DHANI v. HAMILTON COUNTY DRAINAGE BOARD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

HARVINDER SINGH DHANI, )

)

Plaintiff, )

)

v. ) Case No. 1:24-cv-01405-TWP-KMB

)

HAMILTON COUNTY DRAINAGE BOARD, )

CHRISTINE CRULL ALTMAN, )

MARK E HEIRBRANDT, )

KENTON C. WARD, )

MICHAEL A. HOWARD, )

STEVEN C. DILLINGER, )

)

Defendants. )

ORDER ON MOTIONS FOR JUDGMENT ON THE PLEADINGS

AND PLAINTIFF'S MOTION TO STRIKE

This matter is before the Court on a First Motion for Judgment on the Pleadings filed

pursuant to Federal Rule of Civil Procedure 12(c) by Defendants Hamilton County Drainage Board

("Drainage Board"), Christine Crull Altman ("Ms. Altman"), Mark E. Heirbrandt ("Mr.

Heirbrandt"), Steven C. Dillinger ("Mr. Dillinger"), Kenton C. Ward ("Mr. Ward"), and Michael

A. Howard ("Mr. Howard") (collectively, "Defendants") (Filing No. 11). Also pending is a Second

Motion for Judgment on the Pleadings filed by the Drainage Board (Filing No. 28), which Plaintiff

opposes and has moved to strike (Filing No. 30). Plaintiff Harvinder Singh Dhani ("Mr. Dhani")

initiated this action asserting constitutional violations under 42 U.S.C. § 1983 against Defendants

for their handling of a drainage petition submitted by Mr. Dhani's neighbor and their subsequent

removal of a berm on Mr. Dhani's property. Defendants' First Motion for Judgment on the

Pleadings asserts, among other things, a qualified immunity defense for the individual defendants

and that there were no constitutional rights violated. For the reasons explained in this Order,

Defendants' First Motion for Judgment on the Pleadings is granted, and the parties' ancillary

motions are denied.

I. BACKGROUND

The following facts are not necessarily objectively true, but as required when reviewing a

motion for judgment on the pleadings, the Court accepts as true the factual allegations in the

Amended Complaint and draws all inferences in favor of Plaintiff as the non-moving party. See

Emergency Servs. Billing Corp. v. Allstate Ins. Co., 668 F.3d 459, 464 (7th Cir. 2012).

Mr. Dhani is a longtime resident of Hamilton County, Indiana, having lived on his property

since 1995 (Filing No. 9 at 1). The Drainage Board is a municipal entity within Hamilton County

that oversees drainage systems. Id. at 2. Mr. Ward is the Hamilton County Surveyor who conducted

investigations and provided reports to the Drainage Board about the drainage issues on Mr. Dhani's

property. Id. ¶ 6. Mr. Howard is the former Drainage Board attorney who provided legal counsel

regarding an obstruction petition filed by Mr. Dhani's neighbor. Id. The remaining named

defendants, Ms. Altman, Mr. Heirbrandt, and Mr. Dillinger are members of the Drainage Board

and were present during hearings and decision-making regarding Mr. Dhani's property. Id.

For the nearly three decades that Mr. Dhani has lived on his property in Hamilton County,

he had never experienced flooding on his property prior to 2020 when a new neighbor moved to

an adjoining property. Id. at 3. After the neighbor moved in, he dug a trench on or near Mr. Dhani's

property, and the trench caused flooding on Mr. Dhani's property. Id. at 3. In 2022, Mr. Dhani

proceeded with a long-planned beautification project, which included constructing a landscaped

dirt berm1 in his backyard. Id. ¶ 11. The berm was intended to enhance Mr. Dhani's property and

provide privacy by creating a hill with trees. Id. ¶ 52. Although it was part of a plan developed

1 In landscaping, a berm is a simple rounded mound of soil (and, sometimes, fill) built upon an otherwise level patch

of land to improve the design and function of a property. https://www.thespruce.com/how-to-build-berm-4160528.

before the neighbor's trench, the berm coincidentally mitigated flooding caused by the trench. Id.

¶¶ 11, 23.

Shortly thereafter, the neighbor filed an Obstruction of Private Drainage Petition to the

Drainage Board alleging that the berm was obstructing a natural watercourse. Id. ¶ 24. As part of

the investigation into the obstruction, the Hamilton County Surveyor's Office, supervised by Mr.

Ward, prepared a report and findings, which served as a basis for the Drainage Board's findings

and decisions. Id. ¶¶ 24, 26. Mr. Dhani did not have an opportunity to participate in the

investigation or share information about the state of the land before the man-made trench was

constructed. Id. ¶ 25. The investigation relied heavily on aerial photos and observations made

during on-site inspections, for which the neighbor was present, but Mr. Dhani was not. Id. ¶ 27.

Many of the facts and findings in Mr. Ward's report were based off the report of one of the

inspectors, who was not a registered surveyor. Id. Mr. Ward did not verify whether the trench

existed before his neighbor's purchase of the property. Id. ¶ 29. The neighbor's petition centered

on the claim that Mr. Dhani's berm obstructed an "open swale" and clay tile. Id. ¶ 33. But neither

the Drainage Board nor the inspectors provided evidence of clay tile or the existence of an open

swale before the neighbor's trench was constructed. Id. ¶¶ 33–34.

Following the report by Mr. Ward, the Drainage Board conducted a hearing on December

12, 2022, where Mr. Dhani, represented by counsel, presented evidence, including a PowerPoint

presentation, photographs, history, testimony, and a letter brief explaining the unsupported nature

of the neighbors' claim. Id. ¶ 39, (Filing No. 21-3). Mr. Dhani's previous attorney submitted a

detailed legal brief to the Drainage Board setting forth reasons the neighbor's petition should be

denied and explaining why Mr. Dhani's berm did not obstruct a natural watercourse (Filing No. 9

¶ 41). During the hearing, Mr. Dhani's attorney cited to a code provision that mandates, when

reviewing an obstruction petition, the Drainage Board must determine that the removal will not

cause unreasonable damage to the land of the respondents. Ind. Code § 36-9-27.4-14.

Ultimately, the Drainage Board granted the neighbor's petition and ordered the removal of

Mr. Dhani's berm finding that it obstructed a natural watercourse (Filing No. 9 at ¶ 45). The order

also mandated restoring the land to its natural state, but the decision did not require removal of the

neighbor's trench. Id. A contractor was authorized to remove Mr. Dhani's berm and regrade the

area back to its pre-berm condition. Id. ¶ 31. The order was issued on March 13, 2023, to Mr.

Dhani's lead attorney at the time. Id. ¶ 55. Mr. Dhani and his attorney missed the deadline to file

for judicial review of the decision but filed a petition for judicial review and for injunctive relief

in June 2023, which was dismissed on June 12, 2024. Id. ¶ 56–57.

Mr. Dhani was given the option of removing the berm himself or having the Drainage

Board remove the berm at his expense on July 12, 2024. Id. ¶ 57. Due to scheduling and time

restraints, Mr. Dhani did not find a contractor, and the Drainage Board performed the removal on

July 12, 2024, without granting Mr. Dhani his requested extension of time. Id. The Drainage Board

expensed Mr. Dhani nearly $17,000.00 for the removal of the berm and sued in state court to

collect on the unpaid balance. Id. ¶ 50.

In August 2024, Mr. Dhani initiated this lawsuit and subsequently filed an Amended

Complaint in September 2024 (Filing No. 9). Defendants filed their Answer and the First Motion

for Judgment on the Pleadings (Filing No. 11) in October 2024. The Motion was fully briefed in

December 2024. Thereafter, the parties stipulated to dismiss all state law claims, and an Order of

Partial Dismissal was entered in January 2025, so the Court will address only Counts I, II, and III,

which are the remaining federal law claims (Filing No. 25).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the parties

have filed a complaint and an answer, and the pleadings are closed. Rule 12(c) motions are

analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). Pisciotta v. Old

Nat'l Bancorp., 499 F.3d 629, 633 (7th Cir. 2007); Frey v. Bank One, 91 F.3d 45, 46 (7th Cir.

1996). "Judgment on the pleadings is appropriate when there are no disputed issues of material

fact and it is clear that the moving party . . . is entitled to judgment as a matter of law." United

Here Local 1 v. Hyatt Corp., 862 F.3d 588, 595 (7th Cir. 2017). A Court deciding a motion for

judgment on the pleadings may consider only "the matters presented in the pleadings" and must

consider them in the light most favorable to the nonmovant. Id.

The pleadings "consist of the complaint, the answer, and any instruments attached as

exhibits." Hous. Auth. Risk Retention Grp. v. Chicago Hous. Auth., 378 F.3d 596, 600 (7th Cir.

2004). "Where the plaintiff moves for judgment on the pleadings, 'the motion should not be granted

unless it appears beyond doubt that the non-moving party cannot prove facts sufficient to support

his position.'" Id. (quoting All Am. Ins. v. Broeren Russo Const., 112 F. Supp. 2d 723, 728 (C.D.

Ill. 2000)); see also Redex, Inc. v. Atlanta Film Converting Co., No. 87 C 3508, 1988 WL 9075,

at *1 (N.D. Ill. Feb. 2, 1988) ("[W]hen a plaintiff moves for judgment on the pleadings, we rely

only on the facts alleged in the complaint and admitted in defendant's answer."). However, the

Court need not accept as true any legal assertions. Bishop v. Air Line Pilots Ass'n, Int'l, 900 F.3d

388, 397 (7th Cir. 2018). The Court is also "not obliged to ignore any facts set forth in the

complaint that undermine the plaintiff's claim or to assign any weight to unsupported conclusions

of law." R.J.R. Serv., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).

III. DISCUSSION

Mr. Dhani's three remaining claims against Defendants are: (Count 1) Violation of

Procedural Due Process under 42 U.S.C. § 1983; (Count II) Violation of Substantive Due Process

under 42 U.S.C. § 1983; and (Count III) Unconstitutional Taking of Property Without Just

Compensation under 42 U.S.C. § 1983 in violation of the Fifth and Fourteenth Amendments

(Filing No. 9). Defendants seek a judgment on the pleadings, asserting that Mr. Dhani's

constitutional rights were not violated and that qualified immunity protects them (Filing No. 12 at

2). Mr. Dhani responds that Defendants are not shielded by qualified immunity because they

violated constitutional principles when they disregarded procedural safeguards, ignored statutory

mandates, and engaged in arbitrary and capricious conduct resulting in damage to his property

(Filing No. 21).

Each party filed ancillary Motions after the First Motion for Judgment on the Pleadings

was fully briefed. The Court will first address the ancillary Motions and then turn to the First

Motion for Judgment on the Pleadings.

A. ANCILLARY MOTIONS

Defendants filed a Notice of Supplemental Authority (Filing No. 26), and Mr. Dhani filed

a response to Defendants' Notice (Filing No. 27). Though the Court is capable of finding relevant

caselaw, a party is permitted to direct the Court to potentially helpful authority that arose after the

close of briefing—but it may only be used to supplement briefing. See Carroll v. BMW of North

Am., LLC, 553 F.Supp.3d 588, 605 (S.D. Ind. 2021); Doe v. Upperline Health, Inc., No. 23-CV-

01261, 2024 WL 4133985, at *1 (S.D. Ind. May 21, 2024). So, the Court may consider the

supplemental authority provided in the Notice. However, a response to the Notice was not

permitted, and Mr. Dhani did not request leave to file a response. Further, in his response, Mr.

Dhani added factual allegations not in the Amended Complaint. A response cannot be used to

amend a complaint. See Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 348 (7th Cir. 2012)

The Court disregards Mr. Dhani's response to Defendants' Notice of Supplemental Authority

(Filing No. 27).

Mr. Dhani effectively invited the Second Motion for Judgment on the Pleadings with the

new allegations added in his response, so the Court denies Mr. Dhani's Motion to Strike (Filing

No. 30). The Court also denies Defendants' Second Motion for Judgment on the Pleadings, which

addresses the new Monell claim asserted by Mr. Dhani in his response (Filing No. 28).

B. PROCEDURAL DUE PROCESS CLAIM

Mr. Dhani alleges Defendants, acting under color of state law, failed to provide him with

a fair and impartial hearing and deprived him of his property rights in violation of the Fourteenth

Amendment (Filing No. 9 ¶¶ 73–74).

The Due Process Clause of the Fourteenth Amendment forbids a state from depriving any

person of "life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1. "An

essential component of a procedural due process claim is a protected property or liberty interest."

Minch v. City of Chi., 486 F.3d 294, 302 (7th Cir. 2007). "If the plaintiffs can establish such a loss,

we then must determine what process was due regarding that loss." Belcher v. Norton, 497 F.3d

742, 750 (7th Cir. 2007). In analyzing due process claims, the Court's inquiry involves two steps:

"[T]he first asks whether there exists a liberty or property interest which has been interfered with

by the State; the second examines whether the procedures attendant upon that deprivation were

constitutionally sufficient." Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir. 2005).

There is clearly a property interest that has been interfered with by the State, Mr. Dhani's

berm was removed from his land after the adjudication of a petition to the Drainage Board. To

survive Defendants' Motion for Judgment on the Pleadings, Mr. Dhani's Amended Complaint must

allege that Defendants deprived him of this interest without due process. The Court finds it does

not.

The fundamental requirement of due process is the opportunity to be heard "'at a

meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). "The basic rights guaranteed by

constitutional due process are notice of the intended adverse government action and an opportunity

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

evidence, to confront adverse witnesses, and to be represented by counsel—may apply in cases in

which vital private interests are at risk." Simpson v. Brown Cnty., 860 F.3d 1001, 1006 (7th Cir.

2017) (citing Goldberg v. Kelly, 397 U.S. 254 (1970)).

Mr. Dhani urges the Court to use the three-part Mathews balancing test to determine the

adequacy of the procedural process (Filing No. 21 at 6). However, in Mathews, the Supreme Court

held that the plaintiff was not entitled to an evidentiary hearing prior to the termination of Social

Security disability payments. 424 U.S. at 349. Mr. Dhani already received a procedural right before

the Drainage Board issued an order. The Drainage Board not only provided Mr. Dhani the "basic"

procedural rights (e.g., notice and an opportunity to be heard), but also "more elaborate" procedural

rights—the right to present evidence and the right to be represented by counsel at the December

2022 hearing. These procedural rights were all afforded to Mr. Dhani before he was deprived of

his property interest. After the hearing, there were additional procedural rights afforded to Mr.

Dhani through the judicial review process. Unfortunately for Mr. Dhani, he and his attorney missed

the deadline to file for judicial review of the decision, and because his filings were untimely, the

state court dismissed his case. Regardless, whether or not he properly availed himself of the

remedies is immaterial to this analysis.

Mr. Dhani claims evidence was disregarded or not considered, and the process was

"fundamentally flawed." (Filing No. 21 at 7). He argues that the Drainage Board should have had

safeguards in place, such as accepting his letter brief, consulting with Mr. Dhani during the

investigations, or reviewing historical evidence, which would have significantly reduced the risk

of errors in the process. Id. He further argues that the Drainage Board's failure to consider the

unreasonable damage, as required by Indiana Code § 36-9-27.4-14, demonstrates procedural

deficiencies. Id. at 8.

While a bi-partisan investigation of the property would have been preferable, due process

does not require a pre-deprivation, pre-hearing investigation at all. Due process also does not

require that the letter submitted prior to the hearing be accepted as part of the record. Mr. Dhani,

while represented by counsel, had an evidentiary hearing prior to the adjudication of the petition.

The evidence included in the letter could also have been included in the hearing PowerPoint along

with historical evidence.

Mr. Dhani alleges that his hearing was not fair and impartial because Defendants favored

testimony from the new neighbor and they did not give weight to the historical timeline of flooding

(Filing No. 9 ¶ 74). Just because Mr. Dhani does not agree with the weight the Drainage Board

gave to his testimony and evidence and does not agree with the outcome does not mean that the

process was flawed. The due process clause does not guarantee a particular result; "the federal

entitlement is to process, not to a favorable outcome." Simmons v. Gillespie, 712 F.3d 1041, 1044

(7th Cir. 2013); see also Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 321, 105 S.

Ct. 3180, 87 L. Ed. 2d 220 (1985) ("[T]he fundamental fairness of a particular procedure does not

turn on the result obtained in any individual case . . . .").

Mr. Dhani's argument that the Drainage Board "ignored the statutory requirement of Ind.

Code § 36-9-27.4-14 to deny petitions that would cause 'unreasonable damage'" is also

unpersuasive (Filing No. 21 at 10). While the Court must view the allegations most favorably to

Mr. Dhani, it need not assign any weight to unsupported conclusions of law or accept as true any

legal assertions. Mr. Dhani's Amended Complaint contains many such legal assertions (i.e.,

"Defendants acted with reckless disregard for Plaintiff's procedural rights, resulting in unfair

treatment."), which the Court need not consider (Filing No. 9 at 27). The Court need not accept

the conclusory allegation that the Drainage Board ignored a statutory requirement. The Drainage

Board has the discretion to grant or deny the petition based on its findings in a hearing. The statute

mandates that the Drainage Board find for the petitioner if after the hearing, it finds that:

(1) the obstruction of a drain or a natural surface watercourse that is alleged in the

petition exists; and

(2) the removal of the obstruction will:

(A) promote better drainage of the petitioner's land; and

(B) not cause unreasonable damage to the land of the respondents;

Ind. Code 36-9-27.4-14. It is rational for the Drainage Board to find, after its hearing, that

removing the obstruction and regrading the area back to "pre-berm condition" would not cause

unreasonable damage to Mr. Dhani's land. That Mr. Dhani did not like the result does not mean

that the Drainage Board ignored statutory requirements. Contrary to Mr. Dhani's assertion that the

law requires "focusing" on the potential damages to Mr. Dhani's land (Filing No. 9 ¶ 44), the statute

also requires the Drainage Board consider the impact on the petitioner's drainage.

Mr. Dhani cannot establish a procedural due process violation because pre-deprivation,

Defendants not only afforded him an opportunity to be heard at a meaningful time and in a

meaningful manner, but they also provided more elaborate safeguards.

C. SUBSTANTIVE DUE PROCESS

Even if the process were fair, the government action could still be barred through the

substantive due process component of the Fourteenth Amendment, which "bars certain

government actions regardless of the fairness of the procedures used to implement them." Wudtke

v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997). Mr. Dhani alleges that the Drainage Board's actions

amount to a substantive due process violation. Specifically, he argues that it accepted a "fraudulent

petition" and caused unreasonable damage to his property by ordering the removal of the berm

(Filing No. 9 at 27–28). He alleges the actions were arbitrary, capricious, an abuse of power,

fundamentally unfair, and shocking to the conscience. Id. ¶ 79. Defendants argue that there is no

conscious-shocking conduct, no fundamental rights at stake, no arbitrary or irrational conduct so

there is no substantive due process.

The United States Supreme Court has indicated that the Fifth Amendment should be the

guide for analyzing these claims rather than the "more generalized" notion of due process. Stop

the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S. 702, 721 (2010) ("The

problem with using substantive due process to do the work of the Takings Clause is that we have

held it cannot be done.") (citation modified). But for the sake of thoroughness, the Court will

address the sufficiency of the Fourteenth Amendment substantive due process argument. Mr.

Dhani does not allege conduct by Defendants that rises to the level of a substantive due process

violation. Conduct "shocking to the conscience" such that it violates substantive due process exists

in only the most "egregious" of circumstances and is reserved for "truly horrendous situations."

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). As noted by the Defendants, some

examples of conscience-shocking conduct include: stomach pumping, paddling a student, and

intentionally destroying an inmate’s property, Daniels v. Williams, 474 U.S. 327, 331 (1986); rape

committed by police officer, Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir. 2003); sheriff

disciplined employees by pointing a loaded firearm and threatening to kill them, Hawkins v.

Holloway, 316 F.3d 777, 787 (8th Cir. 2003). The Drainage Board's removal of Mr. Dhani's

constructed berm pursuant to a valid order does not rise to the level of a substantive due process

violation.

D. TAKINGS CLAUSE

The Takings Clause of the Fifth Amendment to the United States Constitution, applicable

to the States through the Fourteenth Amendment, states that "private property [shall not] be taken

for public use, without just compensation." U.S. Const. amend. V. To assert a takings claim under

the Fifth Amendment, Mr. Dhani must allege "(1) that the governmental entity 'took' his property,

either through a physical taking or through unduly onerous regulations; (2) that the taking was for

a public use; and (3) that, no matter what type of property (real or personal) was taken, the

government has not paid just compensation." Conyers v. City of Chicago, 10 F.4th 704, 710–11

(7th Cir. 2021).

Mr. Dhani alleges a regulatory taking for the first time in his response (Filing No. 21 at 6).

To qualify as a regulatory taking, the measure must place such onerous restrictions on land as to

render it "useless." Muscarello v. Ogle Cty. Bd. Of Comm'rs, 610 F.3d 416, 421 (7th Cir. 2010).

There are allegations of the economic impact on the land, but they certainly do not rise to the level

of denying Mr. Dhani "all economically beneficial or productive use of the land." Id.

The Court also concludes that Mr. Dhani fails to allege that his protected property was

turned into something for public use, as required by the takings clause. Rev v. Town of Georgetown,

No. 14-cv-00004, 2016 WL 7117181, at *4 (S.D. Ind. Dec. 7, 2016). Rather, Mr. Dhani's complaint

alleges that the Drainage Board's actions "not undertaken for any legitimate public use or purpose

but instead served the interests of a private individual." Filing No. 9 at ¶ 85. Without a taking for

public use, Mr. Dhani's takings claim fails.

E. QUALIFIED IMMUNITY DEFENSE AND MUNICIPAL LIABILITY

Defendants assert that the five individuals being sued in their individual capacity are

entitled to qualified immunity against the Fifth and Fourteenth Amendment claims asserted by Mr.

Dhani (Filing No. 12). Specifically, they argue that the individual defendants did not violate Mr.

Dhani's rights, but if they did, those rights were not clearly established, so the individual

defendants are entitled to qualified immunity. Id. at 8. Mr. Dhani responds that reasonable public

officials should have known that "disregarding procedural safeguards, arbitrarily depriving

property rights, and endorsing a private party's trespass harming one's property rights violated

constitutional principles." (Filing No. 21 at 5). Mr. Dhani cites two cases holding that qualified

immunity does not protect officials who violate clearly established rights, but he does not provide

cases analogous to Defendants' conduct here. (Filing No. 21 at 6) (citing Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The United States Supreme Court has held that if no constitutional right was violated, there

is no need for further inquiry. Saucier v. Katz, 533 U.S. 194, 201 (2001). Because the Court finds

that Defendants did not violate Mr. Dhani's constitutional rights, there is no need for additional

inquiry into the qualified immunity defense for the individual defendants. Also, Mr. Dhani did not

meet his burden that there is a clearly established right. A right is "clearly established" when it is

"'sufficiently clear that every reasonable official would have understood that what he is doing

violates that right.'" Lovett v. Herbert, 907 F.3d 986, 992 (7th Cir. 2018) (citing Mullenix v. Luna,

577 U.S. 7, 11 (2015)). He provides no analogous cases holding that the conduct here constitutes

a violation of the right at issue, and the officials' conduct here is not so "egregious" that it is

obviously a violation. Mullenix, 577 U.S. at 12; Lovett, 907 F.3d at 992 (quoting Jacobs v. City of

Chicago, 215 F.3d 758, 767).

Similarly, an entity "cannot be liable under Monell when there is no underlying

constitutional violation by" one of its employees. Gaetjens v. City of Loves Park, 4 F.4th 487, 495

(7th Cir. 2021) (internal quotation omitted). Even with an underlying constitutional violation, a

"municipality can be liable under § 1983 only 'when execution of a government's policy or custom

. . . inflicts the [constitutional] injury.'" Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019)

(quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). The three avenues a plaintiff

must proceed under Monell are "(1) an express policy that causes a constitutional deprivation when

enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom

or practice; or (3) an allegation that the constitutional injury was caused by a person with

final policymaking authority." Est. of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 515 (7th

Cir. 2007) (citation omitted). The Amended Complaint does not sufficiently allege that the

Drainage Board had an express policy, a custom or practice, or a person with final policymaking

authority, so Mr. Dhani does not adequately allege municipal liability.

F. LEAVE TO AMEND

Defendants argue that Mr. Dhani should not have another opportunity to amend his

complaint because he has previously amended his complaint, "all factual allegations are now on

the table," and "there is nothing else that Dhani could adduce to make any claims plausible." (Filing

No. 12 at 29). Leave to amend a complaint should "be freely given when justice so requires." Fed.

R. Civ. P. 15(a). Unless it is certain from the face of the complaint that any amendment would be

futile or otherwise unwarranted, the district court should grant leave to amend after granting a

motion to dismiss. Barry Aviation Inc. v. Land O'Lakes Municipal Airport Comm'n, 377 F.3d 682,

687 & n. 3 (7th Cir. 2004). That leave be "freely given" is especially advisable when such

permission is sought after the dismissal of the first complaint. /d. at 687.

Here, Mr. Dhani has already amended his Complaint once, and he did not request leave to

amend, nor did he respond to Defendants' argument on this point. Based on its analysis of the

claims raised in the Amended Complaint, and Mr. Dhani's silence, the Court finds that further

opportunities to amend would be futile. "An amendment is futile if the amended complaint would

not survive a motion for summary judgment." King ex rel. King v. E. St. Louis Sch. Dist. 189, 496

F.3d 812, 819 (7th Cir. 2007). Accordingly, the Court will not grant Mr. Dhani another opportunity

to amend his Complaint.

IV. CONCLUSION

For the foregoing reasons explained above, the Court finds no taking and no violation of

substantive or procedural due process, and Defendants’ First Motion for Judgment on the Pleadings

(Filing No. 11), is GRANTED. Mr. Dhani's Motion to Strike (Filing No. 30) is DENIED; and

Defendants’ Second Motion for Judgment on the Pleadings (Filing No. 28), is DENIED. Plaintiff

Harvinder Singh Dhani's claims are DISMISSED with prejudice, as no amount of revision could

cure their legal deficiencies.

Final judgment will issue under separate order.

SO ORDERED.

Date: _ 8/27/2025 hence atta reath

Hon. Tanya Walton Pratt, Judge

United States District Court

Southern District of Indiana

15

Distribution:

Jasbir Singh Dhani

Dhani Law LLC (Law Offices of Jasbir Dhani)

josh@dhanilaw.com

Adam Scott Willfond

Hamilton County Legal Department

adam.willfond@hamiltoncounty.in.gov