The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DALE W. ECONOMAN, et al.,
Plaintiffs,
v. Case No. 1:20-CV-32-GSL
TONDA COCKRELL, et al.,
Defendants.
OPINION AND ORDER
Background
After the Seventh Circuit issued their Mandate, at [DE 303], this Court held a Status
Conference, at [DE 310], to evaluate the state of the case. During this Conference, the parties
disagreed on various aspects of the case, including the pending claims, remaining Defendants,
and whether substitution of Defendant United States for Defendant Tonda Cockrell under the
Westfall Act was appropriate and in-effect. Given these disagreements, the Court ordered the
parties to file trial briefs on these issues. Plaintiffs filed their brief at [DE 311]. Defendant
Garrison Law Firm filed their brief at [DE 312]. Defendants United States and Cockrell filed
their brief at [DE 313].
The Court has reviewed all three briefs, in addition to its Order resolving the Motions for
Summary Judgment, [DE 225], Plaintiffs’ and Defendants’ Motions for Reconsideration, [DE
227-28; DE 229-30; DE 238], the transcript of the hearing on Defendants’ Motions for
Reconsideration on the record, [DE 239], the written Order resolving Plaintiffs’ Motion for
Reconsideration, [DE 242], and the Seventh Circuit’s Mandate following the interlocutory
appeal, [DE 303]. Having considered those materials, and the arguments contained therein, the
Court is ready to rule.
I. Substitution under the Westfall Act
On October 29, 2024, Defendant United States filed a Notice of Substitution. [DE 233].
On November 19, 2024, Plaintiffs filed their Objection to the Notice of Substitution. [DE 248].
On December 3, 2024, Defendant United States responded to Plaintiffs’ Objections. [DE 258].1
This issue was also addressed in the parties’ recently filed briefs. [DE 311- 13]. Each have been
considered and reviewed.
Legal Standard
“The Westfall Act . . . amended several provisions of the Federal Tort Claims Act to
extend immunity to federal employees from liability for tortious conduct occurring within the
scope of employment.” Reedus v. McDonough, 2024 U.S. Dist. LEXIS 230603, at *4-5 (N.D.
Ind. Dec. 18, 2024) (citing Taboas v. Mlynczak, 149 F.3d 576, 579 n.1 (7th Cir. 1998)). “When
a tort action is brought against a federal employee, the Attorney General may certify that the
employee ‘was acting within the scope of his office or employment at the time of the incident
out of which the claim arose.’” Reedus, 2024 U.S. Dist. LEXIS 230603, at *4-5 (citing Taboas,
149 F.3d at 579 n.1). See 28 U.S.C. § 2679(d)(1)); see also Evans v. United States, 132 F.4th
473, 476-477 (7th Cir. 2025). “This ‘scope certification’ by the Attorney General serves to
substitute the United States as the sole defendant.” Reedus, 2024 U.S. Dist. LEXIS 230603, at
*4-5 (citing Taboas, 149 F.3d at 579 n.1) (citation omitted).
1 Because the parties filed interlocutory appeals beginning on December 10, 2024, this Court refrained from ruling
on the Objection to the Notice of Substitution until the Mandate resolving those appeals was issued on March 6,
2026. [DE 303].
The certification creates a rebuttable presumption that the federal employee was acting
within the scope of his or her employment, but a plaintiff may challenge the
presumption. Reedus v. McDonough, 2023 U.S. Dist. LEXIS 19293, at *5-6 (N.D. Ind. Feb. 6,
2023) (citing Ezekiel v. Michel, 66 F.3d 894, 896 (7th Cir. 1995)). “[O]nce the Attorney General
certifies that a defendant employee was acting within the scope of his federal employment, the
plaintiff bears the burden of demonstrating otherwise.” Ezekiel v. Michel, 66 F.3d 894, 896 (7th
Cir. 1995). “To meet this burden of proof, the plaintiff must articulate specific facts.” Reedus,
2023 U.S. Dist. LEXIS 19293, at *5–6 (citations omitted); see also Hasbun v. U.S., 2010 U.S.
Dist. LEXIS 131591, at *6–7 (N.D. Ill. Dec. 10, 2010) (“Ultimately, the party seeking review
bears the burden of presenting evidence and disproving the Attorney General’s decision to grant
or deny scope of employment certification.”) (citations and quotations omitted).
Discussion
While objections to a notice of substitution typically require a plaintiff to “articulate
specific facts” showing the certification that a defendant employee was acting within the scope
of his or her federal employment was erroneous, here, Plaintiffs’ arguments largely focus on
other factors. First, Plaintiffs argue that the Notice is untimely because it “comes more than
1700 days after the Plaintiffs filed the Complaint.” [DE 248, Page 4]. Plaintiffs argue that a
notice for substitution may be decided on the face of the complaint or in reference to affidavits
or other evidence outside of the pleadings. [Id.]. However, Plaintiffs claim that because
Defendant United States filed its Notice long after discovery closed, they did not conduct
discovery on the question of whether Defendants Whisenand and Cockrell were acting within
the scope of their employment. [Id. at 4-5].
As an initial matter, the Westfall Act provides no time limitation on substitution. See 28
U.S.C. § 2679(d). Furthermore, Plaintiffs cannot assert that a “[notice] for substitution may be
decided on the face of the complaint,” while simultaneously complaining that they did not
conduct discovery on the topic. If the notice would have been decided on the “face of the
complaint,” then no discovery would have been conducted. Additionally, both Defendants
Whisenand and Cockrell asserted immunity under the Westfall Act in their Answers to the
Complaint. [DE 77, Page 72; DE 78, Page 71]. Plaintiffs could have conducted discovery on the
topic, but by Plaintiffs’ own assertion, they did not. Regardless, Defendant United States’
Notice is not untimely.
Additionally, Plaintiffs appear to argue that Defendant Cockrell’s time as a task force
officer, (hereafter, TFO), began in 2014 and ended in February of 2017. [DE 248, Pages 6-7].
The Westfall Act states that the certification is based on whether the defendant employee was
acting within the scope of his or her employment at the time of the incident out of which the
claim arose. 28 U.S.C. § 2679(d) (emphasis added). Here, the tort, or claim, at issue is malicious
prosecution, which Judge Lee found was premised only on the civil forfeiture proceeding. [DE
72, Pages 2-3]. Defendant Cockrell’s involvement in the civil forfeiture action was based on her
signing of the affidavit attached to the civil forfeiture complaint, filed on July 29, 2015. By
Plaintiffs’ own evidence and arguments, Defendant Cockrell was still a TFO at that point.
Therefore, whether Defendant Cockrell was a TFO after 2017 is of no relevance and does
nothing to advance Plaintiffs’ objection to the Notice of Substitution.
Plaintiffs next argue that the Notice would in effect grant Defendants Whisenand and
Cockrell “personal immunity” from the second and third claims for relief, and that those
immunity arguments are waived by “failing to raise it in the district court.” [DE 248, Page 7].
But, as discussed above, Defendants Whisenand and Cockrell did assert immunity under the
Westfall Act in their Answers to the Complaint. [DE 77, Page 72; DE 78, Page 71].
Finally, Plaintiffs argue that they will be prejudiced by the substitution of Defendant
United States for Defendant Cockrell, because those claims would then proceed under the
Federal Tort Claims Act, which does not permit a trial by jury, lacks fee-shifting, and makes
punitive damages unavailable. [DE 248, Page 9]. Plaintiffs also argue that permitting
substitution would create judgment bar issues. [Id. at 10].
Defendant United States responds that Plaintiffs have provided no caselaw that the
potential operation of the judgment bar is an appropriate ground to deny or reverse a notice of
substitution. [DE 258, Pages 18-21]. The Court, having reviewed the caselaw, agrees with
Defendant United States. The caselaw indicates that Plaintiffs’ burden is to “articulate specific
facts” showing that the certification that a defendant employee was acting within the scope of
his or her federal employment was erroneous. Reedus, 2023 U.S. Dist. LEXIS 19293, at *5–6.
Whether or not the Notice of Substitution creates prejudice does not appear to be relevant to the
analysis. Moreover, Defendant United States argues that the judgment bar issue has existed
since the origination of this lawsuit as Plaintiffs chose to assert claims against Defendant United
States and individual federal actors for claims based on the same underlying facts. [Id.].
28 U.S.C. § 2679(d)(1) provides for the automatic substitution of the United States as the
party defendant in any civil action or proceeding based upon the filing of a claim for injury or
loss of property, or personal injury or death, arising or resulting from the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of his office
or employment. 28 U.S.C. §§ 2679(b)(1); 2679(d)(1). Furthermore, § 2679(b)(1) explicitly
states that the remedy against the United States under the Federal Tort Claims Act is exclusive
of any other civil action or proceeding for money damages by reason of the same subject matter
against the employee whose act or omission gave rise to the claim. Therefore, any other civil
action or proceeding for money damages arising out of or relating to the same subject matter is
precluded without regard to when the act or omission occurred. § 2679(b)(1).
Plaintiffs sued Defendant United States under the Federal Tort Claims Act. Plaintiffs also
sued Defendants Whisenand and Cockrell, who were federal employees, for claims made up of
the same underlying facts. Accordingly, Defendant United States is correct that the judgment bar
issue exists regardless of the Notice of Substitution, because the Federal Tort Claims Act
controls Plaintiffs’ tort claim.
Conclusion
Plaintiffs have failed to meet their burden to “articulate specific facts” demonstrating that
the Attorney General’s certification was erroneous. Therefore, their objections to Defendant
United States’ Notice of Substitution are overruled and the Notice of Substitution will remain in
effect. Hereinafter, Defendant United States is substituted for Defendant Cockrell and her
liability on the malicious prosecution claim.
II. Remaining Claims
a. Malicious Prosecution2
In ruling on the Defendants’ Motions for Summary Judgment, the Court, inter alia, denied
summary judgment in favor of Defendants Garrison Law Firm and Cockrell as to Plaintiff’s claim
for malicious prosecution, and instead, granted summary judgment in favor of Plaintiffs. [DE 225].
Defendants, including Garrison Law Firm and Cockrell, filed Motions to Reconsider that ruling.
2 The malicious prosecution claim is based only on civil forfeiture proceedings. [DE 72, Pages 2, 28].
[DE 227-28; DE 229-30]. The Court held a hearing on the various motions to reconsider on
November 5, 2024. [DE 234; DE 239].
As to Defendant Cockrell, the Court held, in pertinent part, as follows:
Plaintiff filed a motion for partial summary judgment against
[D]efendant Cockrell on the malicious prosecution claim, which
was also granted. The federal defendants have moved for this Court
to reconsider that decision. The Court has reviewed the
reconsideration motion, and on that basis specifically as it relates to
defendant Cockrell, the Court denies that motion for
reconsideration. So the malicious prosecution claim against
defendant Cockrell at this time will also not proceed to trial.
[DE 239, Page 6]. Immediately following, the Court addressed its misapplication of Rule 56(f):
The basis for the reconsiderations, for the most part, were under
Rule 56(f), which the rule does note that the Court should provide
notice and opportunity to respond if, in fact, the Court is going to
grant summary judgment on behalf of a nonmoving party. I
understand that the defendants have filed motions to reconsider,
again, primarily -- notwithstanding what I have already indicated
about defendant Cockrell, have filed motions to reconsider primarily
on that basis.
…
So on the basis of the reconsideration motions, I am granting the
relief that’s requested. By doing so, there are a number of claims
then that remain outstanding. They don't change the Court’s decision
on the motions for summary judgment that were briefed and
responded to, which we have noted would not proceed to trial, but
as we see the terrain now having granted the motions to reconsider
under Rule 56(f), these are the claims that we believe remain
outstanding and ripe for trial. So to begin with, that would include
the malicious prosecution or wrongful use of civil proceeding under
Indiana state law; that would include the Fourth Amendment claim
under 42 U.S.C. § 1983; that would include the Fifth Amendment
claim under 42 U.S.C. § 1983.
[DE 239, Pages 6-8].
In reconsidering its findings on the motions for summary judgment, the Court addressed
its incorrect decision, and vacated its finding of liability on the claims that Plaintiffs did not move
for summary judgment on, including the malicious prosecution claim against Defendant Garrison
Law Firm. Defendant Cockrell’s liability on the malicious prosecution claim, however, was
reaffirmed on reconsideration. Pursuant to the Westfall Act, Defendant United States has now been
substituted in place of Defendant Cockrell. Accordingly, Defendant Cockrell’s individual liability
on the malicious prosecution claim has been imputed to Defendant United States, and the question
of Defendant Garrison Law Firm’s liability remains and will proceed to a jury trial.
Turning to the issue of damages, the FTCA requires that claims brought against the United
States “be tried to the Court without a jury.” 28 U.S.C. § 2402; Osborn v. Haley, 549 U.S. 225,
252 (2007). Unrelated to the FTCA requirements, also relevant is Indiana’s Comparative Fault
statute. Ind. Code § 34-51-2. Under the statute, the finder of fact: (1) determines whether or not
each defendant has some fault for causing plaintiffs’ economic loss; (2) if so, then determines the
total amount of damages the claimant is entitled to recover; (3) determines the percentage of fault
of each defendant and plaintiff if applicable; and (4) multiplies the total amount of damages by the
percentage of fault of each defendant to determine the amount of the verdict against each
defendant.
The FTCA requires that claims against the United States be tried to the bench. 28 U.S.C. §
2402; Osborn, 549 U.S. at 252. Accordingly, based on the plain text of the statute, the Court
understands this to mean that district courts must be the fact-finders on all issues of fact in FTCA
cases involving the United States, including damages. 28 U.S.C. § 2402. Therefore, it stands to
reason that if Defendant Garrison Law Firm is found liable on the malicious prosecution claim by
a jury, because the Defendant United States is already liable for this tort, in accordance with both
the FTCA and Indiana’s Comparative Fault statute, this Court will need to itself hold a damages
hearing to determine and apportion damages between Defendants Garrison Law Firm and United
States.3 If Defendant Garrison Law Firm is not found liable for malicious prosecution, the Court
will hold a damages hearing as it relates to Defendant United States only.
b. Plaintiff’s Fourth Amendment Claim under 28 U.S.C. § 1983
The mandate of the Seventh Circuit found that Plaintiffs’ Fourth Amendment claim under
28 U.S.C. § 1983 was “based solely on the civil forfeiture proceeding.” [DE 303-1 at 4-5].
Defendants Krug and Luttrull received absolute immunity from the Seventh Circuit. Defendant
Whisenand received qualified immunity for his acts allegedly violating the Fourth Amendment.
[DE 303-1, Page 15]. This leaves the claim live against only Defendants Garrison Law Firm and
Cockrell.4
“Section 1983 addresses only state action.” L.P. v. Marian Catholic High School, 852 F.3d
690, 697 (2017) (emphasis in original). When partially granting the Defendants’ Motions for
Reconsideration, the Court stated that the question of whether Defendants were state actors would
be decided by a jury. Upon further consideration, however, the Court must now correct course.
In light of the Seventh Circuit’s Mandate in this case, and precedent, it is clear whether an
individual or entity is acting under color of state law, while fact-specific, is a judicial
determination. See Didonato v. Panatera, 24 F.4th 1156, 1161 (7th Cir. 2022) (finding that the
district court applied the appropriate test for whether an individual is a state actor and reaching the
same conclusion); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823 (7th Cir. 2009)
3 This Court relied on the plain text of the FTCA, as it could find no analogous caselaw where a state law tort claim
proceeded simultaneously against a private defendant and against the United States via the FTCA. If the Court were
to permit a jury to determine and apportion damages for Defendant Garrison Law Firm, the jury would, as a result,
be making a finding of fact as to how liable Defendant United States is, which is not permitted under the FTCA. 28
U.S.C. § 2402; Osborn, 549 U.S. at 252.
4 For the sake of completeness, the Court notes that the § 1983 claim brought against Defendant United States was
dismissed. See [DE 72 at 30] (holding that “[Plaintiffs] cannot sue the United States under § 1983 since the United
States is not a state actor”).
(citing Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 295 (2001) (asserting
that the Supreme Court has set forth several tests for courts to employ in “evaluating the ‘range of
circumstances’ that might constitute state action.”)); Air Line Pilots Ass’n, Int’l v. Department of
Aviation, 45 F.3d 1144, 1149 (7th Cir. 1995) (Courts will find state action despite the presence of
a private party in four discernible situations.) (emphasis added). See also Eslinger v. Silence, 2026
U.S. Dist. LEXIS 77133, at *3 (C.D. Ill. Apr. 6, 2026) (citing Spiegel v. McClintic, 916 F.3d 611,
616 (7th Cir. 2019) (“… there is no basis in the Complaint upon which the Court could conclude
that these private citizen Defendants could be considered state actors for purposes of § 1983.”)
(emphasis added)); Boyko v. Parkview Hosp., Inc., 2012 U.S. Dist. LEXIS 114384, at *8 (N.D.
Ind. Aug. 14, 2012) (“Accordingly, the court must consider each of [Defendant’s] allegedly
improper acts and determine whether it was functioning as a state actor or a private actor when it
committed each act.”) (emphasis added); Johnson v. LaRabida Children’s Hosp. & Research Ctr.,
2002 U.S. Dist. LEXIS 18173, at *7 (N.D. Ill. Sept. 27, 2002) (“While the determination of
whether an individual has become a state actor is a fact-specific inquiry, the judicial methodology
for assessing those facts is well-established and compatible with the purpose of § 1983.”)
(emphasis added).
For Plaintiff’s Fourth Amendment claim to be viable, Plaintiffs “must show that the alleged
deprivation was committed by a person acting under color of state law.” L.P. v. Marian Catholic
High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). A
private person acts under color of state law when she is a “willful participant in joint action with
the State or its agents.” L.P., 852 F.3d at 696 (citing Dennis v. Sparks, 449 U.S. 24, 27 (1980)).
This requires “evidence of a concerted effort between a state actor and that individual.” Fries v.
Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152
(1970)). See Hanania v. Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000) (requiring a showing
of “a concerted effort between” a private actor and state actor and that a state actor and private
actor “reached an understanding to deprive the plaintiff of her constitutional rights”). The plaintiff
must identify a sufficient nexus between the state and the private actor to support a finding that
the deprivation committed by the private actor is “fairly attributable to the state.” L.P., 852 F.3d
at 696 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
1. Defendant Cockrell
As stated above, Plaintiffs’ Fourth Amendment claim under § 1983 is “based solely on the
civil forfeiture proceeding.” [DE 303-1 at 4-5]. Also based on the civil forfeiture proceeding is
Plaintiffs malicious prosecution claim, which Defendant United States by way of substitution has
been found liable for.5
A judgment for or against the United States, in an action under the FTCA, “shall constitute
a complete bar to any action by the claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise to the claim.” 28 U.S.C. § 2676; see
Martin v. United States, 654 Fed. Appx. 235, 238 (7th Cir. 2016). This district has held that:
“The judgment in an action under [the FTCA] shall constitute a
complete bar to any action by the claimant, by reason of the same
subject matter, against the employee of the government whose act
or omission gave rise to the claim.” 28 U.S.C. § 2676. The bar
operates regardless of whether the FTCA judgment is in favor of or
against the claimant. Hoosier Bancorp of Ind., Inc. v. Rasmussen, 90
F.3d 180, 185 (7th Cir. 1996). The bar applies equally to situations
where the government and the employee are sued in separate actions
as it does to cases where the claims are brought in the same
suit. Manning v. United States, 546 F.3d 430, 438 (7th Cir.
2008). The bar even applies retroactively to claims resolved before
5 In the Order resolving the Motions to Dismiss, Judge Lee found that Plaintiffs’ malicious prosecution claim against
Defendant Cockrell was premised only on the civil forfeiture action. [DE 72, Pages 2-3]. The mandate of the Seventh
Circuit, which this Court will follow, found that Plaintiffs’ Fourth Amendment claim under § 1983, also against
Defendant Cockrell, was “based solely on the civil forfeiture proceeding.” [DE 303-1 at 4-5].
an FTCA claim. Id. In short, the judgment bar in the FTCA is broad
and almost uniformly applied.
Bennett v. Crane, 2020 U.S. Dist. LEXIS 170034, at *1-2 (N.D. Ind. Sept. 16, 2020).
Since Defendant United States now has a finding of liability against it for malicious
prosecution, which is based on the civil forfeiture proceeding, Plaintiffs are barred, pursuant to 28
U.S.C. § 2676, from pursuing any claims based on the civil forfeiture proceeding against any
federal actor. This includes pursuing their Fourth Amendment claim against Defendant Cockrell.
28 U.S.C. § 2676.
Notwithstanding the clear judgment bar under § 2676, given the longevity of this matter,
and the amount of voluminous briefing throughout the pendency of this case, the Court finds it
necessary to detail how even if the judgment bar did not apply, Plaintiffs’ Fourth Amendment
claim would still fail against Defendant Cockrell because they simply did not meet their burden to
show that she was a state actor. Specifically, Plaintiffs had ample opportunities to address
Defendant Cockrell’s status as a state actor, including in their Memorandum in Opposition to
Defendant United States of America’s Motion to Dismiss at [DE 56], their Memorandum in
Opposition to Defendant Cockrell’s Motion to Dismiss at [DE 60], their Brief in Opposition of the
Motion for Summary Judgment at [DE 197], their Response to Defendant Cockrell’s Statement of
Material Facts in Support of their Cross-Motion for Summary Judgment at [DE 188], their
Objection and Response to Defendants’ Motions to Reconsider at [DE 238], their Objection to the
Notice of Substitution at [DE 248], and their Position Regarding Claims Remaining Pending at
[DE 311].
Starting first with Plaintiffs’ Response to Defendant United States’ Motion to Dismiss,
Plaintiffs state:
Candidly, Plaintiffs cannot begin to know at this stage of litigation
whether two members of a yet undefined “joint task force” and/or
“tactical diversion squad” conducting and pursuing a state
investigation of potential state criminal violations – and ultimately
seeking and filing a state forfeiture action, state licensure action, and
state criminal charges – will be found to be acting under the color of
state law, federal law, or both.
[DE 56, Page 21]. Plaintiffs then go on to cite caselaw, largely outside of the Seventh Circuit, and
argue that they have “specifically ple[d] that both [Defendants Cockrell and Whisenand] were
acting under color of state and/or federal law and any ultimate decision as to their capacity is
inappropriate at this time.” [DE 56, Page 24]. Instead of pointing the Court to the specific
allegations that would address the above factors, Plaintiffs continue to repeat that they simply
cannot know at this juncture whether Defendant Cockrell was a state actor. See generally [DE 56].
Moving to Plaintiffs’ Response to Defendant Cockrell’s Motion to Dismiss: Plaintiffs
assert that they alleged Defendant Cockrell acted under color of state and/or federal law at [DE
1, ¶¶ 20, 89, 91-95, 99, 104-107, 108-130]. [DE 60, Page 4]. Citing the same, sans paragraph 20,
Plaintiffs argue that they alleged Defendant Cockrell conspired to manufacture and present false
evidence for the purpose of establishing probable cause through a forfeiture action. [DE 60, page
8].
Consistent with the standard of review at the motion to dismiss stage, courts are to accept
Plaintiffs’ factual allegations as true. However, the allegations in paragraphs 91-95, 99, and 104-
107 are legal conclusions and do not address the legal tests discussed above: that a private person
acts under color of state law when she is a “willful participant in joint action with the State or its
agents,” L.P., 852 F.3d at 696 (citing Dennis, 449 U.S. at 27), which requires “evidence of
a concerted effort between a state actor and that individual” Fries, 146 F.3d at 457
(citing Adickes, 398 U.S. at 152). Similarly, paragraphs 108-130 provide additional facts, but fail
to identify who specifically Defendant Cockrell jointly acted or conspired with to deprive
Plaintiffs of their constitutional rights, oftentimes just referring to Defendants. [DE 1, ¶¶ 108-
130]. Not all of the Defendants are state actors, making these facts, even accepted as true, not
entirely helpful.
In his Order resolving Defendants Whisenand, Cockrell, and the United States’ Motions
to Dismiss, Judge Lee dismissed the Bivens claims. Accepting Plaintiffs’ allegations as true, and
“draw[ing] all reasonable inferences in favor of the non-movant,” however, Judge Lee permitted
the Section 1983 claims, premised on Defendants Whisenand and Cockrell being state actors, to
go forward, leaving open the question of whether Defendants Whisenand and Cockrell were in-
fact state actors. [DE 72]. The Court agrees with this resolution, and does not find the allegations
and arguments included in Plaintiffs’ Memorandum in Opposition to Defendant United States of
America’s Motion to Dismiss at [DE 56], and their Memorandum in Opposition to Defendant
Cockrell’s Motion to Dismiss at [DE 60], to be conclusive on the issue on Defendant Cockrell’s
status as a state actor.
Moving to their Summary Judgment briefing, Plaintiffs cite Defendant Cockrell’s
deposition where she stated that at the start of the investigation, there was no plan to prosecute
Plaintiffs federally. [DE 197, Page 18]. Plaintiffs then dedicate significant discussion to their belief
that after Defendant Whisenand took over investigation there still appeared to be no intent to bring
federal charges. However, arguments based on whether state charges would be filed have no
bearing on whether Defendant Cockrell reached an agreement, and worked in concert, with a state
actor to intentionally deprive Plaintiffs of constitutional rights.
Following this discussion on state charges, Plaintiffs also assert:
Without a doubt, Cockrell knew that she was submitting false
information in her probable cause affidavit. At every step of the way
Cockrell worked with state actors to seek a state search warrant, a
state forfeiture action, a state-sanctioned seizure, a suspension of a
state medical license, and state criminal charges.
[DE 197, Page 19]. Without citation to evidence, this assertion holds no weight. Throughout their
Response, Plaintiffs failed to cite any evidence supporting their allegations that Defendant
Cockrell “reached an understanding [with a state actor] to deprive the [P]laintiff[s] of
constitutional rights” and worked in “concerted effort” with a state actor to do so. See Hanania v.
Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000).
The Court also reviewed Plaintiffs’ Response to Defendant Cockrell’s Statement of
Material Facts in Support of their Cross-Motion for Summary Judgment. [DE 188]. While
Plaintiffs assert that Defendant Garrison Law Firm authored Defendant Cockrell’s affidavit, there
is no evidence of an agreement existing between the two to intentionally deprive Plaintiffs of their
constitutional rights using this affidavit. In fact, Plaintiffs agreed with the statement that Defendant
Garrison was drafting an affidavit for Defendant Cockrell based on her own findings and
investigation into the financial accounts:
67. As of July 29, 2015, the only information known to the Garrison
Law Firm regarding what Cockrell had done to identify the assets
subject to the Forfeiture Complaint was that she conducted a trash
pull at the Economan residence, identified where insurance
payments were made, conducted surveillance of Economan, and
gathered data from the FinCEN database. Exhibit 5, Taylor
Deposition at 73:20-25, 74:1-7, 173:10-13. Exhibit 3, Cockrell
Deposition at 157:9-18, 161:4-6, 228:24-25; Exhibit 9, Forfeiture
Complaint at Exhibit B (Cockrell Affidavit).
Response to Statement No. 67: Agree to the extent that the above is
the universe of information that GLF possessed at the time they
authored Cockrell’s affidavit, and when they filed the same with the
court…
[DE 188, Page 39].
Plaintiffs also admitted that Defendant Garrison Law Firm did not review the documents
recovered by Defendant Cockrell during the trash pull or otherwise follow up with her, or the
financial institutions identified. [DE 188, Page 40]. Moreover, Plaintiffs admitted that “Cockrell
was asked to sign her Affidavit that the Garrison Law Firm prepared…” and “Cockrell had neither
seen nor read the Cockrell affidavit or Forfeiture Complaint before July 29, 2015.” [DE 188, Page
41 ¶¶ 74-75]. This further supports the notion that Defendant Cockrell was acting alone, and had
not engaged in a concerted effort with a state actor to deprive Plaintiffs of their constitutional
rights.
Plaintiffs reassert almost identical facts in their Additional Material Facts section. Plaintiffs
state that Defendant Cockrell was asked to sign a probable cause affidavit on July 29, 2015, but
that the probable cause affidavit was written entirely by Defendant Garrison Law Firm. [DE 188,
Page 114 ¶¶ 363-65; Page 122 ¶ 412]. Plaintiffs even state that Defendant Garrison Law Firm has
no recollection of ever even speaking to Defendant Cockrell about her affidavit before drafting it
or asking her to sign it. [DE 188, Page 122 ¶¶ 413-14]. Defendant Cockrell, in her Reply, did not
dispute these facts. [DE 213, Pages 104-105, 121-22].
Plaintiffs also assert that Defendant Krug directed Defendant Cockrell as to the
investigation, but provide no additional facts or details on Defendant Krug’s direction or
relationship with Defendant Cockrell. [DE 188, Page 132 ¶ 466]. Simply put, there is no
evidence in Plaintiffs’ Response to Defendant Cockrell’s Statement of Material Fact that
supports a finding that she worked in concert with any state actor to deprive Plaintiffs of their
constitutional rights.
Plaintiffs’ next opportunity to argue state actor status was within their Objection and
Response to Defendants’ Motion for Reconsideration, which was filed after the Court found that
the issue of state actor status would proceed to trial. However, Plaintiffs did not address the Court’s
decision to send the issue of state actor status to trial. [DE 238].
Plaintiffs’ then had the opportunity to argue state actor status within their Objection to the
Notice of Substitution at [DE 248]. Recall that Plaintiffs’ burden was to “articulate specific facts”
demonstrating that the Attorney General’s certification that Defendant Cockrell was acting within
the scope of her federal employment at the time the tort occurred was erroneous. Plaintiffs devoted
very little of their brief to discussing Defendant Cockrell’s status as a state or federal actor, and
instead, focused on other factors. Plaintiffs state that “neither party conducted serious discovery
concerning the question of whether Whisenand and Cockrell were acting within the scope of their
employment. And serious questions persist on that subject…”. [DE 248, page 5].
Plaintiffs pled that Defendant Cockrell was a state actor for the purposes of their § 1983
claims, and were on notice that Defendant Cockrell was proceeding on a theory that she was acting
in her federal employment when she answered the Complaint and asserted Westfall Act immunity.
While the inquiries for whether an individual is a state or federal actor, and whether an individual
is acting in their state or federal employment for purposes of the Westfall Act are not identical, the
facts underlying each certainly overlap. “[S]erious discovery” on Defendant Cockrell’s actions and
employment may have provided insight and, more importantly, evidence as to whether Defendant
Cockrell was a state actor, and was a “willful participant in joint action with the State or its
agents” which requires “evidence of a concerted effort between a state actor and that individual.”
L.P., 852 F.3d at 696 (citing Dennis v. Sparks, 449 U.S. 24, 27 (1980)); Fries v. Helsper, 146 F.3d
452, 457 (7th Cir. 1998) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970)). Plaintiffs
failure to conduct “serious discovery” hamstrings them. [DE 248, page 5].
Finally, Plaintiffs filed their Position Regarding Claims Remaining Pending and Matters
for Trial Following Remand. [DE 311]. But Plaintiffs still did not address the issue of Defendant
Cockrell’s status as a state actor, albeit having a section dedicated to: “Fourth Amendment / § 1983
Claims against Defendant Cockrell.” [DE 311, Page 5].
Having reviewed the voluminous filings by Plaintiffs, this Court was unable to find
evidence that Defendant Cockrell was acting under color of state law when she signed the probable
cause affidavit which was ultimately attached to the civil forfeiture complaint. While Judge Lee
permitted the Section 1983 claims, premised on Defendant Cockrell being a state actor, to survive
the motion to dismiss stage, here, Plaintiffs have provided no evidence to support that theory. See
[DE 72]. If Defendant Cockrell cannot be considered a state actor, then the § 1983 claim against
her fails. However, this point is moot, because of the mandatory application of the judgment bar
under the FTCA, which prevents the Fourth Amendment claim from proceeding against Defendant
Cockrell.
2. Defendant Garrison Law Firm
Finally, the court must address Defendant Garrison Law Firm and its status as a state actor
for the purposes of the Fourth Amendment claim. Here again, Plaintiffs must show that Defendant
Garrison Law Firm was acting under color of law. As discussed above, a private person
acts under color of state law when she is a “willful participant in joint action with the State or its
agents.” L.P., 852 F.3d at 696 (citing Dennis, 449 U.S. at 27). This requires “evidence of
a concerted effort between a state actor and that individual.” Fries v. Helsper, 146 F.3d 452, 457
(7th Cir. 1998) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970)). Another test, the
traditional and exclusive public function test, finds de facto state action when a private actor
performs a function traditionally reserved to the state and only to the state. Mahoney v. Beacon
Health Ventures, 585 F. Supp. 3d 1161, 1168 (N.D. Ind. 2022) (citing Manhattan Cmty. Access
Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019)); Jackson v. Metro. Edison Co., 419 U.S. 345, 354
(1974). A court applying this test must focus on the specific conduct of which the plaintiff
complains. Mahoney, 585 F. Supp. 3d at 1168 (citing Blum v. Yaretsky, 457 U.S. 991, 1004,
(1982)).
The conduct that Plaintiffs complain of involves Defendant Garrison Law Firm’s actions
to institute and maintain a civil forfeiture action against them. In Indiana, civil forfeiture actions
typically proceed under either the general forfeiture statute in Indiana Code chapter 34-24-1, or
the Racketeering Forfeiture Statute in Indiana Code chapter 34-24-2. Abbott v. State, 183 N.E.3d
1074, 1079 (Ind. 2022). Because they are an application of Indiana statutory law, these are cases
traditionally brought by the state against private citizens. However, in this case, Defendant
Garrison Law Firm asserted in their Statement of Material Facts that they contracted with multiple
Indiana counties, including Grant County and its Prosecutor’s Office, to handle civil racketeering
and forfeiture cases. [DE 189, Page 8 ¶ 29]. Defendant Garrison Law Firm entered into an
agreement with the Prosecuting Attorney for Grant County in 2007. [DE 189, Pages 8-9 ¶¶ 33-34].
Plaintiffs admitted these statements. [DE 189, Pages 8-9 ¶¶ 29, 33-34].
James Garrison testified that whenever a potential civil forfeiture or racketeering case arose
that Defendant Garrison Law Firm may handle, he was alerted one of two ways.
If it’s already our client, we have a relationship with their
investigative branch. Those cops got our numbers. They’ll call us
and ask us what we think about this as a civil case. For those that
have not been our clients, therefore, oftentimes -- well, almost
always we hear from either the chief deputy or the prosecutor of the
county asking us if we would be interested in looking at a case for
them and giving them some opinions on whether it was worth going
forward with.
[DE 187-51, Page 35:21-36:13]. To summarize, law enforcement or prosecutors would call
Defendant Garrison Law Firm directly, as if it were an arm of the government, to ask if the firm
would pursue a case on behalf of the state. James Garrison also testified that if a civil forfeiture or
racketeering case that Defendant Garrison Law Firm handled would go up on appeal, the Indiana
Attorney General’s Office would handle it. [DE 187-51, Pages 42:22-43:1]. The Indiana Attorney
General’s Office does not handle appeals on cases brought by private attorneys, but instead,
handles appeals on cases brought by their staff or other state actors.
These facts sufficiently show Defendant Garrison Law Firm is taking de facto state action
by performing a function traditionally reserved to the state by bringing lawsuits to freeze or
confiscate the assets of private citizens. Mahoney, 585 F. Supp. 3d at 1168 (citing Manhattan
Cmty. Access Corp., 139 S. Ct. at 1928).
While this Court has determined that Defendant Garrison Law Firm is a state actor, the
question of qualified immunity remains. The Seventh Circuit made several findings as to
Defendant Garrison Law’s assertion of qualified immunity.
Garrison contends that preparing an affidavit for a civil forfeiture
without knowing it contained false information does not violate a
clearly established right. Key to Garrison’s argument is the
assumption that it was ignorant of any false information in the
Cockrell Affidavit. But this fact is heavily disputed, leading us to
conclude we lack jurisdiction over Garrison’s appeal challenging the
district court’s denial of qualified immunity of Economan’s Fourth
Amendment Claim.
…
But viewing the record in Economan’s favor, a jury could
reasonably conclude that Garrison knew or should have known the
affidavit contained material misstatements.
[DE 303, Page 16]. For this reason, the question of whether Defendant Garrison Law Firm was
aware of the false information in the Cockrell Affidavit, which controls whether they are entitled
to qualified immunity, will proceed to a jury.
In conclusion, the Fourth Amendment claim will proceed only against Defendant Garrison
Law Firm.
c. Failure to Intervene
In their Position Regarding Claims Remaining Pending and Matters for Trial Following
Remand, Plaintiffs identify four paragraphs in the Complaint where they argue a failure to
intervene claim was pled against Defendants Cockrell, Whisenand, Garrison Law Firm, and “all
Defendants generally.” [DE 311, page 6]. Those paragraphs are: 94, 97, 102, and 118 of the
Complaint. [DE 1]. Paragraphs 94, 97, 102, and 118 are in a section entitled “Legal Claims”.
[Id.]. This section has general allegations. See [DE 1 ¶ ¶ 89-103]. After these general allegations,
Plaintiffs identify each claim they seek to bring and against each Defendant.
Paragraph 94 reads:
Additionally, Cockrell failed to intervene in a knowing violation of
the Plaintiffs’ constitutional rights, conspired with state and federal
officials to deprive Plaintiffs of their property without probable
cause, engaged in a malicious prosecution of the Plaintiffs, violated
the Plaintiffs’ right to due process, and knowingly or intentionally
abused the process through which forfeitures are allowed in the state
of Indiana.
[DE 1, Page 17 ¶ 94]. While each of the other allegations included in that paragraph –conspiracy,
malicious prosecution, violations of the fifth amendment, and abuse of process– exist either as
their own claim or are explicitly called out under one of the claims, the failure to intervene
allegation is not, and instead, is only included as a supporting allegation of the malicious
prosecution claim.
The same is true of Paragraph 97, discussing Defendant Whisenand’s actions.
Additionally, he failed to intervene in a knowing violation of the
Plaintiffs’ constitutional rights, conspired with state and federal
officials to deprive Plaintiffs of their property without probable
cause, engaged in a malicious prosecution of the Plaintiffs, and
knowingly or intentionally abused the process through which
forfeitures are allowed in the state of Indiana.
[DE 1, Page 18 ¶ 97]. Again, while conspiracy, malicious prosecution, and abuse of process all
are listed as discrete claims, failure to intervene is not. Therefore, the Court is not persuaded that
these paragraphs are evidence that Plaintiffs alleged a failure to intervene claim.
Paragraph 102 is slightly different from the above two paragraphs, as it appears to be a
legal conclusion, stating:
Finally, Plaintiffs allege that the Grant County Prosecutor, the
Garrison Law Firm LLC, and the Medicaid Fraud and Control Unit
of the Office of the Indiana Attorney General, acting under the color
of Indiana law, each jointly and individually failed to intervene in a
knowing violation of Plaintiffs’ constitutional right(s).
[DE 1, Page 19 ¶ 102].
Finally, Paragraph 118, included under “Second Claim for Relief, Malicious Prosecution”
states:
Defendants acted with malice in continuing criminal proceedings
against Dr. Economan and each jointly and individually failed to
intervene or terminating the proceedings after becoming aware of
the misconduct and violation of Plaintiffs’ constitutional rights.
[DE 1, Page 22 ¶ 118]. Because Plaintiffs explicitly discuss “failure to intervene” as a supporting
allegation under the malicious prosecution claim, the Court is unconvinced Plaintiffs meant to
allege a stand-alone failure to intervene under § 1983. The Seventh Circuit has consistently
recognized “that a state actor’s failure to intervene in the violation of another’s constitutional
rights may render him liable under Section 1983.” Bey v. City of Chicago, 2022 U.S. Dist.
LEXIS 83803, at *11 (N.D. Ill. May 10, 2022). E.g., Patrick v. City of Chi., 213 F. Supp. 3d
1033, 1053 (N.D. Ill. 2016) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994); Byrd v.
Brishke, 466 F.2d 6, 11 (7th Cir. 1972)). Here, under Plaintiffs’ “First Claim for Relief,
Deprivation of Federal Civil Rights Under 42 U.S.C. § 1983” they state, “[a]ll of the
aforementioned acts deprived Plaintiffs of the rights, privileges and immunities guaranteed to
citizens of the United States by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States of America, and in violation of 42 U.S.C. §1983.” [DE 1, Page
20 ¶ 106]. Failure to intervene is not included in that list. This is further evidence that Plaintiffs
did not intend to bring a failure to intervene claim under § 1983.
While Plaintiffs provide a litany of allegations preceding paragraph 118, it is not clear
which violations of Plaintiffs’ constitutional rights Defendants failed to intervene on. Therefore,
the court is hard-pressed to find any allegations in the Complaint sufficient to state a failure to
intervene claim against any Defendant.
Plaintiffs also point to various filings which they allege show Defendants acknowledged
the failure to intervene claim. Plaintiffs argue that Defendants Cockrell and Whisenand’s
Motions to Dismiss, and Plaintiffs’ Responses to those Motions, discuss the failure to intervene
claim. However, as was made in clear in Judge Lee’s order resolving the Motions, Defendants
Cockrell and Whisenand did so in the context of Bivens claims, which were dismissed, so the
Court does not find this to be evidence that a non-Bivens failure to intervene claim is still live.
[DE 72, Page 2].
Plaintiffs argue that pages 19-20 of Defendant United States’ Motion for Summary
Judgment discusses the failure to intervene claim, but that is not true. See [DE 171, Pages 19-20].
Defendant United States’ Motion references paragraph 97 in the Complaint not in the context of
a failure to intervene claim, but in the context of the abuse of process claim. The same is true of
Defendant Cockrell’s Motion for Summary Judgment, [DE 178, Page 21], and of Defendant
Whisenand’s Motion for Summary Judgment, [DE 175, Page 20]. Plaintiffs cite their Responses
to both Motions where they footnote that Defendants did not move or summary judgment on the
failure to intervene claims, but because Defendants referenced only a single paragraph allegation
from the Complaint in the context of the abuse of process claim, it does not appear, to this Court,
that they were ever on notice that a failure to intervene claim was being advanced.
Furthermore, Plaintiffs point out that Defendant Garrison Law Firm includes the phrase
“failure to intervene” in their Reply to Plaintiffs’ Response during Summary Judgment Briefing.
But the full quote in Defendant Garrison Law Firm’s Reply to Plaintiffs’ Response reads “GLF’s
malice may be inferred by the creation and admission of a false affidavit, the omissions of
critical and exculpatory evidence, the failure to intervene, failure to conduct an adequate
investigation and the general timeline of legal causes instituted against Dr. Economan…”. [DE
207, Page 3]. This is not discussion of a stand-alone failure to intervene claim, but instead, of
Defendant Garrison Law Firm summarizing the ways in which Plaintiffs are attempting to show
malice. Tellingly, nowhere have Plaintiffs argued that “the omissions of critical and exculpatory
evidence” and “failure to conduct an adequate investigation” are stand-alone claims that too have
gone unaddressed.
Based on the Court’s discussion above, the Court remains unconvinced that a failure to
intervene claim was appropriately pled, and would have put Defendants, and this Court, on
notice of the claim. For all of the foregoing reasons, no failure to intervene claim was
appropriately pled.
d. Conspiracy under Section 1985
This Court granted Defendants Luttrull, Krug, and Garrison Law Firm’s Motions for
Summary Judgment on the Section 1985(3) conspiracy claim. This was because the Court found:
The function of Section 1985(3) is to “permit recovery from a
private actor who has conspired with state actors.” Florance v.
Barnett, 2023 U.S. App. LEXIS 28382, *6 (quoting Fairley v.
Andrews, 578 F.3d 518, 526 (7th Cir. 2009)). When Section 1985
claims brought against state defendants, who can be sued directly
under Section 1983, the Section 1985 claims are “superfluous.”
Florance v. Barnett, 2023 U.S. App. LEXIS 28382, *6 (7th Cir. Oct.
25, 2023); Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009).
Judge Lee dismissed the Section 1985 claims against Defendants
Cockrell, Whisenand, and the USA. [DE 72, page 50]. This leaves
only Defendants Luttrull, Krug, and Garrison Law Firm. All three
actors have been found to be state actors, making relief under
Section 1985 duplicative of the relief available under Section 1983.
See Dewar v. Felmon, 847 Fed. Appx. 356, 357 (7th Cir. 2021)
(affirming dismissal of Section 1985 claims when Section 1983
claims are brought against state actors).
[DE 225, Page 32].
Plaintiffs now argue that the “§ 1985 claims that are no longer ‘duplicative of the relief’
granted under Section 1983 will proceed to a jury trial.” [DE 311, Page 10]. This is misguided.
First, regardless of the reason, the Court granted Defendants’ Motions for Summary Judgment on
that Count; this claim does not come back to life absent an explicit reconsideration or similar
order from this Court. Notably, Plaintiffs did not file a Motion for Reconsideration on the
Section 1985 conspiracy claim. See [DE 238]. Accordingly, the Court reiterated that the Section
1985 conspiracy claim was no longer live during its status conference on November 5, 2024.
…[D]efendants filed motions for summary judgment on the
following claims which were granted: The abuse of process under
Indiana state law, that was granted; violations of the Eighth
Amendment under 42 U.S.C. § 1983, that was granted; violations of
the Fourteenth Amendment under 42 U.S.C. § 1983, which was
granted; violations of the Fourteenth Amendment as applied to
Indiana Code 34-24-2-1, which was granted; and conspiracy under
section 1985, which was granted. So all of those motions for
summary judgment filed by the various defendants were granted.
The plaintiff did not file a motion to reconsider any of those claims;
so at this time those claims would not proceed to trial.
[DE 239, Pages 5-6]. Nor does the conspiracy claim come back to life due to the findings of the
Seventh Circuit which Plaintiffs believe make the relief under Section 1985(3) “no longer
duplicative,” especially when (1) Plaintiffs did not appeal to the Seventh Circuit on those
grounds, (2) the Seventh Circuit made no such pronouncement in their Mandate, and (3)
Plaintiffs offer no caselaw or evidence in support of this contention. The Court is unpersuaded
that the Section 1985(3) conspiracy claim is live.
Notwithstanding the Court’s position that the Section 1985(3) conspiracy claim is not
live, because Judge Lee dismissed the Section 1985 conspiracy claim against Defendants
Cockrell, Whisenand, and United States, the claim only proceeded against Defendants Luttrull,
Krug, and Garrison Law Firm at summary judgment. [DE 72, page 50]. The Seventh Circuit
awarded Defendants Luttrull and Krug “absolute immunity on any and all claims against them.”
[DE 303, Page 18]. The Seventh Circuit explicitly instructed that their award of absolute
immunity was “not to be revisited on remand.” [Id.]. That leaves only Defendant Garrison Law
Firm. Section 1985(3) provides a remedy when “two or more persons in any state or Territory
conspire . . . for the purpose of depriving either directly or indirectly, any person or class of
persons of the equal protection of the laws.” 42 U.S.C. § 1985(3)). With all other Defendants out,
there is no other defendant that Defendant Garrison Law Firm could have conspired with.
Therefore, for each of the reasons elucidated above, the Section 1985(3) conspiracy claim
remains resolved and will not proceed to any trial.
Conclusion
For the foregoing reasons, the Court holds that:
• Defendant United States has been found liable for malicious prosecution. The
malicious prosecution claim will proceed to a jury trial against Defendant Garrison
Law Firm on the issue of liability. If Defendant Garrison Law Firm is found to be
liable, they will proceed to a joint damages trial with Defendant United States, where
damages and apportionment of those damages will be determined by the bench. If
Defendant Garrison Law Firm is not found liable at their jury trial, only Defendant
United States will proceed to a bench trial on the issue of damages;
• The Fourth Amendment claim, based on the civil forfeiture proceeding, will proceed
to a jury trial against Defendant Garrison Law Firm only. The jury will also
determine the outstanding question relating to qualified immunity, which, as
described by the Seventh Circuit, is whether Defendant Garrison Law Firm was
ignorant of any false information in the Cockrell Affidavit;
• The Fourth Amendment claim against Defendant Cockrell is dismissed pursuant to 28
U.S.C. § 2676;
• There is no failure to intervene claim against any Defendant in the Complaint;
• All Section 1985 conspiracy claims have been previously resolved and therefore will
not proceed to any trial, bench or jury.
SO ORDERED.
ENTERED: June 26, 2026
/s/ GRETCHEN S. LUND
Judge
United States District Court