Bivens, the Supreme Court recognized a cause of action where the

plaintiff’s complaint was based on

an arrest and search carried out on the morning of November 26, 1965. [Plaintiff’s]

complaint alleged that on that day [defendants], agents of the Federal Bureau of

Narcotics acting under claim of federal authority, entered his apartment and

arrested him for alleged narcotics violations. The agents manacled [plaintiff] in

front of his wife and children, and threatened to arrest the entire family. They

searched the apartment from stem to stern. Thereafter, [plaintiff] was taken to the

federal courthouse in Brooklyn, where he was interrogated, booked, and subjected

to a visual strip search.

On July 7, 1967, [plaintiff] brought suit in Federal District Court. In addition to the

allegations above, his complaint asserted that the arrest and search were effected

without a warrant, and that unreasonable force was employed in making the arrest;

fairly read, it alleges as well that the arrest was made without probable cause.

403 U.S. at 389. The Supreme Court held: “Having concluded that [plaintiff’s] complaint states a

cause of action under the Fourth Amendment, . . . [plaintiff] is entitled to recover money

damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.”

Id. at 397.

While circuit and district courts have applied Bivens to claims against federal officials for

constitutional violations broadly, the Supreme Court has taken a narrower approach:

Since Bivens was decided in 1971, circuit and district courts have recognized Bivens

as a foundation for damages claims against individual federal officials for a wide

range of alleged constitutional violations. The case law governing those claims has

often paralleled the law under 42 U.S.C. § 1983 for similar claims against state and

local government officials, including defenses of absolute and qualified immunity

and standards for available damages.

In recent years, however, the Supreme Court has been adopting a narrower view of

Bivens than has prevailed in the lower courts.

Greenpoint Tactical Income Fund LLC v. Pettigrew, 38 F.4th 555, 561 (7th Cir. 2022).

In fact, the Supreme Court has recognized only three types of Bivens claims: (1) a search

and arrest of a private citizen without probable cause in violation of the Fourth Amendment in

Bivens; (2) a claim against a federal employer for gender discrimination under the Due Process

Clause of the Fifth Amendment in Davis v. Passman, 442 U.S. 228 (1979); and (3) a prisoner’s

claim of deliberate indifference to medical needs in violation of the Eighth Amendment in

Carlson v. Green, 446 U.S. 14 (1980). See Greenpoint, 38 F.4th at 562.

But, in recent years, the Supreme Court has questioned the continued viability of these

claims and has strongly cautioned federal courts against recognizing new types of claims. See

Egbert v. Boule, 596 U.S. 482, 502 (2022) (“[I]f we were called to decide Bivens today, we

would decline to discover any implied causes of action in the Constitution.”); Hernandez v.

Mesa, 589 U.S. 93, 101–02 (2020) (“[F]or almost 40 years, we have consistently rebuffed

requests to add to the claims allowed under Bivens.”); Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)

(“[E]xpanding the Bivens remedy is now a ‘disfavored’ judicial activity.” (citation omitted)).

Under the current guidance from the Supreme Court, courts must ask if the case presents a new

Bivens context and, if it does, whether special factors counsel hesitation in extending Bivens. “If

the case is different in a meaningful way from previous Bivens cases decided by this Court, then

the context is new.” Ziglar, 582 U.S. at 139.

In this case, Defendant Lessner argues that the dismissal of the Plaintiff’s Fourth

Amendment claim alleging that he submitted a false affidavit in support of the search warrant for

the Plaintiff’s home “is proper because there is no implied cause of action available under Bivens

for claims of this type.” Def. Br. 7, ECF No. 188. He asserts:

The Seventh Circuit’s decision in Greenpoint Tactical Income Fund LLC v.

Pettigrew, 38 F.4th 555 (7th Cir. 2022), does not change this conclusion. There, the

Seventh Circuit reviewed a Wisconsin District Court judge’s decision, which had

concluded that allegations that a federal agent knowingly and intentionally made

false statements in the affidavit filed in support of a search warrant presented a new

Bivens context and therefore could not proceed. Id. at 560; see Greenpoint Tactical

Income Fund LLC, et al v. Alan Pettigrew, et al, No. 21-1411, 2021 WL 461560

(Feb. 9, 2021 E.D. Wis.). The court ultimately affirmed the judgment on the

grounds that the officers were entitled to qualified immunity and avoided ruling on

the Bivens question at all.

Id. 12–13.

In Greenpoint, the Seventh Circuit noted, “In the wake of Abbasi’s new limits on Bivens

claims, some courts have taken a fresh look at the precedents that have authorized Bivens claims

in this context of alleged false and misleading warrant applications, choosing instead to limit

Bivens to cases of warrantless searches and seizures.” 38 F.4th at 563 (citing cases). The Seventh

Circuit also acknowledged that, on the other hand, “other courts (or panels) have taken the view

that Abbasi does not require them to disregard earlier Bivens precedents as long as they were not

inconsistent with Abbasi.” Id. (citing cases). As to the facts before the Seventh Circuit in

Greenpoint, that court explained:

Plaintiffs allege here the sort of Fourth Amendment violation familiar to federal

courts and close to the heart of Bivens. As a result, we are not persuaded that Abbasi

or Hernández overturned the line of cases recognizing Fourth Amendment Bivens

claims based on fabricated warrant affidavits and/or grand jury testimony. The

Supreme Court previously recognized that a search conducted with a warrant that

lacked particularity was equivalent to a warrantless search. . . .

Also, plaintiffs’ allegations are similar to the cases cited above applying Bivens as

a remedy against federal actors who procured warrants based on false and

misleading affidavits. Adjudication of plaintiffs’ accusations here does not require

a novel intrusion into law enforcement operations. Such an inquiry is common in

criminal cases where an accused defendant seeks to suppress evidence because

statements in an affidavit supporting a warrant were deliberately or recklessly false,

and in § 1983 actions against state and local law enforcement officials.

Id. at 564–65.

However, the Greenpoint court ultimately decided to dismiss the case against the federal

agent on the issue of qualified immunity “without wrestling to the ground the effects of Abbasi.”

Id. at 565. Thus, other than in dicta in Greenpoint, the Seventh Circuit has not addressed

Defendant Lessner’s argument that there is no cause of action for a Fourth Amendment violation

claim based on an allegation that the officer submitted a false affidavit with a search warrant

application. See Rodriguez, 2022 WL 4534787, at *2 (“But since Ziglar v. Abbasi, 137 S. Ct.

1843 (2017), limited the use of this theory, we have kept open the question whether federal

employees may be sued under Bivens for deliberately misleading a judge to obtain a warrant.”

(citing Greenpoint, 38 F.4th at 563–64)). Therefore, as in Greenpoint, this Court will decide the

issue of the dismissal of the Fourth Amendment violation claim against Defendant Lessner on

the ground of qualified immunity, assuming for the purposes of the analysis below, but not

deciding, that the Plaintiff’s claim may go forward under Bivens.

As in Greenpoint, the next argument that Defendant Lessner presents in support of

dismissing the Plaintiff’s Fourth Amendment violation claim against him—for the submission of

a false affidavit with the warrant application for the search of the Plaintiff’s home—is that he is

entitled to qualified immunity. The Court agrees.

“Qualified immunity protects an officer from liability if a reasonable officer could have

believed that the action taken was lawful, in light of clearly established law and the information

the officer possessed at the time.” Phillips v. Cmty. Ins., 678 F.3d 513, 527–28 (7th Cir. 2012)

(citation omitted). “When evaluating a defense of qualified immunity, courts must consider (1)

whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional

right and (2) whether the right at issue was clearly established at the time of defendant’s alleged

misconduct.” Greenpoint, 38 F.4th at 567 (cleaned up).

The Fourth Amendment guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. “It is clearly established that a warrant request violates the Fourth Amendment if the

requesting officer knowingly, intentionally, or with reckless disregard for the truth, makes false

statements in requesting the warrant and the false statements were necessary to the determination

that a warrant should issue.” Edwards v. Jolliff-Blake, 907 F.3d 1052, 1061 (7th Cir. 2018)

(cleaned up). It is further clearly established that “[t]he Fourth Amendment is [] violated when an

officer ‘intentionally or recklessly withhold[s] material information from a warrant application.’”

Greenpoint, 38 F.4th at 567–68 (quoting Whitlock v. Brown, 596 F.3d 406, 408 (7th Cir. 2010)).

“When evaluating whether an officer’s alleged lies and omissions are material to the probable

cause determination, [the courts] eliminate the alleged false statements, incorporate any allegedly

omitted facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would establish

probable cause.” Id. at 568. This means that “[o]nly material omissions [or false statements]—

that is, those that would affect the probable cause determination—are relevant.” United States v.

Maxwell, — F.4th —, —, No. 23-2910, 2025 WL 1943837, at *5 (7th Cir. July 16, 2025). And if

an omission or false statement is immaterial, then “there [is] no Fourth Amendment violation.”

Hart v. Mannina, 798 F.3d 578, 592 (7th Cir. 2015).

In this case, the Plaintiff alleges that Defendant Lessner submitted a false affidavit on

October 31, 2016, with the application for a warrant for the search of the Plaintiff’s home. See

Pl. Ex. 16, ECF No. 229-1, pp. 83–103; Def. Att. 1, ECF No. 188-1. In the screening order, the

Court explained, “[The Plaintiff] has not submitted with his complaint the search warrant

applications in question, so the Court cannot determine whether probable cause can be

maintained even if the alleged lies are stricken, and the Court must accept his allegations at their

face value.” Apr. 6, 2023 Op. & Ord. 8, ECF No. 141. Later, Defendant Lessner and the Plaintiff

attached the affidavit to their briefing on the instant Motion to Dismiss.

As to materiality, Defendant Lessner argues:

Even if all of the allegedly false information is stricken and alleged material

omissions included, there were sufficient facts to establish probable cause. The

affidavit sets forth the basis for concluding that the residence in question was

Plaintiff’s. [Def. Att. 1] at 10, ¶¶ 7–8[, ECF No. 188-1]. A confidential source was

debriefed and provided information indicating that Plaintiff was supplying multiple

persons with methamphetamine. Id. at 11–12, ¶¶ 9–11. It describes Plaintiff’s

activities on August 23, 2016, before and after an arranged methamphetamine

purchase between Lessner and Plaintiff’s associate (id. at 14–17, ¶¶ 19–29);

describes Plaintiff’s activities on September 10, 2016 (id. at 17, ¶¶ 30–32); and

describes Plaintiff’s activities on October 28, 2016 before and after another

controlled meth[amph]etamine purchase by Lessner from Plaintiff’s associate (id.

at 18–23, ¶¶ 33–56).

Def. Br. 21, ECF No. 188. In his brief in response to the Defendants’ motion to dismiss, the

Plaintiff attempts to provide reasons why some of the purported lies and omissions in Defendant

Lessner’s affidavit are material to the probable cause determination; the Court addresses each

purported reason in turn.

1. Basis for Identifying the Plaintiff’s Home Address

The affidavit explained that the location to be searched was the premises at 71395 County

Road 25, New Paris, Indiana 46553. Pl. Ex. 16, ¶ 3, ECF No. 229-1, p. 27; Def. Att. 1, ¶ 3, ECF

No. 188-1. Defendant Lessner asserted that he, other Special Agents with the ATF, and law

enforcement officers with the Elkhart County Interdiction and Covert Enforcement Unit (EC-

ICE) had observed the Plaintiff at that location. Id. ¶ 6. Additionally, a federal search warrant for

global positioning (GPS) data and cellular tower information executed on a phone known to be

possessed by the Plaintiff with the phone number (260) 431-9552 confirmed that the Plaintiff

stays at the addresses to be searched. Id. ¶ 7. The Plaintiff was on supervised release with the

South Bend, Indiana, United States Federal Probation Service for a prior narcotics felony, and

the office confirmed that the address to be searched is the Plaintiff’s primary residence of record.

Id. ¶ 8.

The Plaintiff does not raise an allegation of a false or omitted statement related to these

statements about the Plaintiff’s address in Defendant Lessner’s affidavit. Thus, the Court need

not address them.

2. Confidential Sources

Defendant Lessner’s affidavit also included statements from a first confidential source

(CS) and a second CS. According to the affidavit, as to the first CS, Defendant Lessner was

aware of a debriefing of an EC-ICE documented CS by EC-ICE investigators that occurred in

2016 about the Plaintiff and alleged narcotics trafficking. Id. ¶ 9. Specifically, during the debrief,

the CS referenced a person whom the CS knew as Casper advising that Casper drives a black

Dodge Challenger and a white Yukon Denali and owns R&R Auto Sales in Elkhart, Indiana. Id.

The affidavit noted that Defendant Lessner knew through the ongoing investigation into the

Plaintiff that Casper was the Plaintiff and that he also knew the Plaintiff to previously have a

state of Indiana license plate that read CASPER. Id.

The affidavit reported that the first CS stated that the Plaintiff supplies multiple persons

with methamphetamine, sells an ounce for $250.00, receives methamphetamine from Mexico

that comes into the United States in liquid form, had possessed and sold green colored

methamphetamine at one time, and maintains significant quantities of U.S. currency at his New

Paris, Indiana residence. Id. ¶¶ 9–10. The affidavit reported that the CS also stated that the CS

had taken a Hispanic male associate to obtain methamphetamine from the Plaintiff at R&R Auto

Sales. Id. ¶ 10. The affidavit noted that Defendant Lessner knew that R&R Auto is recorded with

the Indiana Secretary of State as R N R Auto Sales Inc., business ID: 2016032200103, and the

incorporator of the business is listed as the Plaintiff. Id.

As to the second CS, the affidavit noted that Defendant Lessner was aware of an

additional debriefing of an EC-ICE documented CS by EC-ICE investigators that occurred on

June 13, 2016, about the Plaintiff and his alleged relation to narcotics trafficking. Id. ¶ 11.

According to the affidavit, the CS explained to EC-ICE Investigators that a close acquaintance

was working at a business located at the corner of Sterling Avenue and East Hively Avenue in

Elkhart, Indiana, called R&R Auto Sale and that the owners were the Plaintiff and Maria

Rodriguez. Id. The CS also explained that the Plaintiff was arrested in 2007 for trafficking 1,000

pounds of marijuana from Texas to Indiana and was prosecuted and sentenced federally, was on

parole, had opened a used car lot, and was trafficking narcotics in the vehicles associated with

the business. Id.

The affidavit reported that the second CS stated that Maria Rodriguez told the

acquaintance that she gets high and was bringing a truck back from Tennessee and

Massachusetts. Id. The affidavit also reported that the CS stated that the acquaintance informed

them that when the vehicles get back to R&R Auto, “they” immediately start removing the

dashboards and consoles from the vehicles and that the acquaintance has seen them removing

thousands of dollars in cash from behind a stereo in the vehicle. Id.

To allege a plausible claim for a Fourth Amendment violation against an officer based on

his purported submission of a false affidavit with inaccurate or false information from a

confidential source (CS), it is not enough for a plaintiff to plausibly allege that a CS lied or

provided inaccurate information to the officer taking the CS’s statement and that the officer that

submitted the affidavit then included those lies or inaccuracies in the affidavit. See United States

v. McAllister, 18 F.3d 1412, 1417 (7th Cir. 1994). Instead, a plaintiff must also plausibly allege

that the officer submitting the affidavit perjured himself or acted recklessly because he seriously

doubted or had obvious reason to doubt the truth or accuracy of the information from the CS. See

United States v. Johnson, 580 F.3d 666, 670 (7th Cir. 2009) (citations omitted). Of course, the

plaintiff must also plausibly allege that, when the purported inaccurate or false information from

the CS is deleted from the affidavit, probable cause would not be established. See Greenpoint, 38

F.4th at 568. Thus, it is necessary, but not sufficient, for a plaintiff to plausibly allege an

inaccuracy in the information that an officer included in an affidavit from a CS. See id.

For example, in Johnson:

On October 8, 2007, a confidential informant told Officer Chad Batterham of the

Peoria, Illinois, Police Department that Duricco Johnson was selling drugs from a

tan, two-story apartment located at 1819 North Lehman Road, # 16. The informant

described Johnson as a black male in his late twenties, approximately 5’8” tall and

225 pounds with short black hair. The informant claimed to have been in the

apartment at least three times in the past thirty days, most recently within seventy-

two hours, and stated that Johnson regularly sold crack from that address. On each

occasion, the informant saw an off-white, rock-like substance in Johnson’s

possession. The informant corroborated his description of Johnson by identifying

him from a six-photograph spread.

The next day, Officer Batterham appeared in court and signed a complaint detailing

this information. He also stated that the same informant had previously provided

police with reliable information that had led to the execution of twenty-three search

warrants, forty-four arrests, and the seizure of large quantities of drugs and

firearms. Finally, Batterham explained that he had checked Johnson’s criminal

record, which revealed six prior drug arrests.

Based on Batterham’s complaint, police received a search warrant for the

apartment, which they executed on October 10. In a kitchen cabinet they found two

plastic bags containing 7.9 grams of crack, two loaded handguns, and a box of

ammunition. Police also found Johnson on the second floor of the apartment and

took him into custody.

. . .

Johnson argues that Officer Batterham’s complaint contained false statements,

which he made intentionally or with reckless disregard for the truth. Specifically,

Johnson claims that the informant’s allegations were false because no one other

than Johnson, Brown, and their young children had been in the apartment in the

thirty days before the warrant issued. Johnson also notes that the informant

inaccurately described both him and the premises: Johnson was sixty-nine pounds

heavier than the informant described, and the apartment was pink and grey rather

than tan.

580 F.3d at 668–69, 670. The court found that Johnson’s identification of these three

inaccuracies was necessary but not sufficient to establish his assertion that Officer Batterham

included “false statements, which he made intentionally or with reckless disregard for the truth”

because Johnson did not offer evidence that Officer Batterham had reason to question the

accuracy of the information. Id. at 670.1

In this case, as to the Plaintiff’s allegation about false information that a CS provided to

Defendant Lessner and that Defendant Lessner included in the affidavit, Defendant Lessner

argues that “[the Plaintiff] does not allege that statements in the affidavit regarding that source

are false or misrepresented.” Def. Br. 21, ECF No. 188. In response, the Plaintiff contends that

the fact that the CSs “never explained how they knew about the information they provided or

Plaintiff’s activities . . . is material because . . . it is known that the Confidential Sources here,

were not established to be reliable, credible nor any of their criminal history, or age was ever

1 The Court also considers a case cited by the Plaintiff—Jacobs v. City of Chicago, 215 F.3d 758, 768

(7th Cir. 2000). Jacobs involved a “warrant . . . [that] authorized the search of a single-family residence

located at 15138 Lincoln Avenue in Harvey, Illinois,” id. at 768, where the information on that address

came from a confidential informant, id. at 764. However, “the building located at [that] address [was] a

multi-unit building consisting of three separate residential apartments.” Id. at 768. As a result, the Jacobs

court found that “on its face, the warrant [did] not describe the place to be searched with particularity.” Id.

That court nevertheless held “that although the warrant turned out to be overbroad because it did not

describe with particularity the place to be searched and encompassed a separate dwelling unit, the

plaintiffs’ apartment, for which there was no probable cause to authorize a search, it was valid at the time

it was issued based on the information the officers presented to the magistrate.” Id. In so holding, the

court noted that “[t]he plaintiffs [did] not allege that the officers seeking the warrant concealed

information from the issuing magistrate that they were under a duty to disclose.” Id.

The Jacobs court explained, in footnote 4, cited by the Plaintiff, that “[f]rom the allegations in the

complaint, it appears that simple investigation procedures, such as contacting the gas, electric, or

telephone company, would have revealed that the residence at 15138 Lincoln Avenue is a multi-unit

apartment building” and noted the obligation of officers to take reasonable steps to confirm information

from a confidential informant. Id. at 768 n.4. Thus, an additional allegation that the officer failed to verify

the description of the address that the confidential informant provided would correspond with the required

allegation of the officer’s mental state, which would be recklessness. See United States v. Reed, 726 F.2d

339, 342 (7th Cir. 1984) (“Appellant also argues that if an informant existed and gave police false

information, Detective Smith included ‘reckless’ falsifications in the affidavit because he did not verify

the accuracy of the informant’s statements.”); Johnson, 580 F.3d at 670. However, an allegation that an

officer failed to verify the description of the address without the allegation that the confidential informant

provided inaccurate information about the address would not suffice to plausibly allege a claim for a

Fourth Amendment violation based on an officer’s submission of a false affidavit because there would be

no requisite allegation of false or inaccurate information from the CS included in the affidavit. See

Johnson, 580 F.3d at 670.

presented.” Pl. Resp. Br. 19, ECF No. 229. However, this contention does not plausibly allege

that Defendant Lessner included inaccurate information or a lie from a CS in his affidavit.

Instead, it makes an assertion about what the CS did not explain, which is apparent from the

information from the CS contained in Defendant Lessner’s affidavit that the federal magistrate

judge had before him for the probable cause determination.

To the extent the Plaintiff meant to also assert that the CSs’ ages, criminal history, and

motive were omitted from the affidavit, the Plaintiff does not plausibly allege that Defendant

Lessner knew or should have known the CSs’ age or motive at the time of the affidavit nor does

the Plaintiff identify the criminal histories that should have been included. Also, the Plaintiff

does not provide a reason why including the CSs’ age, criminal history, or motive would have a

made a difference in the federal magistrate judge’s decision to issue the warrant in light of the

other information that Defendant Lessner included in the affidavit. Thus, these assertions are

insufficient to plausibly state a Fourth Amendment violation. See Hart, 798 F.3d at 592.

To the extent the Plaintiff raises various other allegations and assertions connected to the

CSs, the Court has reviewed them all.2 However, most do not identify inaccurate information

2 For example, most of the Plaintiff’s allegations appear to be attempts at establishing Defendant

Lessner’s mental state of recklessness without first plausibly alleging false or inaccurate information from

a CS included in or omitted from the affidavit. In the Amended Complaint, these allegations include:

“[t]hat in the course of Lessner’s duties, he never met with this Confidential Source or the other, rather he

obtained any and all information from the Elkhart County I.C.E. Unit”; “this information was not

personal knowledge, nor first hand or made with the intentions that the personal actually knew

Rodriguez”; “it was based on ‘hearsay within hearsay’”; and “[t]his information did not contain reliable

information neither did the affiant establish the credibility of the source.” Am. Compl. ¶¶ 20–21, ECF No.

136. And, in the Plaintiff’s brief in response to the Defendants’ motion to dismiss, these assertions

include: “the statement [in paragraphs 9–10] provides no date or evidence to substantiate any of [the]

allegations;” CS “does not state single fact of how she knew Plaintiff or information”; an “allegation []

was never corroborated or established”; there is “no evidence or detailed information to substantiate CS

account” of the “Plaintiff supplying multiple people and list price amount”; “presenting such allegations

without corroborating” “[t]he . . . accusation [was] . . . without any details or knowledge of [the

Plaintiff]”; “Lessner solely corroborated that CASPER is Plaintiff by his own undescribed account and

that the place of business belonged to Plaintiff”; CS “provides no details or evidence to substantiate any

of his/her allegations;” “the . . . allegation of Plaintiff trafficking . . . was never established or

from a CS that Defendant Lessner included in the affidavit nor do most identify an omission

related to the credibility of at least one of the CSs. For the allegations and assertions that did, the

Plaintiff does not develop any of these to explain a reason why including the inaccurate or

omitted information would have made a difference in the federal magistrate judge’s decision to

issue the search warrant.

Nevertheless, the Court will next address three of the Plaintiff’s arguments that are

connected to the CSs: (1) Defendant Lessner fabricated the information from the CSs; (2) the

Plaintiff denies the allegations made against him by the CSs; and (3) Defendant Lessner falsely

stated that the Plaintiff had an Indiana state license plate that read CASPER.

First, in the Amended Complaint, the Plaintiff makes allegations about a CS and a

September 28, 2016 report:

On September 28, 2016, an investigative report was made which listed that Elkhart

County I.C.E. Unit received information from a Confidential Source . . . . This

information was used to prepare an affidavit by Lessner in both the September and

August Affidavit to search [my] phone, which lead to the search of his home.

However, the affidavit was dated before the I.C.E. Unit retrieved the statements

corroborated”; information from the CS does not “meet the minimum requirement to establish probable

cause determination concerning informant’s credibility”; “[b]y CS stating that Plaintiff was trafficking

narcotics in the vehicles associated to the business but does not provide any further details on how she

would know, it seems that more corroborating information is required”; “personal information, provided

of Plaintiff, was about his previous Federal Charge, which again is public information”; “Lessner uses

Plaintiff’s criminal history to corroborate the CS’s account . . . [, but] it seems that more corroborating

information is required”; “there was no evidence . . . that Lessner or investigators independently

corroborated . . . Confidential Sources’ story before seeking a search warrant”; “Confidential Source here,

never testified nor went with either Lessner or investigators to Plaintiff’s home, they did not buy drugs

there . . . or ever went to Plaintiff’s home to see him selling”; “Confidential Sources here, never explained

how they knew about the information they provided or Plaintiff’s activities”; “[b]ased upon the alleged

statements by Confidential Sources, it is known that the Confidential Sources here, were not established

to be reliable, credible”; “it was hearsay within hearsay with no personal nor first-hand knowledge

provided”; and “such assertion is hearsay within hearsay and no investigator ever corroborated such

claim.” Pl. Resp. Br. 12–19, 29, ECF No. 229. To the extent the Plaintiff cites Taylor v. Hughes, 26 F.4th

419, 427 (7th Cir. 2022), for the proposition that a warrant procured by lies or with reckless disregard for

the truth is void, Pl. Resp. Br. 23, ECF No. 229, Taylor does not stand for that proposition. Instead, the

Taylor court explained, “To earn a trial on such a claim, a § 1983 plaintiff must bring forth enough

evidence to permit a reasonable jury to conclude that the defendant officer made intentional or reckless

misrepresentations of fact that were necessary to the finding of probable cause.” 26 F.4th at 427 (citation

omitted).

from a Confidential Source (September 1, 2016), which only makes it impossible

for Lessner (the affiant) to have submitted the affidavit accordingly, and such

affidavit could not have been turned in until after the statement was acquired, which

was September 28, 2016, according to the dates on the documents provided by the

Elkhart County I.C.E. Unit.

Am. Compl. ¶ 19, ECF No. 136. In his response brief, the Plaintiff explains that these allegations

mean “[t]he dates in which the Confidential Source made her statement was previously reported

on September 28, 2016, according to ICE Unit investigators,[] which Lessner by this time

submitted the contents in his [other] Affidavits, dated August 29 and September 01, 2016.” Pl.

Resp. Br. 12, ECF No. 229 (cleaned up).

From these allegations, it appears the Plaintiff is alleging that Defendant Lessner

fabricated the information from the first CS because the September 28, 2016 report listing the CS

is dated after an affidavit that Defendant Lessner submitted with another search warrant.

However, the Plaintiff attaches to his response brief Defendant Lessner’s August 29, 2016

affidavit and the September 1, 2016 affidavit, though the Plaintiff only referred to the September

1, 2016 affidavit in the Amended Complaint. The Court bases its Order on the September 1,

2016 affidavit because, as stated above, the Plaintiff does not allege a difference in this context

between the August 29, 2016 affidavit (Pl. Ex. 4) and the September 1, 2016 affidavit (Pl. Ex. 5),

which appear to be the same or very similar, the August 29, 2016 affidavit was not referenced in

the Amended Complaint, and the August 29, 2016 affidavit is not public information.

Defendant Lessner’s September 1, 2016 affidavit reported that he was “aware of a recent

debriefing of an EC-ICE documented Confidential Source (CS) by EC-ICE Investigators” along

with what he was told the CS said during the debrief. Pl. Ex. 5, ¶ 10, ECF No. 229-1, p. 30. The

Plaintiff does not address the fact of the debrief or call into question the debrief in any way. In

light of these statements that Defendant Lessner relied on the debrief of the CS, the mere fact of

the existence of the later September 28, 2016 EC-ICE investigative report listing the CS does not

indicate that it was impossible for Defendant Lessner to learn the information about the CS from

somewhere else—such as the debrief, as the Plaintiff contends. Nor does the fact of the

September 28, 2016 investigative report contradict Defendant Lessner’s statement that he learned

the information about the CS from the debrief. The Plaintiff has not offered any argument to

question Defendant Lessner’s reliance on the debrief of the CS. Thus, even giving the Plaintiff

the benefit of his factual allegations about the September 28, 2016 investigative report and the

September 1, 2016 affidavit, he does not plausibly suggest that Defendant Lessner fabricated the

first CS’s statements to obtain the warrant for the search of the Plaintiff’s home.

As to the second CS, the Plaintiff offers allegations similar to the September 28, 2016

report allegation:

Furthermore, in the search warrant affidavit of Plaintiff’s business, on

paragraph 17 it states that “on June 13, 2016 “UC-323” of the Elkhart County ICE

Unit, spoke with CS15-014, naming “Brian Schroth” obtained her statement (see

exhibit-17, Page 9 of 23, Paragraph 17), while in contrary to that account, Elkhart

County ICE Unit Reports (Exhibit-18), of the same statement, state’s that “on 06-

13-16, “I” spoke with CS15-014” which according to that document provided by

the Elkhart County Prosecuting Office, it describes a different Undercover

“UC205”, of having collected her statement.

Pl. Resp. Br. 17–18, ECF No. 229.

Although the Plaintiff is arguing that two documents establish that two investigators

obtained the second CS’s statements on June 13, 2016, and that the second CS’s statements are

included in Defendant Lessner’s affidavit, this factual content does not plausibly suggest that

Defendant Lessner included a false statement from the second CS or omitted information to

obtain the search warrant. As with the first CS, the Plaintiff does not address the fact of the

debrief or call into question the debrief in any way, which is how Defendant Lessner states that

he also learned about the information from the second CS. The mere fact of the existence of two

documents that establish that two other investigators obtained the second CS’s statements on

June 13, 2016, does not indicate that Defendant Lessner could not have learned about the

information from the second CS at the debrief. Nor does the fact of the two documents contradict

Defendant Lessner’s statement that he learned the information about the second CS from the

debrief. Also, the Plaintiff has not offered any allegations to question Defendant Lessner’s

reliance on the debrief. Thus, even giving the Plaintiff the benefit of his factual allegations about

the two documents and the two investigators, he does not plausibly suggest that Defendant

Lessner made a false statement or omitted information related to the information from the second

CS to obtain the search warrant.

Second, in his brief in response to the Defendants’ motion to dismiss, the Plaintiff

contends that the information that Defendant Lessner included in the affidavit from the first CS

was false because the “Plaintiff . . . denies each and every allegation.” Pl. Resp. Br. 13, ECF No.

229. For the second CS, the Plaintiff also asserts that he “denies these allegations.” Id. at 16.

However, these denials are conclusory because they are unsupported by any factual allegations

as to what the accurate information is that Defendant Lessner should have provided compared to

the information provided by the first or second CS and included in Defendant Lessner’s affidavit.

Cf. Johnson, 580 F.3d at 670. Therefore, the Plaintiff’s unsupported denials are insufficient to

plausibly suggest that there was an inaccuracy or lie in the information from the first or second

CS that Defendant Lessner included in the affidavit.

Third, the Plaintiff argues in the context of the information from the first CS that

Defendant Lessner falsely stated in the affidavit that the Plaintiff had a state of Indiana license

plate that read CASPER because “Indiana Motor Vehicles can corroborate the false assertion by

Lessner.” Pl. Resp. Br. 14, ECF No. 229. Although this argument identifies an alleged factual

error in Defendant Lessner’s affidavit, the Plaintiff does not explain how the probable cause

determination by the federal magistrate judge hinged on the statement that the Plaintiff had a

state of Indiana license plate that read CASPER. And even deleting the information about the

license plate from the affidavit, the affidavit still noted that the CS knew that Casper owned the

business R&R Auto Sales in Elkhart, Indiana—for which the affidavit reported that public

records established that the incorporator of the business is listed as the Plaintiff—and that

Defendant Lessner knew through the ongoing investigation into the Plaintiff that Casper was the

Plaintiff. Thus, even giving the Plaintiff the benefit of his contention that Defendant Lessner

falsely stated that the Plaintiff had an Indiana state license plate that read CASPER, there is no

indication that the information about the license plate was material to the probable cause

determination because even without that information the affidavit establishes that Casper is the

Plaintiff.

Accordingly, the Court finds that the Plaintiff has not plausibly alleged that, in providing

information the affidavit from the CSs, Defendant Lessner knowingly, intentionally, or with

reckless disregard for the truth made a false statement material to the probable cause

determination or that he intentionally or recklessly withheld material information.

3. August 23, 2016 Undercover Buy From Jorge B. Moreida (Affidavit Paragraphs 19–29)

According to the affidavit, on August 23, 2016, Defendant Lessner, acted in an

undercover capacity and met with Jorge B. Moreida, a known associate of the Plaintiff, at his

54353 Berkley Avenue, Elkhart, Indiana residence and coordinated the purchase of eight ounces

of methamphetamine later that same day. Pl. Ex. 16, ¶¶ 12, 19, ECF No. 229-1, pp. 88, 90; Def.

Att. 1 ¶ 19, ECF No. 188-1. The affidavit reported that right after the undercover meeting

between Defendant Lessner and Moreida, Moreida contacted the Plaintiff by cell phone at cell

phone number (260) 431-9552 and that the contact was verified through a federal search warrant

for toll (incoming and outgoing calls) information executed on Moreida’s cell phone. Id. ¶ 21.

The affidavit also reported that the cell phone with the number (260) 431-9552 was known to be

possessed by the Plaintiff. Id. ¶ 7.

The affidavit further reported that ATF and EC-ICE surveillance units observed Moreida

leave his residence driving a red pickup truck directly to R&R Auto Sales where he met with the

Plaintiff, and a federal search warrant providing GPS data and cellular tower data executed on

Moreida’s cell phone corroborated his location. Id. ¶ 22. The investigators maintained

surveillance on R&R Auto Sales and observed a black Dodge Challenger occupied by the

Plaintiff and Moreida leave southbound on County Road 45 driving to the Plaintiff’s residence,

and GPS data and cell tower data corroborated Moreida’s location at the Plaintiff’s residence. Id.

¶ 23.

The affidavit also reported that, at approximately 21:15 hours, GPS data and cell tower

data of Moreida’s cell phone indicated that he was in transit and leaving the area of the

Plaintiff’s residence heading north toward Elkhart, Indiana. Id. ¶ 24. ATF and EC-ICE

investigators observed Moreida drive to his residence in the black Dodge Challenger, go inside,

exit a short time later, and drive to 1501 E. Bristol Street where Moreida anticipated that

Defendant Lessner would be waiting for him to conduct the narcotics transaction. Id. ¶ 25.

However, Defendant Lessner had not yet arrived, so Moreida waited for several minutes and then

returned to his residence. Id. Defendant Lessner communicated over voicemail and text messages

multiple times with Moreida, and Moreida indicated that he would meet with Defendant Lessner

at 1501 E. Bristol Street to conduct the sale of the methamphetamine. Id. ¶ 26. At approximately

22:16 hours, Defendant Lessner arrived at 1501 E. Bristol Street, and Defendant Lessner

observed Moreida sitting in the driver’s seat of the Dodge Challenger. Id. ¶ 28. He entered

Moreida’s vehicle and purchased eight ounces of methamphetamine, which EC-ICE later

confirmed tested positive for the presence of methamphetamine. Id. ¶¶ 28–29.

Further, the affidavit highlighted that Defendant Lessner met with Moreida on thirteen

separate ocassions in an undercover capacity, while present in the Northern District of Indiana,

during multiple controlled ATF operations purchasing varying quantities of methamphetamine,

ranging from one ounce to sixteen ounces and that twice was pink. Id. ¶ 20. The affidavit noted

that Moreida told Defendant Lessner that he also sold green methamphetamine, and that

Defendant Lessner knew Moreida to be strongly associated with the Plaintiff. Id.

In his response brief, the Plaintiff exaggerates Defendant Lessner’s statement in

Paragraph 21 of the affidavit. Paragraph 21 is the paragraph that reported that immediately after

the undercover meeting between Defendant Lessner and Moreida, Moreida contacted the

Plaintiff at cell phone number (260) 431-9552 and that the contact was verified through a federal

search warrant for toll (incoming and outgoing calls) information executed on Moreida’s cell

phone. Giving the Plaintiff the benefit of his allegations, he appears to argue that, because

Officer Whitmyer did not verify that cell phone number (260) 431-9552 belonged to the Plaintiff

until August 27, 2016, the federal warrant only authorized the investigators to see incoming and

outgoing calls for Moreida’s phone, and the phone number (260) 431-9552 was not registered to

the Plaintiff, Defendant Lessner could have only used an unauthorized interception of wire in the

form of a Stingray device to verify that the cell phone with the phone number (260) 431-9552

belonged to the Plaintiff, which he did not tell the federal magistrate judge about in his affidavit.

See Pl. Resp. Br. 23–24, ECF No. 229. The Plaintiff argues that the purported omission of the

use of a Stingray was material to the probable cause determination because “no evidence derived

[from an unauthorized interception of wire] may be received in evidence in any trial, hearing, or

other proceeding in or before any court.” Id. at 29.

However, the Plaintiff has not offered any facts to plausibly allege that Defendant

Lessner used a Stingray device to obtain the information that cell phone number (260) 431-9552

belonged to the Plaintiff. Defendant Lessner stated in the affidavit that the cell phone with the

number (260) 431-9552 was known to be possessed by the Plaintiff. He did not state the date on

which he learned that information. That Officer Whitmyer verified that the cell phone with the

number (260) 431-9552 belonged to the Plaintiff on August 27, 2016, which was four days after

the August 23, 2016 phone call, does not contradict Defendant Lessner’s statement. Also, there is

no allegation in the Amended Complaint that Defendant Lessner used a Stingray device to learn

that the cell phone belonged to the Plaintiff or that Defendant Lessner knew or should have

known that a Stingray device was used to identify the cell phone’s owner.

Even if the Plaintiff had plausibly alleged that Defendant Lessner omitted the use of a

Stingray device, the information that Moreida called the Plaintiff right after the meeting between

Defendant Lessner and Moreida to coordinate the purchase of eight ounces of methamphetamine

for later that same day would not have been material to the probable cause determination. This is

because the affidavit also indicates that, after the meeting on August 23, 2016: surveillance units

observed Moreida leave his residence and drive directly to R&R Auto Sales where he met the

Plaintiff; next the surveillance units observed a black Dodge Challenger occupied by the Plaintiff

and Moreida leave R&R Auto Sales and drive to the Plaintiff’s residence; later GPS data and cell

tower data of Moreida’s cell phone indicated that he was in transit and leaving the area of the

Plaintiff’s residence heading north toward Elkhart, Indiana; then surveillance units observed

Moreida drive to his residence in the black Dodge Challenger, go inside, exit a short time later,

and drive to 1501 E. Bristol Street where Moreida anticipated that Defendant Lessner would be

waiting for him to conduct the narcotics transaction; and eventually Defendant Lessner entered

Moreida’s vehicle and purchased eight ounces of methamphetamine, which EC-ICE later

confirmed tested positive for the presence of methamphetamine. Whether Moreida met with

Defendant Lessner to coordinate the purchase of eight ounces of methamphetamine for later that

same day and immediately after the meeting called the Plaintiff and then went to the Plaintiff’s

business or just went to the Plaintiff’s business without calling the Plaintiff, the material facts are

the same: after the meeting with Defendant Lessner to coordinate the purchase of eight ounces of

methamphetamine for later that same day, Moreida went directly to the Plaintiff’s business, then

to the Plaintiff’s residence with the Plaintiff, and then from the Plaintiff’s residence to sell

methamphetamine to Defendant Lessner in Elkhart.

For this reason, the additional alleged omissions that the Plaintiff identifies without

explaining their materiality—that Defendant Lessner did not include in the affidavit that Moreida

was at R&R Sales prior to his “coordination meeting” with Defendant Lessner, Defendant

Lessner went to that coordination meeting without funds and was not there to conduct a buy, and

Moreida offered to make a deal with Defendant Lessner prior to consulting with the Plaintiff—

would also not be material. Besides, that Defendant Lessner went to the coordination meeting

without funds and was not there to conduct a buy is implied by the facts set forth in the affidavit

including that the meeting was to coordinate the methamphetamine purchased for later that day;

thus, that allegation would not be material for that additional reason.

Accordingly, the Court finds that the Plaintiff has not plausibly alleged that, in the

affidavit about the events of August 23, 2016, Defendant Lessner knowingly, intentionally, or

with reckless disregard for the truth made a false statement material to the probable cause

determination or intentionally or recklessly withheld material information.

4. September 10, 2016 Cell Phone Pings from the Plaintiff’s Phone in Fort Wayne, Indiana,

and Surveillance at the Plaintiff’s Residence (Affidavit Paragraphs 30–32)

According to the affidavit, on September 10, 2016, Defendant Lessner knew that a

federal search warrant for GPS data and cell tower information executed on a phone known to be

possessed by the Plaintiff showed the Plaintiff to be in Fort Wayne, Indiana. Pl. Ex. 16, ¶ 30,

ECF No. 229-1, p. 93; Def. Att. 1 ¶ 30, ECF No. 188-1. The affidavit stated that at 16:08 hours,

the ping indicated that the Plaintiff was at a gas station in Fort Wayne (3116 W. Coliseum Blvd.,

Fort Wayne, Indiana 46808). Id. And at 16:25 hours, the ping showed that the Plaintiff was at the

Rodeway Inn (2920 Goshen Road, Fort Wayne, Indiana 46808). Id. Between 16:08 hours and

16:25 hours, the Plaintiff received a call associated with a Mexican telephone number, which

was corroborated through a federal search warrant for toll information (incoming and outgoing

calls) executed on the Plaintiff’s cellphone number. Id. The affidavit stated that the Plaintiff

remained mobile in the Fort Wayne area for approximately 30 minutes, and his cellphone pings

showed him returning to his residence without any stops. Id. ¶ 31. EC-ICE surveillance units

observed the Plaintiff arrive at his residence and remove a package from the vehicle. Id. ¶ 32.

In his Amended Complaint, the Plaintiff did not address this portion of Defendant

Lessner’s affidavit on the September 10, 2016 surveillance of him in Fort Wayne. However, in

his response brief, the Plaintiff argues:

On paragraph 30-32, based on precision location global positioning (GPS)

data and cellular tower information executed on a phone known to be possessed by

Plaintiff, Lessner alleges that at 4:08 p.m., the ping indicated Plaintiff was located

at a gas station that in Fort Wayne, IN., even describing the address involved.

Moreover, Lessner indicates that at 4:25 p.m., the ping showed Plaintiff to be at the

[Rodeway] Inn, again describing the address involved. He further asserts Plaintiff

remaining mobile in the Fort Wayne area for approximately 30 minutes, then the

ping showed Plaintiff returning to his home. Thereafter, ICE Unit investigators

supposedly observed Plaintiff remove a package from the vehicle.

In contrary to Lessner’s detailed account, Supplementary report and

testimony by Officer Whitmyer, state that on September 10, 2016, at approximately

5:00 p.m., ICE Unit investigators noticed that the ping was active on phone

belonging to Plaintiff, was headed south away from Elkhart area towards Fort

Wayne. That at approximately 7:15 pm Plaintiff appeared to be headed back

towards the Elkhart area. The times found in supplemental report and testified at

trial as compared to the times attested to in the warrant affidavit are inconsistent,

which further supports Plaintiff’s assertions that the warrant was created under false

pretense.

Plaintiff asserts that this misrepresentation by Lessner is material because:

Lessner deliberately falsified allegations to demonstrate probable cause, and his

reckless disregard of the truth misrepresented and tainted the entire affidavit, in

particular paragraph 12-18, by deceptive omission to the issuing judge.

Pl. Resp. Br. 21–22, ECF No. 229 (cleaned up). That another officer referred to the times of cell

phone pings with approximate times rather than the more precise times that Defendant Lessner

gave does not call into question the times that Defendant Lessner provided. Cf. United States v.

Jones, 208 F.3d 603, 607 (7th Cir. 2000) (explaining that “[t]he fact that [a plaintiff] can point

out additional things which could have been done but were not does not in any way detract from

what was done”). And both Defendant Lessner and Officer Whitmyer based their times on the

cell phone pings, but the Plaintiff does not address the pings in a way that would make the times

of the pings material to the probable cause determination.3

3 According to Defendant Lessner’s affidavit, a federal search warrant for precision location global

position (GPS) data and cell tower information was executed on a cell phone known to be possessed by

the Plaintiff with the phone number (260) 431-9552, which was active from September 2, 2016, to

September 15, 2016, and confirmed the Plaintiff to stay at the 71395 County Road 25, New Paris, Indiana

address. Pl. Ex. 16, ¶ 7, ECF No. 229-1, p. 86.

The Amended Complaint does not address Defendant Lessner’s statement about the dates this

warrant was active. However, in his response brief, the Plaintiff argues:

In addition, Brian Schroth, a peace Officer of the Elkhart County ICE Unit,

furnished a sworn application providing further information concerning the warrant for

ping and pen register regarding the above, stating that the warrant for pinging Plaintiff’s

cellular telephone was active on September 3rd, 2016 to September 19, 2016, (see exhibit-

8, pg. 2, prg. 26). The dates submitted in this additional affidavit as compared to the dates

attested to in the warrant are inconsistent, which further supports Plaintiff’s assertion that

the warrant was created under false pretense. Moreover, Brian asserts that a federal

prosecutor reviewed the affidavit that list a warrant to have been activated from the 3rd to

the 19th, in contrary to the Government’s response of not having any knowledge of such,

(see exhibit-6).

Pl. Br. 10, ECF No. 229. From these allegations, the Plaintiff appears to assert that Defendant Lessner’s

statement in the affidavit—that the federal warrant was active from September 2, 2016, to September 15,

2016—was false because Officer Schroth stated in another application that the federal warrant was active

from September 3, 2016, to September 19, 2016. However, the Plaintiff does not explain how the shorter

time range provided by Defendant Lessner was material to the federal magistrate judge’s probable cause

determination. The facts included by Defendant Lessner are the same whether the warrant was active

from September 2, 2016, to September 15, 2016, or from September 3, 2016, to September 19, 2016. The

Plaintiff does not identify any reference to pings in Defendant Lessner’s affidavit that occurred after

September 16, 2016.

Moreover, the Plaintiff has not shown that the timing is inconsistent in any material way.

Defendant Lessner wrote that, after the 4:25 p.m. stop at the Rodeway Inn, which the Court takes

judicial notice as on the Northwest side of Fort Wayne, the Plaintiff drove in the Fort Wayne

area for approximately 30 minutes, which would have been close to 5:00 p.m. This is not

inconsistent with a statement by Whitmyer that a ping showed the Plaintiff at approximately 5:00

p.m. driving toward Fort Wayne from the direction of the Elkhart area, which the Court takes

judicial notice as Northwest of Fort Wayne. Neither Defendant Lessner nor Whitmyer indicate

how far from Fort Wayne the Plaintiff was at 5:00 p.m. The Court further takes judicial notice

that the Plaintiff’s residence is approximately one hour and fifteen minutes by car from Fort

Wayne, Indiana, driving in the direction of the Elkhart area. Thus, Defendant Lessner’s

statement that the Plaintiff was observed at his residence after he left Fort Wayne is not

inconsistent with Officer Whitmyer’s statement that at 7:15 p.m., the Plaintiff was headed in the

direction of the Elkhart area.

Importantly, the Plaintiff does not dispute Defendant Lessner’s report that the Plaintiff

received a call associated with a Mexican phone number while he was in Fort Wayne or that

investigators conducting surveillance at the Plaintiff’s residence observed the Plaintiff remove a

package from the vehicle.

Accordingly, the Court finds that the Plaintiff has not plausibly alleged that, in providing

information in the affidavit about the events of September 10, 2016, Defendant Lessner

knowingly, intentionally, or with reckless disregard for the truth made a false statement material

to the probable cause determination or intentionally or recklessly withheld material information.

5. October 28, 2016 Undercover Buy From Moreida and Surveillance of the Plaintiff and

Moreida (Affidavit Paragraphs 33–56)

According to the affidavit, on October 28, 2016, at 13:56 hours, Defendant Lessner was

contacted by Moreida from cellphone number (574) 389-6775 by text message. Pl. Ex. 16, ¶ 33,

ECF No. 229-1, p. 94; Def. Att. 1 ¶ 33, ECF No. 188-1. The affidavit reported that Moreida

agreed to sell Defendant Lessner sixteen ounces of methamphetamine for $11,000 with

Defendant Lessner paying $8,500 on that day and the remaining $2,500 on a later date. Id.

Moreida indicated that he would meet Defendant Lessner at 1501 E. Bristol Street, Elkhart,

Indiana, 46514. Id. During the text messaging, ATF and EC-ICE surveillance units observed at

R&R Auto: Moreida, the Plaintiff, a gold Lincoln Navigator known to be associated with and

driven by the Plaintiff, and a black Nissan Murano SUV (Indiana license plate 716NC) known to

be driven by Moreida and utilized by him during an October 22, 2016 methamphetamine

purchase. Id. ¶ 34.

The affidavit also reported that, at 14:45 hours, investigative surveillance units observed

Moreida and the Plaintiff enter the black Nissan Murano and leave R&R Auto driving southeast

on Hammond Avenue with Moreida sitting in the front passenger seat and the Plaintiff operating

the vehicle. Id. ¶ 35.4 At 14:59 hours, the investigative surveillance units observed the black

Nissan Murano enter a mobile home park in Goshen, Indiana, and stop in front of a mobile home

and the Plaintiff enter the mobile home while Moreida remained inside the vehicle. Id. ¶ 36. At

15:04 hours, the investigative surveillance units observed the Plaintiff exit the mobile home and

re-enter the black Nissan Murano on the driver’s side of the vehicle and then operate it, leaving

the mobile home park and driving south from the Goshen area. Id. ¶ 37.

4 The affidavit notes that the times are approximate.

At 15:25 hours, investigative surveillance units observed Moreida and the Plaintiff arrive

in the black Nissan Murano at the Plaintiff’s residence, both exit the vehicle, and both walk

under the porch overhang toward the front door of the residence. Id. ¶ 38. At 15:40 hours,

investigative surveillance units observed the Plaintiff and Moreida exit the door located near the

garage of the Plaintiff’s residence and Moreida walk to the passenger side of the black Nissan

supporting with his left hand a protrusion in the front left of his gray sweatshirt as he entered the

vehicle. Id. ¶ 39. At 15:41 hours, surveillance units observed the Plaintiff and Moreida leave the

Plaintiff’s residence and drive northbound toward Elkhart, Indiana. Id. ¶ 40.

The affidavit then noted that, at 16:21 hours, Defendant Lessner arrived at 1501 E.

Bristol Street, Elkhart, Indiana, 46513, awaiting the arrival of Moreida to conduct the

methamphetamine transaction with surveillance units pre-positioned in the vicinity. Id. ¶ 41. At

16:39 hours, surveillance units observed: the Plaintiff and Moreida drive to a Metro PCS

wireless dealer (1808 E. Bristol Street, Elkhart, Indiana 46514), the Plaintiff exit the driver side

of the vehicle and entered the Metro PCS store, and Moreida exit the passenger side of the

vehicle and enter on the driver’s side of the vehicle. Id. ¶ 42.

At 16:39 hours, surveillance units observed Moreida leave the Metro PCS wireless dealer

alone in the black Nissan Murano, which was 0.4 miles to 1501 E. Bristol Street, Elkhart,

Indiana 46514. Id. ¶ 43. At 16:39 hours, surveillance units observed Moreida arrive at 1501 E.

Bristol Street, and Defendant Lessner observed the black Nissan Murano drive into the parking

lot from Lilac Street and park alongside Defendant Lessner’s vehicle. Id. ¶ 44. At 16:41 hours,

Moreida exited his vehicle and entered the front seat of Defendant Lessner’s vehicle. Id. He then

handed Defendant Lessner a McDonalds restaurant bag that was tightly wrapped around the

suspected methamphetamine; Defendant Lessner could feel a grainy/crystal like substance inside

the bag and could detect a strong chemical odor coming from the bag. Id. ¶¶ 45–46. Defendant

Lessner paid the $8,500 in prerecorded ATF agent cashier funds to Moreida for sixteen ounces of

methamphetamine, and Moreida indicated that the substance was one pound of

methamphetamine and that Defendant Lessner owed $2,500 more. Id. The substance was later

confirmed by EC-ICE to have tested positive for methamphetamine. Id. ¶ 56.

The affidavit also noted that at 16:43 hours, Moreida exited Defendant Lessner’s vehicle

and entered the driver side front seat of the black Nissan Murano, and he was observed by

surveillance units driving the vehicle north onto Lilac Street and heading east on Bristol Street.

Id. ¶ 47. At 16:44, surveillance units observed Moreida arrive at the Metro PCS wireless dealer

(1808 E. Bristol Street, Elkhart, Indiana) and park the black Nissan Murano directly in front of

the Metro PCS store. Id. ¶ 48. At 16:45 hours, only several seconds after Moreida’s arrival,

surveillance units observed the Plaintiff exiting the Metro PCS store and entering the passenger

side of the black Nissan Murano and then the Plaintiff and Moreida departing the Metro PCS

store in the vehicle. Id. ¶ 49.

In the Amended Complaint, the Plaintiff does not address the affidavit’s description of

the events of October 28, 2016. However, in his response brief, the Plaintiff contends:

Finally, the October 28, 2016, Affidavit describes how Moreida contacted

Lessner in hopes to land a drug sale, while Moreida was at Plaintiff’s business.

During the course of this alleged transaction, Moreida was in his girlfriend’s Nissan

Murano alike he previously did, which Plaintiff drives to several locations before

Moreida met Lessner. Throughout the course of this event, aerial video footage

monitors Moreida’s whereabouts by the use of a helicopter. The video starts at the

place of business and proceeds to record his movements thereafter, the affidavit

presents a scenario that focuses on Moreida prior to the delivery, failing to mention

that a week prior to this transaction Moreida and Lessner agreed to make a deal on

that day and at that specific time, where, this as well is to inconclusive too assume

that Moreida retrieved drugs from any of the locations related to Plaintiff.

Moreover, Moreida could have already arrived at business with the drugs he

arranged to sell, prior to and was waiting on Lessner to come around so he could

finalize his task. Here, Lessner misrepresents the facts and falsifies Plaintiff’s

association to be greater or appear to be at certain places that he is not, in

demonstrating probable cause to issue a warrant.

Pl. Resp. Br. 32, ECF No. 229 (cleaned up).

While the Plaintiff asserts that Defendant Lessner omitted that a week prior to the

transaction Moreida and Defendant Lessner agreed to make a deal on that day and at that specific

time, the Plaintiff does not explain why the facts in the affidavit would be insufficient for a

finding of probable cause if the information about the earlier meeting were added. Considering

all the other information in the affidavit about the Plaintiff’s close proximity to Moreida prior to

and throughout his methamphetamine deal with Defendant Lessner, the omission would not be

material.

To the extent that the Plaintiff also suggests alternative inferences to the inference that

Moreida received drugs from the Plaintiff’s business or residence, he does not base the

alternatives on an omission or false statement by Defendant Lessner, and Defendant Lessner’s

affidavit did not identify a specific inference related to the events of October 28, 2016. Thus, the

Court need not address the materiality of the alternative inferences that the Plaintiff suggests.

Accordingly, the Court finds that the Plaintiff has not plausibly alleged that, in providing

information in the affidavit about the events of October 28, 2016, Defendant Lessner knowingly,

intentionally, or with reckless disregard for the truth made a false statement material to the

probable cause determination or intentionally or recklessly withheld material information.

6. December 2015 Surveillance of the Plaintiff and Moreida in Peru, Indiana (Affidavit

Paragraphs 12–18)

According to the affidavit, on December 12, 2015, Defendant Lessner and EC-ICE

investigators conducted mobile surveillance of Moreida, a known associate of the Plaintiff, who

was driving a white Chevrolet Colorado pick-up truck. Pl. Ex. 16, ¶ 12, ECF No. 229-1, p. 88;

Def. Att. 1 ¶ 12, ECF No. 188-1. The affidavit also stated that Moreida was known by the

investigators to drive that vehicle and to have delivered methamphetamine to Defendant Lessner

during a previous controlled undercover operation, while driving the white Chevrolet Colorado.

Id. The affidavit reported that Defendant Lessner and the other investigators were able to

visually confirm that Moreida was driving the Chevrolet Colorado and that they were able to

continually locate the position of it using a GPS tracking device that had been covertly placed on

the truck by investigators pursuant to a State of Indiana court order. Id.

The affidavit also reported that Defendant Lessner and the other investigators followed

Moreida from Elkhart, Indiana, to Warsaw, Indiana, and then to Silver Lake, Indiana, where they

observed him meeting with the Plaintiff—driving a silver Ford Expedition bearing the Indiana

license plate 707MBZ (and Defendant Lessner and the other investigators visually confirmed

that the Plaintiff was driving the Ford Expedition)—at the McClure Gas Station. Id. ¶ 13. After a

very brief meeting, Defendant Lessner and the investigators followed the Plaintiff and Moreida

as they drove south to Peru, Indiana, in their respective vehicles directly to the K-Mart store. Id.

¶ 14. The affidavit noted that Defendant Lessner and the other investigators observed the

Plaintiff park his silver Ford Expedition in a parking lot in front of the K-Mart and directly next

to a four-door sedan occupied by one unidentified person and meet with the unidentified person

for approximately three minutes. Id. ¶ 15. And immediately after that meeting, Defendant

Lessner and the other investigators followed the Plaintiff and Moreida to the Plaintiff’s

residence, arriving at approximately 22:25 hours. Id. ¶ 16.

The affidavit also noted that at 22:37 hours, Defendant Lessner received a text message

on his undercover cell phone from the cell phone known to be used by Moreida because it was

used on a previous occasion to coordinate undercover methamphetamine purchases. Id. ¶ 17. The

affidavit noted that Moreida indicated in the text message that he wanted to know if Defendant

Lessner would be purchasing methamphetamine from him that week, and Moreida sent seven

identical messages between 22:27 hours and 22:44 hours. Id. The affidavit stated that Moreida

and the white Chevrolet Colorado remained at the Plaintiff’s New Paris, Indiana, residence for

approximately 23 minutes. Id. ¶ 18. Moreida and the White Chevrolet Colorado were observed

leaving and heading toward Elkhart where the vehicle was observed by EC-ICE parked in the

driveway of 812 W. Indiana Avenue, Elkhart, Indiana. Id.

As to Defendant Lessner’s statements in the affidavit, the Plaintiff alleges in the

Amended Complaint that, “[o]n November 2, 2016, Brian conducted an interview of Moreida, . .

. [and] [t]he information gathered . . . was used to further obtain probable cause . . . which was

after officials had already executed both searches.” Am. Compl. ¶ 12. The Plaintiff also alleges

that “[I, hold] a C/D of a recorded interview of the search of his home on November 2, 2016, in

support that Brian had just figured out why I and Moreida went to Peru Indiana, on December

11, 2015.” Id. ¶ 14.5 “Information that emerges after the warrant is issued has no bearing on this

analysis” because “[courts] do not view probable cause determinations with hindsight.” Guzman

v. City of Chicago, 565 F.3d 393, 396 (7th Cir. 2009). In this case, the search warrant issued on

October 31, 2016, yet this information from the interview of Moreida emerged on November 2,

2016, after the search warrant issued. Thus, that information has no bearing on the Court’s

analysis.

Also, in the Amended Complaint, the Plaintiff alleges:

[Lessner] states that on December 12, 2015, [I] drove directly to a K-mart store in

Peru Indiana and met with an unknown individual for approximately 3 minutes.

5 In his response brief, the Plaintiff attempts to clarify that by these allegations he meant:

This information [about the 2015 surveillance] wasn’t fully gathered until Brian

spoke with Moreida, the day of the search as described above and in the disc below, which

was clearly after the execution of the search (see exhibit10- in, disc-1, 2nd Recorded

conversation, Min. 43.23-45.00).

“so the guys got Moreida his singing, so there’s a load its suppose to get delivered

here to this address” “Brian figured out, we did ugh a surveillance back in December

watched the guys go and meet in Peru and then come back and ah and bring the load back

here with that same guy. I don’t know if like”.

Pl. Resp. Br. 21, ECF No. 229. But because the search occurred after the warrant issued, the information

is irrelevant. See Guzman v. City of Chicago, 565 F.3d 393, 396 (7th Cir. 2009).

Meanwhile, on December 11, 2015, Lessner and Brian conducted a surveillance of

Moreida, . . . [; however,] if [I] was seen at a K-Mart store and met with anyone in

a four door sedan, it would not have been documented.

Am. Compl. ¶ 13. He also alleges that “[I], did go to Peru Indiana on December 11, 2015, in a

Ford Expedition, but did not go to a K-Mart store. [I stand] firm that [I] went to a Best Western

and later met with Moreida at a BP gas station . . . .” Id. ¶ 15. Consequently, the Plaintiff further

alleges that “the record is clear that on December 11, 2015, investigators did not thoroughly

conduct surveillance on Moreida like they said they did.” Id. ¶ 16.

Then in his response brief, the Plaintiff adds:

Lessner provided details of an occurrence concerning a trip to Peru, Indiana,

between Moreida and [me], which investigators well documented on 12-14-2015

(see exhibit-11). Lessner implicated the date to be December 12, instead of

December 11, 2015, moreover he indicated [I] went to a K-Mart Store and met with

unidentified individual. [I have] always been in contrary to the allegation of driving

passed a K-Mart Store or parked in front of, on December 11, 2015, like Lessner

has falsified.

Pl. Resp. Br. 20–21, ECF No. 229.

Thus, it appears that the Plaintiff contends that Defendant Lessner’s statement that the

surveillance took place on December 12, 2015, is inaccurate because it took place on December

11, 2015. However, the Plaintiff has not alleged any reason to believe that including the correct

date would have made a difference in the federal magistrate judge’s decision to issue the warrant.

Cf. Zambrella v. United States, 327 F.3d 634, 639 (7th Cir. 2003) (“Zambrella’s argument in

support of a Franks hearing fails for the additional reason that there is no reason to believe that

including the correct date (August 13, 2000 rather than August 21, 2000) . . . would have made a

difference in the judge’s decision to issue the warrant.”).

Another argument appears to be that Defendant Lessner falsely stated that he observed

the Plaintiff at K-Mart when the Plaintiff was at the Best Western. However, the Plaintiff does

not allege why the false statement was knowing, intentional, or reckless. Even if he had, the

Plaintiff has not alleged any reason to believe that including that the Plaintiff was at the Best

Western instead of the K-Mart would have made a difference in the federal magistrate judge’s

decision to issue the warrant. Although Defendant Lessner stated that he observed the Plaintiff

meet an unnamed person at the K-Mart, there is no indication that the meeting between the

Plaintiff and the unnamed person at the K-Mart would have been material to the decision to issue

the warrant.

Accordingly, the Court finds that the Plaintiff has not plausibly alleged that, in providing

information in the affidavit about the December 2015 surveillance, Defendant Lessner

knowingly, intentionally, or with reckless disregard for the truth made a false statement material

to the probable cause determination or intentionally or recklessly withheld material information.

7. Nexus

Although not in the Amended Complaint, in his response brief, the Plaintiff contends:

In the present case, the search warrant affidavit contained a boilerplate

allegation that drug traffickers often possess firearms and drugs. However, Lessner

did not present evidence that any agents or information made buys directly from

Plaintiff, or that a reliable confidential informant had purchased drugs there, much

less physically seen narcotics at the residence.

Pl. Resp. Br. 30, ECF No. 229.

However, the applicable standard is that

for a search warrant, probable cause does not require direct evidence linking a crime

to a particular place. Rather, issuing judges may draw reasonable inferences about

where evidence is likely to be found based on the nature of the evidence and the

offense. Thus, an affidavit submitted in support of a warrant application need only

contain facts that, given the nature of the evidence sought and the crime alleged,

allow for a reasonable inference that there is a fair probability that evidence will be

found in a particular place. In the case of drug dealers, this circuit has recognized,

evidence is likely to be found where the dealers live.

United States v. Zamudio, 909 F.3d 172, 175–76 (7th Cir. 2018) (cleaned up). But because the

claim against Defendant Lessner is based on a Fourth Amendment violation for the submission

of a false affidavit, to plausibly allege such a claim, the Plaintiff would need to allege that, in the

information that Defendant Lessner provided in the affidavit about the nexus, he knowingly,

intentionally, or with reckless disregard for the truth made a false statement material to the

probable cause determination or intentionally or recklessly withheld material information. See

Edwards, 907 F.3d at 1061; Greenpoint, 38 F.4th at 567–68. The Plaintiff makes no such

allegation related to the affidavit establishing a fair probability that evidence that the Plaintiff

was involved in an ongoing conspiracy with associates known by Defendant Lessner to distribute

methamphetamine would be found at the Plaintiff’s home.

Instead, the Plaintiff contends:

On August 23, 2016, where Lessner claims that Moreida agreed to make a deal with

him later on that day, and went to Plaintiff’s business, his house prior to delivering

drugs. Again, important details were deliberately left out to mislead the narrative

and demonstrate a so-called pattern concerning criminal activity, making it seem

that Moreida went to Plaintiff to obtain the drugs he sold to Lessner. Again Lessner

deliberately left out that Moreida was already working at RnR Sales with Plaintiff

and he was using Monica’s red pick-up truck to drop off lumber at his residence,

when Lessner appeared and discussed about a drug transaction.

Pl. Resp. Br. 30–31, ECF No. 229. In those allegations, the Plaintiff does not plausibly allege

that Defendant Lessner knew or should have known at the time of the affidavit that Moreida

worked at R&R Sales or that Moreida was using the red pickup to drop off lumber. Thus, the

materiality of either fact to the “fair probability” question is irrelevant.

The Plaintiff also contends that “Lessner deliberately left out that at the time he met with

Moreida he was not ready to obtain any drugs and would need money brought to him later on

that day.” Pl. Resp. Br. 31, ECF No. 229. However, the Plaintiff does not indicate whether this

information was material to the probable cause determination. It would not have been. As

discussed above, Defendant Lessner noted in the affidavit that he first met with Moreida on

August 23, 2016, to coordinate the purchase of eight ounces of methamphetamine for later that

day, which indicates that Defendant Lessner was not ready to obtain the methamphetamine or

pay for it at that time.

The Plaintiff additionally asserts that Defendant Lessner omitted from the affidavit that

“Moreida did not discuss with Plaintiff prior to making any deal with Lessner nor did he call

Lessner right after he called Plaintiff to verify any deal, while Moreida has done this

approximately on 13 separate occasions, not once did he call Plaintiff to verify prior to.” Pl.

Resp. Br. 31, ECF No. 229. However, these assertions are insufficient because the Plaintiff has

not developed them to explain why including the purported omitted information would have

made a difference in the federal magistrate judge’s decisions to issue the search warrant.

Then the Plaintiff contends, “[I]f Moreida was depending on Plaintiff like this affidavit

describes, he would at least verified that drugs were available before the deal.” Id. This

contention is the Plaintiff’s speculation about what Moreida would have done, which is

insufficient to plausibly allege an omission by Defendant Lessner that was material to the “fair

probability” determination.

As to the Plaintiff’s trip to Fort Wayne on September 10, 2016, the Plaintiff alleges:

There was no further information that would demonstrate investigators here

corroborate information to be part of criminal activity or that Plaintiff did go to

such place and did remove a package from the vehicle, no video audio or

photographs support any claim rather all evidence presented are word of mouth and

inconsistent. Again this information is too inconclusive to assume any criminal

activity took place or suspicion of any wrong doing.

Id. However, the fact that the Plaintiff “can point out additional things which could have been

done but were not does not in any way detract from what was done.” Jones, 208 F.3d at 607.

This means that the Plaintiff has not alleged a plausible knowing, intentional, or reckless

omission by Defendant Lessner because the Plaintiff only asserts that the investigators could

have presented video, audio, or photographic evidence. Also, the contention that the evidence

presented was inconsistent is unsupported by factual allegations and thus is insufficient.

As to the events of October 28, 2016, the Plaintiff’s argument, which is quoted in full

above, essentially asserts that Defendant Lessner misrepresented facts and falsified the Plaintiff’s

association with Moreida by not including the fact that Defendant Lessner and Moreida had

agreed to make the transaction a week earlier. See Pl. Resp. Br. 32, ECF No. 229. However, the

Plaintiff does not explain why including the information about the prior agreement would have

made a difference in the federal magistrate judge’s decision that there was a fair probability that

evidence that the Plaintiff was involved in an ongoing conspiracy with associates to distribute

methamphetamine would be found at the Plaintiff’s home. That in the Plaintiff’s opinion the

facts in the affidavit are too inconclusive or could result in alternative inferences does not

plausibly allege a knowing, reckless, or intentional false statement or omission by Defendant

Lessner that was material to that probable cause determination.

Accordingly, the Court finds that the Plaintiff has not plausibly alleged that, in providing

information in the affidavit about the nexus, Defendant Lessner knowingly, intentionally, or with

reckless disregard for the truth made a false statement material to the probable cause

determination or intentionally or recklessly withheld material information.

8. Conclusion

For the reasons set forth above, even giving the Plaintiff the benefit of the new factual

assertions he presents in his brief, Defendant Lessner is entitled to qualified immunity because

the Plaintiff has not plausibly alleged that, in providing information in the affidavit with the

application for the warrant of the search of the Plaintiff’s home, Defendant Lessner knowingly,

intentionally, or with reckless disregard for the truth made a false statement material to the

probable cause determination or intentionally or recklessly withheld material information.

C. Fourth Amendment Violation Claim Against Defendant Lessner—Participation in

Search

The Plaintiff also alleges a claim against Defendant Lessner for violating the Fourth

Amendment based on an unreasonable search stemming from his participation in the search of

the Plaintiff’s home. However, “[t]he search of a home for evidence of a crime is generally not

unreasonable if it was conducted pursuant to a search warrant supported by probable cause.”

United States v. Butler, 71 F.3d 243, 248 (7th Cir. 1995). In this case, because the Plaintiff has

not plausibly alleged that the warrant application for the search of his residence was not

supported by probable cause, as set forth above, he has not plausibly alleged a claim for Fourth

Amendment violation against Defendant Lessner based on his participation in the search of the

Plaintiff’s residence. Thus, the Court need not address the parties’ additional arguments on the

claim.

D. Fourth Amendment Violation Claim Against Defendants Bennett and Lerch—

Warrantless Search of the Plaintiff’s Business

As stated above, the Court screened the Amended Complaint and granted the Plaintiff

leave to proceed against Defendants Bayne Bennett and Kyle Lerch (ATF agents) in their

individual capacities for compensatory and punitive damages for the Plaintiff’s claim that they

conducted a warrantless search of his business in violation of the Fourth Amendment. Apr. 6,

2023 Op. & Ord., ECF No. 141. However, in his response brief, the Plaintiff clarifies that the

claim against Defendants Bennett and Lerch is for the search of his vehicles at his residence. See

Pl. Resp. Br. 33, ECF No. 229. In the Amended Complaint, the Plaintiff did not allege that the

vehicles were at the Plaintiff’s residence. See Am. Compl., ECF No. 136. And the Plaintiff did

not request leave to amend the Amended Complaint to add a claim against Defendants Bennett

and Lerch for excessive or unnecessary destruction of the Plaintiff’s vehicles at his residence in

violation of the Fourth Amendment.

Even if he had, the contentions set forth in the Plaintiff’s brief in response to the

Defendants’ Motion to Dismiss would be insufficient. This is because “[t]he general touchstone

of reasonableness which governs Fourth Amendment analysis, governs the method of execution

of the warrant.” United States v. Ramirez, 523 U.S. 65, 71 (1998) (cleaned up). And “officers

executing search warrants on occasion must damage property in order to perform their duty.”

Dalia v. United States, 441 U.S. 238, 258 (1979) (citations omitted). For example, “officers are

entitled to open drawers and other containers and even cut open walls and cushions when

searching for drugs.” Tate v. City of Chicago, No. 19 C 7506, 2020 WL 6715660, at *8 (N.D. Ill.

Nov. 16, 2020) (citing Washington v. Godinez, No. 95 C 7612, 1996 WL 599055, at *2 (N.D. Ill.

Oct. 17, 1996)). Nevertheless, “[e]xcessive or unnecessary destruction of property in the course

of a search may violate the Fourth Amendment, even though the entry itself is lawful and the

fruits of the search are not subject to suppression.” Ramirez, 523 U.S. at 71; see Heft v. Moore,

351 F.3d 278, 282 (7th Cir. 2003) (“[T]he Fourth and Fourteenth Amendments provide a remedy

when a citizen’s property is unreasonably damaged during a search.” (citing Ramirez, 523 U.S.

at 71; Daniels v. Southfort, 6 F.3d 482, 486 (7th Cir. 1993))). Thus, the question is whether the

property damage “was necessary to execute the search.” Tate, 2020 WL 6715660, at *8; see

Dalia, 441 U.S. at 258.

In this case, the Plaintiff contends:

Plaintiff brings his unreasonable search claim . . . against Lerch and Bennet

for the unnecessary destruction of his property, a black Chevy Silverado (see

Exhibit-27) and Yukon Denali parked outside his residence. Plaintiff brings his

unreasonable search claim . . . against Lerch and Bennet for the unnecessary

destruction of his property, a black Chevy Silverado (see Exhibit-27) and Yukon

Denali parked outside his residence. The claim as to Lerch and Bennett is that they

unreasonably destroyed his property and left without performing any repairs, in

violation of the Fourth Amendment. After McCloughen presented a report

describing Bennett and Lerch specifically searching the Denali and Bennett having

searched the Silverado, Plaintiff filed his complaint against Defendants.

. . .

Here, it is noticeable that in exhibit-10 in the recorded conversation, an agent is

heard stating the following:

• “I just tore the counsel out of that car, literally took the screws out and

ripped it out” and found nothing (see exhibit-10, 2nd recording at 42:35-

42:50,)

• “Do you think this is the load,” “so there’s a load supposed to be delivered

here, to this address” “who leaves and is gone for 12 hours to go get their

own truck” (see exhibit-10, 2nd recording at 43:22-47:35,)

This information can only conclude that those investigators were on a

fishing expedition and in the midst of their expedition destroyed Plaintiff’s

vehicle.

. . .

Here, Agents not only broke apart interior and exterior parts of a truck

belonging to Plaintiff, but caused further damage[] when they unloaded this vehicle

from a flatbed tow truck.

Pl. Resp. Br. 33–34, ECF No. 229.

However, these contentions do not attribute any unreasonable conduct to Defendants

Bennett and Lerch based on their own individual actions; instead, the conduct is attributed

generally to “an agent,” “investigators,” or “Agents,” which is insufficient. See Iqbal, 556 U.S. at

676 (“[A] plaintiff must plead that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.”); Colbert v. City of Chicago, 851 F.3d

649, 657 (7th Cir. 2017) (“The plaintiff must demonstrate a causal connection between (1) the

sued officials and (2) the alleged misconduct.” (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869

(7th Cir. 1983))). Also, the contention that the conduct of Defendants Bennett and Lerch was

unreasonable is conclusory because it is unsupported by facts as to why their conduct—in the

execution of the warrant for the search of the Plaintiff’s home—went beyond what was necessary

for the discovery of evidence that the Plaintiff was involved in an ongoing conspiracy with

associates to distribute methamphetamine. Besides, even if the Court were to attribute to

Defendants Bennett and Lerch the tearing out of a console and breaking parts of the Plaintiff’s

truck, such conduct would not amount to unreasonable conduct in violation of the Fourth

Amendment because the Defendants would have been searching for drugs hidden in the

Plaintiff’s vehicles that were at his residence and there is no indication that the damage to the

Plaintiff’s vehicles was unnecessary for that type of search.

Accordingly, the Court dismisses the claims against Defendants Bennett and Lerch for

Fourth Amendment violations based on the warrantless search of the Plaintiff’s business

because, according to the Plaintiff, the vehicles were at his residence and the claim only pertains

to the Plaintiff’s business, the Plaintiff did not request leave to amend the Amended Complaint to

add a claim against Defendants Bennett and Lerch for excessive or unnecessary destruction of

the Plaintiff’s vehicles at his residence, and even if he had, the contentions set forth in the

Plaintiff’s response would be insufficient for stating such a claim.6

E. Opportunity to Amend and Dismissal With Prejudice

The Defendants request dismissal with prejudice by which they mean the Court should

not allow him to amend these claims. And the Plaintiff has not expressly requested an

opportunity to amend to cure these deficiencies, nor has he identified how he would cure these

deficiencies. District courts have “‘broad discretion’ to deny leave to amend, ‘where there has

been undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue

prejudice to the defendants, or where the amendment would be futile.’” Huon v. Denton, 841

F.3d 733, 745 (7th Cir. 2016) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)).

The Court finds that dismissal with prejudice of these claims is appropriate because the Plaintiff

has not shown that he can state a plausible claim for relief against these Defendants. See O’Boyle

6 Thus, the Court need not address the parties’ other arguments on the “warrantless search of the

Plaintiff’s business” claim against Defendants Bennett and Lerch.

v. Real Time Resolutions, Inc., 910 F.3d 338, 348 (7th Cir. 2018) (affirming dismissal and denial

of motion to amend because none of the proposed theories “push[ed] the original claim into the

realm of plausibility”); Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 335 (7th

Cir. 2018) (“Nothing in Rule 15, nor in any of our cases, suggests that a district court must give

leave to amend a complaint where a party does not request it or suggest to the court the ways in

which it might cure the defects. To the contrary, we have held that courts are within their

discretion to dismiss with prejudice where a party does not make such a request or showing.”).

F. Fourth Amendment Claim Against Defendants Detective Stutsman, Randy Mockler,

and Aaron Campbell—Warrantless for Search of the Plaintiff’s Business

In the April 6, 2023 screening order, the Court also granted the Plaintiff leave to proceed

against Detective Stutsman, Randy Mockler, and Indiana State Police Officer Aaron Campbell

for compensatory and punitive damages for the Plaintiff’s claim that they conducted a

warrantless search of the Plaintiff’s business in violation of the Fourth Amendment. Op. & Ord.,

ECF No. 141. In the Amended Complaint, the Plaintiff alleges that the warrantless search of the

Plaintiff’s business took place on November 2, 2016. Am. Compl. ¶ 30, ECF No 136.

Although Defendants Stutsman, Mockler, and Campbell have not moved to dismiss that

warrantless search claim, on August 14, 2023, Defendants Bennett and Lerch (along with

Defendant Lessner who moved to dismiss the Fourth Amendment claim against him for

falsifying the search warrant application) filed a Joint Motion to Dismiss [ECF No. 187],

attaching an approved warrant application for the search of the Plaintiff’s business dated

November 1, 2016, and signed by the Honorable Teresa Cataldo, Elkhart Superior Court 3,

Elkhart County, Indiana, Case No. 20D03-1611-MC-, which the Court attaches to this Order as

Attachment A. See Att. A; Def. Att. 3, ECF No. 188-3. This document indicates that the search

of the Plaintiff’s business on November 2, 2016, was not warrantless, and thus appears to negate

the Plaintiff’s Fourth Amendment claim based on a warrantless search of his business against

Defendants Stutsman, Mockler, and Campbell. As a result, it appears that summary judgment

should be entered in favor of Defendants Stutsman, Mockler, and Campbell and against the

Plaintiff.

“A district judge is authorized to grant summary judgment to a party that has not

requested it; [she] is not required to conduct a trial when there is no genuine issue of material

fact, just because the parties . . . [did not] notice the absence of any triable issues.” Hunger v.

Leininger, 15 F.3d 664, 669 (7th Cir. 1994) (citation omitted). “However, ‘granting summary

judgment sua sponte warrants special caution’ and generally requires that the party against whom

summary judgment is entered have notice and an opportunity to present its evidence.” Golden

Years Homestead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009) (citation omitted). Here,

the Court cannot consider the warrant for the search of the Plaintiff’s business to grant summary

judgment in favor of Defendants Stutsman, Mockler, and Campbell and against the Plaintiff on

the Plaintiff warrantless business search claim without giving the Plaintiff a reasonable

opportunity to respond and an opportunity to present his evidence. Because the Plaintiff is

proceeding without counsel, the Court will direct the Clerk of Court to provide the Plaintiff with

a copy of Appendix C to the Local Rules for the Northern District of Indiana (“Notice to Pro Se

Litigant”).

Based on the foregoing, the Court will set a deadline in the Conclusion of this Opinion

and Order for the Plaintiff to file a summary judgment response brief addressing why summary

judgment should not be granted for Defendants Detective Stutsman, Randy Mockler, and Indiana

State Police Officer Aaron Campbell on the claims for compensatory and punitive damages for

conducting a warrantless search of the Plaintiff’s business in violation of the Fourth Amendment

in light of the evidence of a warrant for the search.

In the alternative, the Plaintiff may file a motion to voluntarily dismiss his Fourth

Amendment claim for a warrantless search of his business against Defendants Detective

Stutsman, Randy Mockler, and Indiana State Police Officer Aaron Campbell.

The Court will also set a deadline for Defendants Detective Stutsman, Randy Mockler,

and Indiana State Police Officer Aaron Campbell to file a reply, if any, in support of summary

judgment on the Fourth Amendment claim against them for a warrantless search of the Plaintiff’s

business.

G. Conclusion

Accordingly, the Court grants the Defendants’ Joint Motion to Dismiss [ECF No. 187],

dismissing with prejudice the claims against Defendant Wayne Lessner in his individual capacity

for compensatory and punitive damages for falsifying the search warrant application and

participating in the search of the Plaintiff’s home in violation of the Fourth Amendment and

against Defendants Bayne Bennett and Kyle Lerch in their individual capacities for

compensatory and punitive damages for the Plaintiff’s claim that they conducted a warrantless

search of his business in violation of the Fourth Amendment.

The Amended Complaint remains pending only against Defendants Lt. Steve Spadafora

and Officer Sheldon Scott in their individual capacities for compensatory and punitive damages

for the Plaintiff’s claim that they participated in the search of his home and in his arrest in

violation of the Fourth Amendment and against Detective Stutsman, Randy Mockler, Indiana

State Police Officer Aaron Campbell for compensatory and punitive damages for the Plaintiff’s

claim that they conducted a warrantless search of the Plaintiff’s business in violation of the

Fourth Amendment.

Based on the dismissal of the Plaintiff’s Fourth Amendment violation claim against

Defendant Lessner for making false affidavit statements, the Court denies as moot the Plaintiff’s

Motion to Stay the Proceedings for Leave to Take Deposition of Confidential Sources [ECF No.

355], and the Plaintiff’s Motion for Subpoena(s) to Serve Discovery Request(s) Upon a Non-

Party [ECF No. 367].

Additionally, the Court will set a deadline in the Conclusion of this Opinion and Order

for the Plaintiff to file a summary judgment response brief addressing why summary judgment

should not be granted for Defendants Detective Stutsman, Randy Mockler, and Indiana State

Police Officer Aaron Campbell on the claims for compensatory and punitive damages for

conducting a warrantless search of the Plaintiff’s business in violation of the Fourth Amendment

in light of the evidence of a warrant for the search. In the alternative, the Plaintiff may file a

motion to voluntarily dismiss his Fourth Amendment claim for a warrantless search of his

business against Defendants Detective Stutsman, Randy Mockler, and Indiana State Police

Officer Aaron Campbell.

The Court will also set a deadline for Defendants Detective Stutsman, Randy Mockler,

and Indiana State Police Officer Aaron Campbell to file a reply, if any, in support of summary

judgment on the Fourth Amendment claim against them for a warrantless search of the Plaintiff’s

business. And the Court will direct the Clerk Court of Court to send the Plaintiff a copy of

Appendix C to the Local Rules for the Northern District of Indiana (“Notice to Pro Se Litigant”)

with this Opinion and Order.

MOTION FOR LEAVE TO AMEND7

The Plaintiff seeks leave to amend his Amended Complaint to identify “South Bend

Police Department SWAT Team, an unknown defendant who threw a flash-bang grenade in the

7 On March 7, 2024, the Plaintiff filed a first Verified Motion to Add Bayne Bennett as the Unknown

Defendant Who Threw a Flash Bang Device in the Presence of a Child [ECF No. 291], to which he

attached Exhibits 1–4, see ECF No. 291-1. Defendant Bayne Bennett filed a response [ECF No. 309] on

March 26, 2024, highlighting that the Plaintiff had not attached a proposed second amended complaint to

presence of a child.” Am. Compl., p. 1, ECF No. 136. Specifically, the Plaintiff requests to

identify the unknown defendant as Bayne Bennett. According to the Plaintiff, he just discovered

Bennett’s conduct through Defendant Spadafora’s answer to an interrogatory. For the reasons set

forth below, the Court denies the Plaintiff’s request.

Generally, a motion for leave to amend a pleading is evaluated under Federal Rule of

Civil Procedure 15(a)(2), as the Plaintiff suggests here. Rule 15(a)(2) provides that “[t]he court

should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “However, the rule is

in some tension with the rule that governs scheduling orders, Federal Rule of Civil Procedure

16.” Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). When the deadline for

amendment set in the scheduling order has passed, Federal Rule of Civil Procedure 16(b)(4)

“requires a party to modify the schedule before pursuing an amendment.” Sumrall v. LeSea, Inc.,

104 F.4th 622, 630 (7th Cir. 2024). The party seeking amendment must first show “good cause

for modifying the scheduling order” under Rule 16(b)(4) before the Court reaches the Rule 15

question. Id. (quoting Alioto, 561 F.3d at 720); Adams v. City of Indianapolis, 742 F.3d 720, 734

(7th Cir. 2014) (“In this situation, the district court is entitled to apply the heightened good-cause

standard of Rule16(b)(4) before considering whether the requirements of Rule 15(a)(2) were

satisfied.”); see Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and

with the judge’s consent.”).

his motion, and the Plaintiff filed a reply [ECF No. 328] on April 8, 2024. Also, on April 8, 2024, the

Plaintiff filed a second Plaintiff’s Verified Motion to Add Bayne Bennett as the Unknown Defendant

Who Threw a Flash Bang Device in the Presence of a Child [ECF No. 329], which appears to be similar

to the first motion except that attached is a proposed second amended complaint (but Exhibits 1–4 that

were included with the Plaintiff’s first motion are not attached). Given the Plaintiff’s pro se status and in

the interest of justice, the Court considers all the Exhibits included with the first motion, see Pl. Exs. 1–4,

ECF No. 291-1, when considering the second motion.

A. Consideration of the Plaintiff’s Proposed Amendment Under Rule 16(b)

The heightened good cause standard articulated in Rule 16(b)(4) “primarily considers the

diligence of the party seeking amendment” to determine whether good cause has been

established. Trustmark Ins. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005)

(citation omitted). Under Rule 16(b)(4), the burden to establish diligence is on the Plaintiff, as

the moving party. Id.

Here, the applicable scheduling order set the deadline for the amendment of pleadings for

January 17, 2023. See ECF Nos. 135, 243. The Plaintiff filed the instant Motion on March 7,

2024, and the proposed second amended complaint on April 8, 2024, over one year after the

deadline for amending pleadings expired. See ECF Nos. 291, 329. Consequently, the heightened

good cause standard applies.

The Plaintiff asserts that he discovered the identity of the unknown defendant when

Defendant Spadafora answered the Plaintiff’s interrogatories (Interrogatory No. 3) on February

20, 2024, which he received on March 1, 2024. See Pl. Ex. 1, p. 2, ECF No. 291-1; Interr. No. 3,

ECF No. 269. Defendant Spadafora stated that he “did not witness a ‘flash-bang grenade’ device

being used, and to the best of his knowledge no such device was used. [He] did witness ATF

Officer Bayne Bennett deploy a low roll distraction device immediately inside the door of the

building.” See Pl. Ex. 1, p. 2, ECF No. 291-1; Interr. No. 3, ECF No. 269.

The Plaintiff’s position is that, prior to Defendant Spadafora’s interrogatory response, he

had no idea that the search team was part of the SWAT team because Nicholas McGloughen

stated in his June 22, 2021 Affidavit that neither he nor his evidence team was present when the

SWAT team executed the search warrant and entered the Plaintiff’s residence. See Pl. Ex. 4,

¶ 13, ECF No. 291-1. In a supplementary report on the search of the Plaintiff’s residence,

McGloughen provided the last names of the members of the search team, which included

Bennett. See Pl. Ex. 3, ¶ 5, ECF No. 291-1. As a result, the Plaintiff states that he did not

question the members of the search team earlier because he did not think they were part of the

SWAT team based on McGloughen’s representations. Also, Defendant Bennett does not object

nor does he identify any prejudice from being identified as the unknown defendant who threw a

flash-bang grenade in the presence of a child.8 Accordingly, the Court finds that the Plaintiff has

met his burden to demonstrate good cause for amending the pleadings after the deadline set forth

in the applicable scheduling order.

B. Consideration of the Plaintiff’s Proposed Amendment Under Rule 15(a)

Rule 15(a) provides that a court “should freely give leave [to amend pleadings] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). Nevertheless, a court should not grant leave to

amend “where the amendment would be futile.” Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir.

2011) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)). The Court finds that

amendment would be futile for the reasons set forth below.

Here, the Plaintiff requests leave to amend his Amended Complaint to identify Bayne

Bennett as the unknown defendant who threw a flash-bang grenade in the presence of a child.

The corresponding allegations related to Bennett throwing a flash-bang grenade in the proposed

second amended complaint are:

On November 2, 2016 at approximately 6 A.M. the SWAT Team received

the command to approach and enter the residence. The SWAT Team, which

included Bennett, Scott and Lieutenant Spadafora who approved and supervised

Sheldon B. Scott to Authorized and guide the South Bend SWAT Team Unit to

execute in a military-style assault (“Dynamic Entry”) a search warrant at plaintiff’s

home (71395 Country Road 25 New Paris, IN.), traveled down the road toward the

residence, from a church that was about a quarter of a mile down the road from the

residence. About two minutes after the SWAT Team left the church, a helicopter in

the distance turned on its spotlight, illuminating the residence while SWAT officer

8 On March 6, 2024, Defendant Bennett filed a response [ECF No. 309] to the Plaintiff’s first Verified

Motion to Add Bayne Bennett as the Unknown Defendant Who Threw a Flash Bang Device in the

Presence of a Child.

forcefully gained entry without a “knock or announce” violently breaking out

windows, bashing in the front door and Bayne Bennett blindly throwing a flash-

bang grenade in the presence of a child causing injury. . . .

The Officers here, broke out a fairly large picture window and in their own

words, they “raked out the windows”, at that point it was obvious the entire living

room area was exposed, since the curtains did not completely cover the picture

window. Sadly, on the other side of that large picture window, laid a small one year

child asleep while those officers decided to throw a flash-bang grenade in her

direction. The plaintiff suffered injury to his upper right arm and was struck with

the butt end of a riffle after he was hand cuffed (zip-tied). R. O. R. suffered hearing

trauma and has had complication with a cough (asthma like symptoms) as well as

trauma directly from excessive force by the South Bend SWAT Team. R. O. R. was

not observed by SWAT Officers or by anyone who had authority rather Plaintiff’s

Mother arrived shortly after and took her to her residence not knowing what

actually took place since officers there at the scene did not allow R. O. R.’s mother

communicate too much with her Grandmother. Thereafter, the Grandmother cared

for R. O. R. witnessing many difficulties with her wellbeing and having her at

frequent health check-ups.

Proposed Sec. Amend. Compl., ¶¶ 26–27, ECF No. 329-1 (cleaned up).

Based on these proposed allegations, the Court finds that it would be futile for the

Plaintiff to identify Bennett as the unknown defendant who threw a flash-bang grenade in the

presence of a child because the corresponding claim against Bennett is based only on injuries

from the flash-bang grenade incurred by the child—whom the Plaintiff identifies as his daughter

R.O.R.—including her suffering hearing trauma, a cough, and trauma from excessive force. On

similar allegations, this Court has previously ruled, and the Seventh Circuit Court of Appeals

affirmed, that the Plaintiff may not add his daughter as a plaintiff in this case. See Dec. 12, 2022

Op. & Ord. 4, ECF No. 135 (“As this Court already ruled and as affirmed by the Court of

Appeals, Mr. Rodriguez may not add his daughter as a plaintiff.” (citing Rodriguez, 2022 WL

4534787, at *3)); Rodriguez, 2022 WL 4534787, at *3 (“Rodriguez next continues his efforts to

make his daughter a plaintiff, but the district court did not abuse its discretion by not permitting

him to join his daughter or not recruiting counsel for her.” (citing Cook County v. Texas, 37 F.4th

1335, 1341 (7th Cir. 2022))). There is nothing in the proposed allegations nor the Plaintiff’s

Motion that would prompt the Court to apply different reasoning than applied in the prior rulings

on the issue of adding the Plaintiff’s daughter as a plaintiff in this case.

C. Conclusion

Accordingly, the Court denies the Plaintiff’s request for leave to file a second amended

complaint to identify Bayne Bennett as the unknown defendant who threw a flash-bang grenade

in the presence of a child.

CONCLUSION

Based on the foregoing, the Court hereby:

(1) LIFTS the stay of these proceedings. The Court sets a deadline of September 22,

2025, for the Defendants to file a response, if any, to the motions filed while this case

was stayed, see ECF Nos. 401, 404, 405, 409, 410, 411, 412, 414, 416, 423. The

Court sets a deadline of October 20, 2025, for the movant (the Plaintiff, Maria

Rodriguez, or R.R.) of each motion at ECF Nos. 401, 404, 405, 409, 410, 411, 412,

414, 416, 423, to file a reply, if any;

(2) OVERRULES the Plaintiff’s objections in the Plaintiff’s Motion to Object to

Magistrate’s Opinion and Order of Dkt. 194 [ECF No. 200];

(3) GRANTS the Joint Motion to Dismiss [ECF No. 187] by Defendants Kyle Lerch,

Wayne Lessner, and Bayne Bennett, dismissing with prejudice the claims (a) against

Defendant Wayne Lessner in his individual capacity for compensatory and punitive

damages for falsifying the search warrant application and participating in the search

of the Plaintiff’s home in violation of the Fourth Amendment and (b) against

Defendants Bayne Bennett and Kyle Lerch in their individual capacities for

compensatory and punitive damages for the Plaintiff’s claim that they conducted a

warrantless search of his business in violation of the Fourth Amendment;

(4) NOTES that the Amended Complaint remains pending only (a) against Defendants

Lt. Steve Spadafora and Officer Sheldon Scott in their individual capacities for

compensatory and punitive damages for the Plaintiff’s claim that they participated in

the search of his home and in his arrest in violation of the Fourth Amendment and

(b) against Detective Stutsman, Randy Mockler, Indiana State Police Officer Aaron

Campbell for compensatory and punitive damages for the Plaintiff’s claim that they

conducted a warrantless search of the Plaintiff’s business in violation of the Fourth

Amendment;

(5) DIRECTS the Clerk of Court to attach to this Order Attachment A, which is a copy of

the warrant issued on November 1, 2016, for the search of the Plaintiff’s business;

(6) ORDERS the Plaintiff to FILE by September 22, 2025, a summary judgment

response brief addressing why summary judgment should not be granted for

Defendants Detective Stutsman, Randy Mockler, and Indiana State Police Officer

Aaron Campbell on the claims for compensatory and punitive damages for

conducting a warrantless search of the Plaintiff’s business in violation of the Fourth

Amendment in light of the evidence of a warrant for the search. In the alternative, by

that deadline, the Plaintiff may file a motion to voluntarily dismiss his Fourth

Amendment claim for a warrantless search of his business against Defendants

Detective Stutsman, Randy Mockler, and Aaron Campbell;

(7) ORDERS that the deadline for Defendants Detective Stutsman, Randy Mockler, and

Indiana State Police Officer Aaron Campbell to file a reply, if any, in support of

summary judgment on the Fourth Amendment claim against them for a warrantless

search of the Plaintiff’s business is October 6, 2025;

(8) DIRECTS the Clerk Court of Court to send the Plaintiff a copy of Appendix C to the

Local Rules for the Northern District of Indiana (“Notice to Pro Se Litigant”) with

this Opinion and Order;

(9) CAUTIONS the Plaintiff that if he does not file a summary judgment response brief

with an explanation by the deadline, the warrantless search claim is subject to

dismissal;

(10) DENIES as moot the Plaintiff’s Motion to Stay the Proceedings for Leave to Take

Deposition of Confidential Sources [ECF No. 355], and the Plaintiff’s Motion for

Subpoena(s) to Serve Discovery Request(s) Upon a Non-Party [ECF No. 367];

(11) DENIES as moot the Plaintiff’s first Verified Motion to Add Bayne Bennett as the

Unknown Defendant Who Threw a Flash Bang Device in the Presence of a Child

[ECF No. 291]; and

(12) DENIES the Plaintiff’s second Verified Motion to Add Bayne Bennett as the

Unknown Defendant Who Threw a Flash Bang Device in the Presence of a Child

[ECF No. 329].

SO ORDERED on August 25, 2025.

s/ Theresa L. Springmann

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT