USDC IN/ND Case: 1:17-cv-124 As of: 07/17/2020 12:54 PM EDT 1 of 7 BRIGHT−LN,CLASS
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Fort Wayne)
CIVIL DOCKET FOR CASE #: 1:17−cv−00124−DRL

Buroff et al v. Gladieux Assigned to: Judge Damon R Leichty Cause: 42:1983 Prisoner Civil Rights Mediator C Erik Chickedantz Plaintiff Demetrius Buroff individually and on behalf of all others similarly situated TERMINATED: 11/14/2017
Plaintiff Ian Barnhart individually and on behalf of all others similarly situated

Date Filed: 03/27/2017 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Christopher C Myers Christopher C Myers & Associates 809 S Calhoun St Ste 400 Fort Wayne, IN 46802 260−424−0600 Fax: 260−424−0712 Email: cmyers@myers−law.com TERMINATED: 11/14/2017
David W Frank Neighborhood Christian Legal Clinic − FW/IN 347 W Berry St Ste 101 Fort Wayne, IN 46802 260−456−8972 Fax: 260−456−8983 Email: dfrank@nclegalclinic.org TERMINATED: 11/14/2017
represented by Christopher C Myers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W Frank (See above for address) TERMINATED: 07/12/2019 LEAD ATTORNEY

V.
Defendant
David Gladieux in his official capacity

represented by J Spencer Feighner Haller & Colvin PC 444 E Main St Fort Wayne, IN 46802−1910 260−426−0444 Fax: 260−422−0274 Email: jsf@hallercolvin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John O Feighner Haller & Colvin PC 444 E Main St Fort Wayne, IN 46802−1910

USDC IN/ND Case: 1:17-cv-124

As of: 07/17/2020 12:54 PM EDT 2 of 7 260−426−0444 Fax: 260−422−0274 Email: jfeighner@hallercolvin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/27/2017
03/27/2017 03/28/2017 03/28/2017 03/28/2017 03/28/2017 04/12/2017 04/24/2017
04/25/2017
05/01/2017
05/10/2017 05/23/2017 05/25/2017 05/25/2017 05/25/2017

# Docket Text
1 CLASS ACTION COMPLAINT with JURY DEMAND against David Gladieux, filed by Demetrius Buroff. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons 285)(Frank, David) Modified on 4/10/2017 to correct title (lns). (Entered: 03/27/2017)
Judge Jon E DeGuilio and Magistrate Judge Susan L Collins added. *NEW CASE* (jss) (Entered: 03/28/2017)
2 MOTION to Certify Class by Plaintiff Demetrius Buroff. (Frank, David) (Entered: 03/28/2017)
3 MOTION for Leave to Proceed in forma pauperis accompanied by 1 copies of summons forms and 1 copies of USM−285 forms by Plaintiff Demetrius Buroff. (Frank, David) (Entered: 03/28/2017)
4 INCOMPLETE PDF ATTACHED. THIS DOCKET ENTRY IS REPLACED BY DOCKET ENTRY #6. MOTION for Discovery Early by Plaintiff Demetrius Buroff. (Frank, David) Modified on 4/12/2017 (lns). (Entered: 03/28/2017)
5 NOTICE of Appearance by Christopher C Myers on behalf of Demetrius Buroff (Myers, Christopher) (Entered: 03/28/2017)
6 MOTION for Discovery Early by Plaintiff Demetrius Buroff. (Attachments: # 1 Exhibit Exhibit A (Interrogatories))(Frank, David) Modified on 4/12/2017 − this docket entry REPLACES docket entry #4 (lns). (Entered: 04/12/2017)
7 ORDER GRANTS 3 Motion for Leave to Proceed in forma pauperis; DEFERS payment of the filing fee; ORDERS the plaintiff to pay the $400.00 filing fee from the proceeds of any recovery that is received in this case; and DIRECTS, pursuant to 28 U.S.C. § 1915(d), the United States Marshals Service to effect service of process on the defendant. Signed by Judge Jon E DeGuilio on 4/24/2017. (cc: USMS) (lhc) (Entered: 04/25/2017)
8 Summons Issued as to David Gladieux. NOTE:The attached document is accessible by court personnel only. Summons forms that were electronically submitted to the court for issuance will be returned to counsel via e−mail. (cc: USMS) (lhc) (Entered: 04/25/2017)
9 ORDER REASSIGNING CASE. Case reassigned to Chief Judge Theresa L Springmann for all further proceedings. Judge Jon E DeGuilio no longer assigned to case. Magistrate Consent forms due by 5/22/2017. Signed by Chief Judge Theresa L Springmann on 5/1/2017. (rmc) (Entered: 05/01/2017)
10 SUMMONS Returned Executed by USMS obo Demetrius Buroff. David Gladieux served on 5/3/2017, answer due 5/24/2017. (lhc) (Entered: 05/10/2017)
11 First MOTION to Amend/Correct 2 MOTION to Certify Class , 1 Complaint by Plaintiff Demetrius Buroff. (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit Amended Motion)(Frank, David) (Entered: 05/23/2017)
12 NOTICE of Appearance by J Spencer Feighner on behalf of David Gladieux (Feighner, J) (Entered: 05/25/2017)
13 NOTICE of Appearance by John O Feighner on behalf of David Gladieux (Feighner, John) (Entered: 05/25/2017)
14 NOTICE of Hearing: Hearing on Pla's 6 Motion for Early Discovery and Rule 16 Preliminary Pretrial Conference set for 6/6/2017 at 9:00 AM in US District Court − Fort Wayne before Magistrate Judge Susan L Collins. Counsel to appear in person.(mr) (Entered: 05/25/2017)

05/25U/2S0D17C IN1/N5 DMCAaGseIS:T1R:1A7T-EcvJ-U1D2G4E CAOsNoSf:E0N7T/1F7O/R20M2S0s1en2t:t5o4alPl MparEtieDsT(Sta3ndoafrd7Track).. (mr) (Entered: 05/25/2017)

05/30/2017 16 REPORT of Rule 26(f) Planning Meeting. (Frank, David) (Entered: 05/30/2017)

06/06/2017

17 RULE 16 PRELIMINARY PRETRIAL CONFERENCE held on 6/6/2017 before Magistrate Judge Susan Collins. Pla appeared by Atty David Frank. Dft appeared by Atty Spencer Feighner. Pla's unopposed 6 Motion for Early Discovery and 11 Pla's Motion for Leave to File First Amended Class Action Complaint and First Amended Motion for Class Certification is granted. Pla directed to file First Amended Class Action Complaint and Motion to Certify forthwith. The 16 Report of the Parties Planning Meeting is approved in all respects (except dispositive motions deadline and establishment of a trial date) and is hereby made an ORDER of the Court. The Summary Judgment deadline in Fed.R.Civ.P. 56(b) SHALL NOT control. Any dispositive motion SHALL brief out in accordance with L.R. 56−1. DISCOVERY DEADLINE is 3/24/2018. Following the close of discovery, unless otherwise ordered by the Court, the assigned District Judge will establish all further deadlines and dates. Erik Chickedantz appointed as Mediator. Atty Frank to notify Mediator by letter, copy to Atty Feighner. Results of the Mediation shall be filed with the Court no later than 10 days before the Final Pretrial Conference. Magistrate Consent forms due by 6/27/2017. (FTR 1st floor.) (mr) (Entered: 06/06/2017)

06/06/2017 18 AMENDED COMPLAINT against David Gladieux, filed by Demetrius Buroff.(Frank, David) (Entered: 06/06/2017)

06/06/2017 19 Amended MOTION to Certify Class by Plaintiff Demetrius Buroff. (Frank, David) (Entered: 06/06/2017)

06/20/2017

20 AGREED NOTICE to extend time to file response to 19 Amended MOTION to Certify Class by Plaintiff Demetrius Buroff; response due by August 21, 2017. (Feighner, J) Modified on 6/20/2017 to correct docket text and regenerated NEF at attorney's request (lhc). (Entered: 06/20/2017)

06/28/2017 21 ANSWER to 18 Amended Complaint and Affirmative Defenses by David Gladieux.(Feighner, J) (Entered: 06/28/2017)

07/13/2017 22 MOTION for Extension of Time to Amend Pleadings by Plaintiffs Ian Barnhart, Demetrius Buroff. (Frank, David) (Entered: 07/13/2017)

07/14/2017

23 ENTRY for Magistrate Judge Susan Collins: 22 Pls' Unopposed Motion for Extension of Deadline is granted. Pls granted to and including 8/11/2017 to seek leave to amend pleadings or join additional parties. The Court sua sponte extends Dft's deadline to seek leave to amend the pleadings to 9/11/2017. So Ordered. (mr) (Entered: 07/14/2017)

07/27/2017

24 MOTION to Supplement 18 Amended Complaint, 19 Amended MOTION to Certify Class by Plaintiffs Ian Barnhart, Demetrius Buroff. (Attachments: # 1 Exhibit Def. Admissions, # 2 Exhibit 11/08/16 ACJ Population, # 3 Exhibit Election Board Response)(Frank, David) (Entered: 07/27/2017)

07/28/2017

25 ORDER DENYING 24 MOTION to Supplement 18 Amended Complaint, 19 Amended MOTION to Certify Class by Plaintiffs Ian Barnhart, Demetrius Buroff. Signed by Magistrate Judge Susan L Collins on 7/28/2017. (lhc) (Entered: 07/28/2017)

07/31/2017

26 MOTION to Amend/Correct 1 Complaint by Plaintiffs Ian Barnhart, Demetrius Buroff. (Attachments: # 1 Exhibit Second Amended Complaint, # 2 Exhibit Compl. Ex. A − Jail Rules, # 3 Exhibit Compl. Ex. B − Inmate Petition, # 4 Exhibit Compl. Ex. C − Def. Admissions, # 5 Exhibit Compl. Ex. D − 11/08/2016 Jail Population, # 6 Exhibit Compl. Ex. E − Election Board Response)(Frank, David) (Entered: 07/31/2017)

08/15/2017

27 ORDER: The Court GRANTS Plaintiffs' 26 Motion to Amend. The Clerk is DIRECTED to show Plaintiffs' Second Amended Class Action Complaint and its Exhibits as filed. Signed by Magistrate Judge Susan L Collins on 8/15/2017. (jss) (Entered: 08/15/2017)

08/15/2017 28 SECOND AMENDED COMPLAINT against David Gladieux, filed by Ian Barnhart, Demetrius Buroff. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4

USDC IN/ND Case: 1:17-cv-124 As of: 07/17/2020 12:54 PM EDT 4 of 7 Exhibit D, # 5 Exhibit E)(jss) (Entered: 08/15/2017)

08/21/2017 29 RESPONSE to Motion re 19 Amended MOTION to Certify Class filed by David Gladieux. (Attachments: # 1 Exhibit A)(Feighner, J) (Entered: 08/21/2017)

08/23/2017 30 REPLY to Response to Motion re 19 Amended MOTION to Certify Class filed by Ian Barnhart, Demetrius Buroff. (Frank, David) (Entered: 08/23/2017)

09/18/2017

31 ORDER DEEMING MOOT 2 MOTION to Certify Class by Plaintiff Demetrius Buroff. Signed by Chief Judge Theresa L Springmann on 9/18/17. (cer) (Entered: 09/18/2017)

11/13/2017

32 OPINION AND ORDER DENYING 19 Motion to Certify Class WITH LEAVE TO REFILE and DISMISSES Plaintiff Demetrius Buroff. Signed by Chief Judge Theresa L Springmann on 11/13/17. (mlc) Modified on 11/14/2017 to edit text (mlc). (Entered: 11/14/2017)

01/04/2018

33 First MOTION to Compel by Plaintiff Ian Barnhart. (Attachments: # 1 Exhibit Discovery Request, # 2 Exhibit 37.1 Letter, # 3 Exhibit 37.1 Letter, # 4 Exhibit 37.1 E−mail, # 5 Exhibit Certification)(Frank, David) (Entered: 01/04/2018)

01/18/2018 34 NOTICE by David Gladieux re 33 First MOTION to Compel Resolution of Discovery Dispute (Feighner, J) (Entered: 01/18/2018)

01/19/2018

35 ORDER for Magistrate Judge Susan Collins: 33 Plaintiff's Motion to Compel Discovery is deemed moot pursuant to the 34 Notice to Court of Resolution of Discovery Dispute. Text entry order. (mr) (Entered: 01/19/2018)

03/07/2018

36 Second MOTION to Certify Class by Plaintiff Ian Barnhart. (Attachments: # 1 Exhibit Defendant's Policies, # 2 Exhibit Inmate Petition, # 3 Exhibit Defendant's Admissions, # 4 Exhibit Inmate Population Report, # 5 Exhibit Voter Board Response, # 6 Exhibit Inmate Voter Registration Report)(Frank, David) (Entered: 03/07/2018)

03/07/2018 37 BRIEF in Support of 36 Second MOTION to Certify Class filed by Ian Barnhart. (Frank, David) (Entered: 03/07/2018)

03/21/2018

38 RESPONSE to Motion re 36 Second MOTION to Certify Class filed by David Gladieux. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Feighner, J) (Entered: 03/21/2018)

03/28/2018

39 REPLY to Response to Motion re 36 Second MOTION to Certify Class filed by Ian Barnhart. (Attachments: # 1 Exhibit Ex. G − Putative Class Members)(Frank, David) (Entered: 03/28/2018)

04/03/2018

40 NOTICE: Because the discovery period in this case has now concluded and there are no pending non−dispositive motions, the referral to Magistrate Judge Susan L Collins is now terminated. All further matters will now be handled by Chief Judge Theresa L Springmann unless otherwise directed. This entry constitutes the court's order on this matter and shall carry the same weight and authority as a written order signed by the judge. (mr) (Entered: 04/03/2018)

05/17/2018

41 OPINION AND ORDER: GRANTING 36 Second MOTION to Certify Class by Plaintiff Ian Barnhart. The Court appoints Christopher C. Myers & Associates as Class Counsel. Signed by Chief Judge Theresa L Springmann on 5/17/2018. (lhc) (Entered: 05/18/2018)

05/21/2018

42 ORDER FOR CHIEF JUDGE THERESA L SPRINGMANN: Dispositive motions to be filed by 7/23/2018 and to be briefed in accordance with Local District Rules pursuant to the 40 Bright Line Notice. In the alternative, parties may jointly request trial date by written notice on or before 6/22/2018. (cer) (Entered: 05/21/2018)

07/23/2018

43 MOTION for Partial Summary Judgment by Defendant David Gladieux. (Attachments: # 1 Exhibit A − Affidavit of Voter Registration, # 2 Exhibit B − Affidavit of John Zagelemeier, # 3 Exhibit C − Response to Request for Admissions)(Feighner, J) (Entered: 07/23/2018)

07/23/2018 44 MEMORANDUM in Support of 43 MOTION for Partial Summary Judgment filed by David Gladieux. (Feighner, J) (Entered: 07/23/2018)

08/20U/2S0D18C IN4/N5 DRCEaSsPeO:N1S:1E7to-cMv-o1ti2o4n reA4s3 oMf:O0T7IO/1N7/f2or0P2a0rt1ia2l :S5u4mPmMaryEJDudTgm5enot ffi7led by Ian Barnhart. (Attachments: # 1 Affidavit Addison Affidavit, # 2 Affidavit Clemens Affidavit, # 3 Affidavit Collins Affidavit, # 4 Affidavit Cooper Affidavit, # 5 Affidavit Drake Affidavit, # 6 Affidavit Foote Affidavit, # 7 Affidavit Jones Affidavit, # 8 Affidavit Lash Affidavit, # 9 Affidavit Lewis Affidavit, # 10 Affidavit Long Affidavit, # 11 Affidavit Mattingly Affidavit, # 12 Affidavit Moore Affidavit, # 13 Affidavit Perkins Affidavit, # 14 Affidavit Thomas Affidavit, # 15 Affidavit Tuttle Affidavit)(Frank, David) (Entered: 08/20/2018)

08/20/2018 46 BRIEF in Opposition to 43 MOTION for Partial Summary Judgment filed by Ian Barnhart. (Frank, David) (Entered: 08/20/2018)

09/04/2018 47 REPLY to Response to Motion re 43 MOTION for Partial Summary Judgment filed by David Gladieux. (Feighner, J) (Entered: 09/04/2018)

09/07/2018

48 MOTION for Leave to File Sur−Response in Opposition to Defendant's Partial Motion for Summary Judgement by Plaintiff Ian Barnhart. (Attachments: # 1 Exhibit Plaintiffs' Sur−Response in Opposition to Defendant's Partial Motion for Summary Judgement, # 2 Affidavit James Davis, # 3 Affidavit Frederick Neel, # 4 Affidavit Artavius Richards, # 5 Affidavit Mylinque Wallace, # 6 Affidavit Nike−Shail White, # 7 Affidavit Jerry Williamson)(Frank, David) (Entered: 09/07/2018)

09/25/2018

49 ORDER FOR CHIEF JUDGE THERESA L SPRINGMANN: The Court being duly advised GRANTS Pla's 48 Motion for Leave to File Sur−Response in Opposition to Partial Motion for Summary Judgment. Pla's Sur−Response to be filed by 10/2/2018. (cer) (Entered: 09/25/2018)

09/27/2018

50 RESPONSE to Motion re 43 MOTION for Partial Summary Judgment Sur−Response filed by Ian Barnhart. (Attachments: # 1 Affidavit James Davis, # 2 Affidavit Frederick Neel, # 3 Affidavit Artavius Richards, # 4 Affidavit Mylinque Wallace, # 5 Affidavit Nike−Shail White, # 6 Affidavit Jerry Williamson)(Frank, David) (Entered: 09/27/2018)

03/04/2019

51 Letter from Mediator C Erik Chickedantz advising that mediation was suspended and a second mediation will be scheduled following the Court's ruling on Dft's pending motion for summary judgment. (lns) (Entered: 03/05/2019)

04/03/2019

52 OPINION and ORDER GRANTING 43 Motion for Partial Summary Judgment. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the claims of Class Members incarcerated in the Allen County Jail on or before October 31, 2016. The claims of the Class Members incarcerated in the Allen County Jail after that date remain pending. Signed by Chief Judge Theresa L Springmann on 4/3/2019. (nae) Modified on 4/4/2019 to correct docket text (nae). (Entered: 04/03/2019)

04/05/2019

53 ORDER FOR CHIEF JUDGE THERESA L SPRINGMANN: Telephonic Trial Scheduling Conference SET for 5/23/2019 at 10:30 AM (INDIANA EASTERN TIME) in US District Court − Fort Wayne before Chief Judge Theresa L Springmann. Court will initiate call.(cer) (Entered: 04/05/2019)

05/01/2019

54 ORDER REASSIGNING CASE. Case reassigned to Judge Holly A Brady for all further proceedings. Chief Judge Theresa L Springmann no longer assigned to case. Signed by Chief Judge Theresa L Springmann on 5/1/19. (rs) (Entered: 05/01/2019)

05/10/2019

55 ORDER REASSIGNING CASE. Case reassigned to Judge William C Lee for all further proceedings. Judge Holly A Brady no longer assigned to case. Signed by Judge Holly A Brady on 5/10/19. (cer) (Entered: 05/10/2019)

05/13/2019

56 ORDER OF RECUSAL. Judge William C Lee recused. Case reassigned to Chief Judge Theresa L Springmann for all further proceedings. Signed by Judge William C Lee on 5/13/2019. (lns) (Entered: 05/13/2019)

05/13/2019

57 ORDER FOR CHIEF JUDGE THERESA L SPRINGMANNSA: On the Court's own motion due to a scheduling conflict the Telephonic Scheduling Conference set for 5/23/2019 is VACATED and RESET to 5/29/2019 12:00 PM (EASTERN TIME) in US District Court − Fort Wayne before Chief Judge Theresa L Springmann. Court to initiate the call. (rs) (Entered: 05/13/2019)

05/29U/2S0D19C IN5/N8 DTCEaLsEeP:H1O:1N7IC-cSvT-1A2T4USACsOoNfF: E0R7E/1N7C/2E0h2e0ld1o2n:55/429P/2M01E9,DbTefor6e Cohf i7ef Judge Theresa L Springmann. Pla appeared by atty Christopher Myers. Dft appeared by atty J Spencer Feighner. Parties advise as to case status. Rule 23 Notice to be filed within 30 days. Dft to file an agreed proposed schedule by 8/26/2019 COB. Telephonic Status Conference SET for 9/16/2019 02:00 PM (EASTERN TIME) in US District Court − Fort Wayne before Chief Judge Theresa L Springmann. Court to initiate the call. (FTR) (rs) (Entered: 05/29/2019)

06/28/2019 59 Joint MOTION for Extension of Time to File Rule 23 Notice by Plaintiff Ian Barnhart. (Myers, Christopher) (Entered: 06/28/2019)

07/01/2019

60 ORDER FOR CHIEF JUDGE THERESA L SPRINGMANN. The Court being duly advised GRANTS 59 Joint MOTION for Extension of Time to File Rule 23 Notice. Rule 23 Notice to be filed by 7/8/2019. (rs) (Entered: 07/01/2019)

07/08/2019 61 NOTICE by Ian Barnhart Submission of Draft Rule 23 Notice (Attachments: # 1 Exhibit 1 (Draft Rule 23 Notice))(Myers, Christopher) (Entered: 07/08/2019)

07/09/2019 62 MOTION to Withdraw as Attorney by Plaintiff Ian Barnhart. (Frank, David) (Entered: 07/09/2019)

07/12/2019

63 ORDER FOR CHIEF JUDGE THERESA L SPRINGMANN. The Court being duly advised GRANTS 62 MOTION to Withdraw as Attorney. Attorney David Frank is WITHDRAWN as counsel of record for Pla Ian Barnhart. (rs) (Entered: 07/12/2019)

08/26/2019 64 NOTICE by David Gladieux Proposed Schedule (Feighner, J) (Entered: 08/26/2019)

09/04/2019

65 ORDER REASSIGNING CASE. Case reassigned to Judge Damon R Leichty for all further proceedings. Chief Judge Theresa L Springmann no longer assigned to case. Signed by Chief Judge Theresa L Springmann on 9/4/19. (ksc) (Entered: 09/04/2019)

09/13/2019

66 NOTICE: Telephonic Status Conference set for 9/16/2019 02:00 PM (EST) in US District Court − South Bend before Judge Damon R Leichty. Counsel must provide the court with contact information for the conference by contacting the Courtroom Deputy, DeAndra Kirkwood at 574−246−8110. Use of a cell phone is prohibited and any speaker function should be disabled to avoid the courtrooms acoustical problems and to allow the court reporter to accurately record the proceedings. (dk) (Entered: 09/13/2019)

09/16/2019

67 TELEPHONE CONFERENCE held on 9/16/2019 before Judge Damon R Leichty. Pla appeared by atty C. Myers. Dft appeared by atty S. Feighner. After discussions, the court established future deadlines and hearings. Written order to follow. (Court Reporter D. Bonk.) (dk) (Entered: 09/16/2019)

09/17/2019

68 MEMORANDUM OF STATUS CONFERENCE AND ORDER CONCERNING PRETRIAL CONFERENCE AND TRIAL: Mr. Feighner is directed to prepare and file the proposed joint final pretrial order by 05/05/2020. A final pretrial conference is SET for 05/19/2020 at 1:15 PM and a 5−day jury trial to commence at 9:30 AM on 06/08/2020 in the third−floor courtroom in South Bend, Indiana. In addition, the Court ORDERS Mr. Myers to file a revised draft Fed. R. Civ. P. 23 notice ( 61 ) by 09/18/2019 and also to submit a Word copy to chambers via email. After receiving it, the Court will approve the Rule 23 notice on or before 09/20/2019. The notice is to be distributed to class members by 10/04/2019 via First Class mail and publication in local newspapers. Class members must opt out by 01/03/2020, if they wish to not be bound by the judgment of this case and in accordance with the notice. Signed by Judge Damon R Leichty on 09/17/2019. (jat) (Entered: 09/18/2019)

09/18/2019 69 NOTICE by Ian Barnhart Revised Submission of Rule 23 Notice (Myers, Christopher) (Entered: 09/18/2019)

09/19/2019

70 ORDER ON RULE 23 NOTICE APPROVING 61 Rule 23 Notice filed by Ian Barnhart.The parties are ORDERED to begin distribution of said notice. Pursuant to the courts prior order (ECF 68), the notice is to be distributed to class members by October 4, 2019 via First Class mail and publication in local newspapers. Class members must opt out by January 3, 2020 if they wish not to be bound by the judgment of this case. Signed by Judge Damon R Leichty on 9/19/19. (mlc) (Entered: 09/20/2019)

04/13U/2S0D20C IN7/N1 DOCRaDsEeR: :1P:1ur7s-ucavn-t1to24GenAersaloOf:rd0e7r/21072/02−01200, 51−2d:a5y4JuPryMTEriDalTis R7ESoEf T7 for 9/14/2020 09:30 AM (EST) in US District Court − South Bend before Judge Damon R Leichty. Final Pretrial Conference RESET for 8/27/2020 01:30 PM (EST) in US District Court − South Bend before Judge Damon R Leichty. Text−only order by Judge Damon R Leichty on 4/13/2020. (dk) (Entered: 04/13/2020)

 
 USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 1 of 13

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DEMETRIUS BUROFF,

)

individually and on behalf of all others

)

similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

DAVID GLADIEUX,

)

in his official capacity,

)

)

Defendant.

)

CASE NO.

CLASS ACTION COMPLAINT

Plaintiff, Demetrius Buroff, individually and on behalf of all others similarly situated,

alleges as follows against Defendant, David Gladieux:

I. NATURE OF ACTION

1. Defendant systematically disenfranchised hundreds of eligible voters held in the Allen

County Jail during the 2016 general election by refusing to provide them absentee ballots

or alternative access to the polls. 1

2. Defendant's acts violated the fundamental rights of these individuals under the Fourteenth

Amendment to the United States Constitution.2

3. Plaintiff, and members of the class, bring this action for damages pursuant to 42 U.S.C . §

1983.

1 See O 'Brien v. Skinner, 414 U.S. 524,530 (1974) (Individuals held in a county jail who are "not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote" are under "a restriction which is so severe as itself to constitute an unconstitutionally onerous burden." (citation and internal quotes omitted). See also U.S. v. Olinger, 759 F.2d 1293, 1304-05 (7th Cir. 1985). 2 Burdick v. Takushi, 504 U.S. 428, 433 (1992) (The right to vote "is of the most fundamental significance under our constitutional structure.").

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 2 of 13
II. PARTIES 4. Plaintiff is Demetrius Buroff. Plaintiff is a U.S. citizen, resident of Allen County, Indiana,
and over eighteen years old. Plaintiff was held as a pretrial detainee on misdemeanor criminal charges in the Allen County Jail from on or about October 31 , 2016 to on or about December 15, 2016. 3 Plaintiff was eligible to vote and not serving a felony criminal sentence while held in the Allen County Jail. 5. Defendant is Allen County Sheriff David Gladieux. Defendant Gladieux operates the Allen County Jail in Allen County, Indiana and is responsible for all policies, practices, customs, and procedures concerning inmates' access to absentee ballots, transportation to an appropriate voting center during times of election, or alternative means ofaccessing the polls. Defendant Gladieux has a non-delegable duty to ensure the fundamental voting rights of detainees and inmates in the jail are not systematically violated. Defendant Gladieux is named in his official capacity for all claims.
III. CLASS ACTION ALLEGATIONS 6. Plaintiff as proposed representative of the putative class brings this action pursuant to
Federal Civil Rule of Procedure 23(a) and (b)(3) on behalf of himself and all others similarly situated as a members of the following proposed class:
All individuals held at the Allen County Jail on November 8, 2016 who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to register to vote while held in the Allen County Jail.
3 State ofIndiana v. Demetrius Buroff, Case No. 02D06-l61 0-CM-004222 (Allen Co., Ind. Super. Ct. fi led Oct. 31 , 2016).
2

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 3 of 13
7. The class is so numerous that individual joinder of all class members is impracticable. Fed. R. Civ. P. 23(a)(1). On November 8, 2016, hundreds of eligible voters in the Allen County Jail were denied all means to cast a ballot in the general election.
8. There are questions of law and fact common to the class. Fed. R. Civ. P. 23(a)(2). The questions oflaw and fact common to all class members include but are not limited to: a. Whether Defendant legally barred eligible voters held in the Allen County Jail all means of casting a ballot in the 2016 general election; and b. Whether Defendant caused eligible voters held in the Allen County Jail harm when he denied them all means of casting a ballot in the 2016 general election.
9. Plaintiffs claims are typical of the claims of the class. Fed. R. Civ. P. 23(a)(3). 10. Plaintiff will fairly and adequately protect the interests of the class. Fed. R. Civ. P.
23(a)(4). There are no conflicts between Plaintiff and class members. Plaintiff and his counsel, Christopher C. Myers & Associates, will vigorously and competently prosecute the case on behalf of the class. 11. Questions of law and fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The matters pertinent to these findings include: the class members' interest in collectively prosecuting this action; the desirability of concentrating the litigation of the claims in this forum; and the effectiveness of prosecuting these claims as a class action. 12. There is continuing and substantial public interest in these matters.4
4 See 0 'Brien, 4 14 U.S. at 533 (Marshall, J., concurring) (Denial of "absentee ballots is effectively an absolute denial of the franchise to these appellants" where a defendant " is both physically preventing appellants from going
3

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 4 of 13
IV. FACTS A. Plaintiff and Members of Class had the Right to Vote in the 2016 General Election 13. Plaintiff and members ofthe putative class had the right to vote in the 2016 general election
despite being held in the Allen County Jail. 14. Under the U.S. constitution and state law, and as applied by state law, an incarcerated
individual otherwise eligible to vote is not deprived of the right to suffrage unless he is serving a sentence for a felony crime. See Ind. Const. Art. 2, Sec. 1-2, 8; Ind. Code §§ 37-13-4-6. 15. Approximately 600 to 700 individuals are incarcerated at the Allen County Jail at any given time. Ofthose, more than three-fourths are pretrial detainees not serving a sentence for a felony crime. Of the approximately one-fourth of individuals actually serving a criminal sentence, the majority of those are serving a sentence for a misdemeanor, not a felony cnme. 16. The great majority of the hundreds of individuals incarcerated at the Allen County Jail on November 8, 2016, therefore, unless otherwise legally restricted, were eligible to vote in the 2016 general election.
B. Events Leading to Disenfranchisement in the 2016 General Election 17. Between October and November 2016, Defendant repeatedly and systematically through
his policy, practice, procedure, or custom, or failure to supervise and train his employees, denied eligible individuals held in the Allen County Jail the opportunity to vote in the 2016 general election.
to the polls and denying them alternative means of casting their ballots."). 4

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 5 of 13
18. On October 12,2016, in-person early voting began in Allen County. 19. Between October 12, 2016 and November 7, 2016, early voting center locations in Allen
County included the lobby of the Allen County Election Board, located approximately one square block from the Allen County Jail. 20. Between October 12, 2016 and November 7, 2016, further, voters were also able to vote by absentee ballot through mail. 21. On October 20, 2016, voting for voters confined by disability or other impairment began. These voters were eligible to vote at their place of confinement. 22. On October 29, 2016, hours for in-person early voting at voting centers, including the lobby of the Allen County Election approximately one square block from the Allen County Jail, were expanded to seven hours per day. 23. On November 8, 2016, the 2016 general election was held. 24. However, inmates at the Allen County Jail during this period were not at any time permitted to vote by any of these methods. C. Plaintiff and Members of the Class Were Disenfranchised in the 2016 General Election 25. Between October and November 2016, Defendant repeatedly and systematically through his policy or failure to supervise and train his employees denied eligible individuals held in the Allen County Jail the opportunity to vote in the 2016 general election. 26. Defendant did so by refusing to provide Plaintiff and class members transportation or accommodations for in-person voting or absentee ballot voting by which to cast their votes. 27. Plaintiff and class members could not themselves vote in-person because they were confined by Defendant in jail. 28. Plaintiff and class members could not petition the court to release them temporarily from
5

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 6 of 13
jail to vote or by their own initiative research how to obtain materials for voting by absentee ballot because Defendant provides the individuals he confines no access to a law library or legal research materials.s 29. Defendant's policy specifically and directly disenfranchised Plaintiffhimself. 30. On or about October 31, 2016, Plaintiff was confined in the Allen County Jail as a pretrial detainee on the accusation of misdemeanor criminal charges. Plaintiff was indigent and unable to pay the bond to be released. 31. After entering the Allen County Jail, Plaintiff noticed a posted copy of Defendant's "Inmate Rights & Privileges Per Classification & Discipline: As Established in the Indiana Jail Standards Guidelines and the Allen County Jail Policy and Procedures." 32. These jail procedures posted by Defendant state: "An inmate shall be entitled to vote by absentee ballot upon meeting voter's registration requirements under the Law of the State of Indiana, as long as the inmate is not serving a sentence upon conviction of felony." (emphasis added). A copy of these procedures are attached and incorporated into this Complaint as Exhibit A. 33 . Further, the Indiana Jail Standards referred to and incorporated in Defendant's jail procedures provide that the "sheriff shall make arrangements with election officials to facilitate an inmate's right to vote by absentee ballot provided that the inmate is otherwise qualified to vote." 210 Ind. Admin. Code 3-1-lS(f) (emphasis added). 34. Accordingly, relying on Defendant's affirmative written procedures, Plaintiff and other class members requested absentee ballots from Defendant's jail officers in order to vote in
5 See Ward eta!. v. Gladieux, Case No. 1: 16-cv-00043-PPS-SLC (N.D. Ind). 6

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 7 of 13
the 20 16 general election. 35. However, the requests of Plaintiff and other class members were denied. 36. In fact, Defendant provided no absentee ballots whatsoever for any inmate's use in the
2016 general election and did not remedy his denial of suffrage to Plaintiff and class members by facilitating their ability to vote in-person at the voting center one block from the jail. 37. While still being detained, the majority of Plaintiff's housing block identified themselves class members aggrieved by Defendant's voter policy. A list of these more than thirty individuals and their signatures is attached and incorporated into this Complaint as Exhibit B. 38. As a result ofDefendant's policies, acts, and omissions, Plaintiff and class members were disenfranchised and suffered serious harm.
V. CLAIMS FOR RELIEF FUNDAMENTAL RIGHT TO VOTE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION 39. Under the Fourteenth Amendment to the U.S . Constitution, the "right to vote" may not be "denied" or "or in any way abridged." 40. The right to vote is fundamental. 6 41 . The right to vote may not be abridged without due process of law and may not be discriminatorily denied to a class of individuals, including eligible voters detained in a
6 See Purcell v. Gonzalez, 549 U. S. 1, 3-4 (2006); Cook v. Gra/ike, 531 U.S. 510, 524 (200 1); Goosby v. Osser, 409 U.S. 512, 519 (1973); Storer v. Brown , 41 5 U.S. 724, 730 (1972); Evans v. Cornman , 398 U.S. 419, 422 (1970); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 62 1, 627 (1969); Smiley v. Holm, 285 U.S. 355, 366 (1932); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
7

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 8 of 13
county jail. 42. However, Defendant's policies, acts, customs, procedures, omissions, and/or failure to
train and supervise his employees so discriminatorily violated the fundamental rights of Plaintiff and class members. 43. Defendant abridged these individuals' fundamental rights without a compelling interest narrowly tailored to meet a governmental interest and absent the least restrict means of achieving any such objectives.? 44. Further, no valid, neutral, or rational connection existed between Defendant's ban and any legitimate governmental interest; no alternative means aside from those sought existed for the exercise of class members' rights; accommodating class members ' fundamental rights would have had only a limited impact on prison management and resources; and the obvious alternative of allowing for absentee voting or brief and structured in-person voting would have been obvious alternatives to outright denying inmates their fundamental right to vote. 45. Administrative inconvenience is not justification for denial of the fundamental right to vote. 8 46. Defendant's acts and omissions caused emotional distress, mental anguish, and other injury to Plaintiff and class members.
VI. PRAYER FOR RELIEF Wherefore, Plaintiff respectfully requests the Court: A. Certify the class as defined;
7 Hmper v. Va. Bd. ofElections, 383 U.S. 663 , 670 (1966). 8 Tay lor v. Louisiana, 419 U.S. 522, 535 (1975).
8

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 9 of 13
B. Declare him prevailing party; C. Award compensatory damages;9 D. Award legal costs, attorneys' fees, and expert witness fees pursuant to 52 U.S.C §
10310(e) and42 U.S.C. § 1988; and E. Grant all other just and proper relief.
JURY DEMAND Plaintiff demands a trial by jury pursuant to Rule 38(b) of the Federal Rules of Civil Procedure.
Respectfully, CHRISTOPHER C. MYERS & ASSOCIATES
Is/ David W. Frank David W. Frank, #3 1615-02 Christopher C. Myers, # l0043-02 809 South Calhoun Street, Suite 400 Fort Wayne, IN 46802-2307 Telephone: (260) 424-0600 Facsimile: (260) 424-0712 E-mail: dfrank@myers-law.com Counsel for Plaintiff, Mr. Demetrius Buroff
DFI
9 Carey v. Piphus, 435 U.S. 247, 264 n.22 (1978) (U.S. Supreme Court decisions in voting rights actions "support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote."); see also Memphis Community School District v. Stachura, 477 U.S. 299,314-15 (1986) (Marshall, J ., concurring).
9

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 1 filed 03/27/17 page 10 of 13
5. An incident discipline reports, which may become a part of the inmate' s records. 6. Transfer to the Indiana Department of Corrections for safekeeping . 7. Reassignment to a different credit time class under IC.35-60-6-4. 8. Deprivation of earned credit time under IC.35-50-6-5 .

INMATE RIGHTS & ESTABLI SHED IN

PRIVILEDGES PER CLASSIFICATION & DISCIPLNE: AS THE INDIANA JAIL STANDARDS GUIDELINES AND THE

ALLEN COUNTY JAIL POLICY AND PROCEDURES

1. Th e right to vote :

a. An inmate shall be entitled to vote by abs entee ball ot upon meeting voter's registration requirements under the Law of the State of Indiana, as long as the inmate is not serving a sentence upon conviction of a felony.
2. The right to visitation :

a. Bi-weekly visitation is offered , but not guaranteed. b. Visito rs must be eighteen (18) years of age or older. Proper id entification (State
Issued) is required.

3. Telephone privileges :

a. Phone time shall be allotted equally.
b. Phone calls may be monitored and I or recorded .
4. The right to h ave an attorney.

a. Attorneys may visit for case discussion in accordance with Jail Procedures . 5. Th e right to fi le a written grievance:

( .a.

Inmates having a grievance may submit it in writing, on an inmate requ est form to Class ification, Discipline, Jail Operations Captain, Jail Commander, Appeals Officer and the Sheriff, in that order.

ti. Th e right to appear in court, (for trail, etc.). 7. Work Releas e Program : Forms are available from Block Officers to request consideration
for the Work Release Program.

MAIL

1. Outgoing mail will not be inspected, censored, delayed, withheld , or otherwise interfered with except upon suspicion, based upon an investigation by Jail Staff or through reliable information, that the Jail Security & Safety to other inmates or Jail Personnel may be endangered.
2. There is no limit to th e number of letters an inmate may send from thi s fa ci lity at his I her
own expense. 3. There will be no written correspo ndence between inmates within the Facility, and the
Sheriff my restrict correspondence b etween inmates in this Facility and those in any other Penal Institution. 4. There is no restriction on th e numbers of letters and inmate may receive. 5. In coming m ai l is expected to have a return address . Mail will be sent back t o the Pos t Office w hich contain no compl ete return address .

EXHIBIT
tA

6

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 USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 1 of 11

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DEMETRIUS BUROFF and

)

IAN BARNHART,

)

individually and on behalf of all others )

similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

DAVID GLADIEUX,

)

in his official capacity,

)

)

Defendant.

)

CASE NO. 1:17-cv-00124-JD-SLC

SECOND AMENDED CLASS ACTION COMPLAINT

Plaintiffs, Demetrius Buroff and Ian Barnhart, individually and on behalf of all others

similarly situated, allege as follows against Defendant, David Gladieux:

I. NATURE OF ACTION

1. Defendant systematically disenfranchised hundreds of eligible voters held in the Allen

County Jail during the 2016 general election by refusing to provide them absentee ballots

or alternative access to the polls.1

2. Defendant’s acts violated the fundamental rights of these individuals under the Fourteenth

Amendment to the United States Constitution.2

3. Plaintiffs, and members of the class, bring this action for damages pursuant to 42 U.S.C. §

1983.

1 See O’Brien v. Skinner, 414 U.S. 524, 530 (1974) (Individuals held in a county jail who are “not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote” suffer “a restriction which is so severe as itself to constitute an unconstitutionally onerous burden.” (citation and internal quotes omitted). See also U.S. v. Olinger, 759 F.2d 1293, 1304-05 (7th Cir. 1985). 2 Burdick v. Takushi, 504 U.S. 428, 433 (1992) (The right to vote “is of the most fundamental significance under our constitutional structure.”).

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 2 of 11
II. PARTIES 4. Plaintiff is Demetrius Buroff. Plaintiff Buroff is a U.S. citizen, resident of Allen County,
Indiana, and over eighteen years old. Plaintiff Buroff was held as a pretrial detainee on misdemeanor criminal charges in the Allen County Jail from on or about October 31, 2016 to on or about December 15, 2016.3 Plaintiff Buroff was eligible to vote and not serving a felony criminal sentence while held in the Allen County Jail. 5. Plaintiff is Ian Barnhart. Plaintiff Barnhart is a U.S. citizen, resident of Allen County, Indiana, and over eighteen years old. Plaintiff Buroff was held as a pretrial detainee on felony criminal charges in the Allen County Jail from on or about November 4, 2016 to on or about November 26, 2016.4 Plaintiff Barnhart was eligible to vote and not serving a felony criminal sentence while held in the Allen County Jail. 6. Defendant is Allen County Sheriff David Gladieux. Defendant Gladieux operates the Allen County Jail in Allen County, Indiana and is responsible for all policies, practices, customs, and procedures concerning inmates’ access to absentee ballots, transportation to an appropriate voting center during times of election, or alternative means of accessing the polls. Defendant Gladieux has a non-delegable duty to ensure the fundamental voting rights of detainees and inmates in the jail are not systematically violated. Defendant Gladieux is named in his official capacity for all claims.
III. CLASS ACTION ALLEGATIONS 7. Plaintiffs as proposed representatives of the putative class bring this action pursuant to
3 State of Indiana v. Demetrius Buroff, Case No. 02D06-1610-CM-004222 (Allen Co., Ind. Super. Ct. filed Oct. 31, 2016). 4 State of Indiana v. Ian C. Barnhart, Case No. Case No. 02C01-1609-F6-001065 (Allen Co., Ind. Cir. Ct. filed Sept. 22, 2016).
2

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 3 of 11
Federal Civil Rule of Procedure 23(a) and (b)(3) on behalf of themselves and all others similarly situated as a members of the following proposed class:
All individuals held at the Allen County Jail on November 8, 2016 who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to register to vote while held in the Allen County Jail. 8. The class is so numerous that individual joinder of all class members is impracticable. Fed. R. Civ. P. 23(a)(1). On November 8, 2016, hundreds of eligible voters in the Allen County Jail were denied means to cast a ballot in the general election. 9. There are questions of law and fact common to the class. Fed. R. Civ. P. 23(a)(2). The questions of law and fact common to all class members include but are not limited to: a. Whether Defendant legally barred eligible voters held in the Allen County Jail available means of casting a ballot in the 2016 general election; and b. Whether Defendant caused eligible voters held in the Allen County Jail harm when he denied them available means of casting a ballot in the 2016 general election. 10. Plaintiffs’ claims are typical of the claims of the class. Fed. R. Civ. P. 23(a)(3). 11. Plaintiffs will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). There are no conflicts between Plaintiffs and class members. Plaintiffs and their counsel, Christopher C. Myers & Associates, will vigorously and competently prosecute the case on behalf of the class. 12. Questions of law and fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The
3

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 4 of 11
matters pertinent to these findings include: the class members’ interest in collectively prosecuting this action; the desirability of concentrating the litigation of the claims in this forum; and the effectiveness of prosecuting these claims as a class action. 13. There is continuing and substantial public interest in these matters.5
IV. FACTS A. Plaintiffs and Class Members had the Right to Vote in the 2016 General Election 14. Plaintiffs and members of the putative class had the right to vote in the 2016 general
election despite being detained in the Allen County Jail. 15. Under the U.S. constitution and state law, and as applied by state law, an incarcerated
individual otherwise eligible to vote is not deprived of the right of suffrage unless she is serving a sentence for a felony crime. See Ind. Const. Art. 2, Sec. 1-2, 8; Ind. Code §§ 37-13-4-6. 16. Approximately 500 to 600 individuals are incarcerated at the Allen County Jail at any given time. Of those, more than three-fourths are pretrial detainees not serving a sentence for a felony crime. Of the approximately one-fourth of individuals actually serving a criminal sentence at the Allen County Jail, the majority of those are serving a sentence for a misdemeanor, not a felony crime. 17. The majority of the hundreds of individuals incarcerated at the Allen County Jail on November 8, 2016, therefore, unless otherwise legally restricted, were eligible to vote in the 2016 general election.
5 See O’Brien, 414 U.S. at 533 (Marshall, J., concurring) (Denial of “absentee ballots is effectively an absolute denial of the franchise” where a defendant “is both physically preventing appellants from going to the polls and denying them alternative means of casting their ballots.”).
4

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 5 of 11
B. Events Leading to Disenfranchisement of Plaintiffs and Class Members in the 2016 General Election 18. Between October and November 2016, Defendant repeatedly and systematically through policy, practice, procedure, and custom, or failure to supervise and train his employees, denied eligible individuals held in the Allen County Jail the opportunity to vote in the 2016 general election. 19. On October 12, 2016, in-person early voting began in Allen County and lasted until November 7, 2016. 20. In-person early voting locations in Allen County included the lobby of the Allen County Election Board, located approximately one block from the Allen County Jail. 21. Between October 12, 2016 and November 7, 2016, voters in Allen County were also eligible to vote by absentee ballot. 22. On October 20, 2016, voting for individuals confined by disability or other impairment began. These voters were eligible to vote at their place of confinement. 23. On October 29, 2016, the operating hours for in-person early voting centers, including the lobby of the Allen County Election approximately one square block from the Allen County Jail, were expanded to seven hours per day. 24. On November 8, 2016, the 2016 general election was held. 25. However, inmates at the Allen County Jail during this period of time in October and November 2016 were not at any time permitted to vote by absentee ballot, in-person voting, or any other means.
5

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 6 of 11
C. Plaintiff and Members of the Class Were Disenfranchised in the 2016 General Election 26. Between October and November 2016, Defendant repeatedly and systematically denied individuals detained in the Allen County Jail the opportunity to vote in the 2016 general election. 27. Defendant did so by refusing to provide Plaintiffs and class members transportation or accommodations to vote in-person or by absentee ballot. 28. Plaintiffs and class members could not themselves vote in-person because they were involuntarily detained by Defendant in the Allen County Jail. 29. Plaintiffs and class members could not petition the court to release them temporarily from jail to vote or by their own initiative research how to obtain materials for voting by absentee ballot because Defendant provides the individuals he confines in the Allen County Jail no access to a law library or legal research materials.6 30. As the result of Defendant’s policy and practices, Plaintiffs were disenfranchised. 31. On or about October 31, 2016, Plaintiff Buroff was confined in the Allen County Jail as a pretrial detainee on the accusation of misdemeanor criminal charges. Plaintiff Buroff was indigent and unable to pay the bond to be released. 32. After entering the Allen County Jail, Plaintiff Buroff noticed a posted copy of Defendant’s “Inmate Rights & Privileges Per Classification & Discipline: As Established in the Indiana Jail Standards Guidelines and the Allen County Jail Policy and Procedures.” 33. These jail procedures posted by Defendant state as follows: “An inmate shall be entitled to vote by absentee ballot upon meeting voter’s registration requirements under the Law of
6 See Ward et al. v. Gladieux, Case No. 1:16-cv-00043-PPS-SLC (N.D. Ind.).
6

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 7 of 11
the State of Indiana, as long as the inmate is not serving a sentence upon conviction of felony.” (emphasis added). A copy of these procedures are attached and incorporated into this Complaint as Exhibit A. 34. Further, the Indiana Jail Standards referred to and incorporated into Defendant’s jail procedures provide that the Allen County Sheriff “shall make arrangements with election officials to facilitate an inmate’s right to vote by absentee ballot”. 210 Ind. Admin. Code 3-1-15(f) (emphasis added). 35. Accordingly, relying on Defendant’s affirmative written procedures, Plaintiff Buroff and other class members requested absentee ballots from Defendant’s jail officers in order to vote in the 2016 general election. 36. However, the requests of Plaintiff Buroff and other class members were denied. 37. In fact, Defendant provided no absentee ballots whatsoever for use in the 2016 general election and did not remedy his denial of suffrage to Plaintiffs and class members by facilitating their ability to vote in-person at any voting center, including the voting center one block from the jail. 38. While still being detained, the majority of Plaintiff Buroff’s housing block identified themselves as class members aggrieved by Defendant’s voter policy. A list of these more than thirty individuals and their signatures is attached and incorporated into this Complaint as Exhibit B. 39. On November 4, 2016, Plaintiff Barnhart was arrested and taken into custody at the Allen County Jail as a pretrial detainee7 on two charges of operating a vehicle while intoxicated.
7 “The Equal Protection Clause guarantees a pretrial detainee’s right to vote.” Long v. Pierce, Case No. 2:14-cv00244-LJM-MJD at *12 (S.D. Ind. March 10, 2016)
7

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 8 of 11
40. Plaintiff Barnhart had not previously voted in the 2016 general election and would have voted in the 2016 general election if Defendant had made arrangements for him to do so.
41. As a result of Defendant’s policies, acts, and omissions, Plaintiffs and class members were disenfranchised and prevented from voting in all federal, state, and local elections held on November 8, 2016.
42. As Defendant admits and acknowledges: a. “[N]o inmate was provided with an absentee ballot in the general election held on November 8, 2016.” b. “Defendant did not provide any inmates or detainees held at the Allen County Jail on November 8, 2016 transportation to vote in the 2016 general election.” c. “Defendant admits that he did not assist any inmate detained in the Allen County Jail with voter registration.” d. “Defendant did not provide any inmates or detainees held at the Allen County Jail on November 8, 2016 an on-site jail polling station at the jail to vote in the 2016 general election.” See Exhibit C (Defendant’s Responses to Plaintiffs’ First Set of Requests for Admissions) (emphasis added).
43. Defendant’s actions and policies were applied to the approximately 540 pretrial detainees and inmates incarcerated in the Allen County Jail on November 8, 2016. See Exhibit D (Defendant’s Allen County Jail Housing Occupancy Report for November 8, 2016).
44. The Allen County Election Board has confirmed that, aside from one request in 2012, it has had no contact or correspondence with Defendant concerning the voting of inmates at the Allen County Jail for the past five years. See Exhibit E (Allen County Election Board Nonparty Discovery Response). 8

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 9 of 11
V. CLAIMS FOR RELIEF
FUNDAMENTAL RIGHT TO VOTE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION
45. Under the Fourteenth Amendment to the U.S. Constitution, the right to vote may not be
denied or abridged.
46. The right to vote is a fundamental right.8
47. The right to vote may not be abridged in violation of equal protection or without due
process of law and may not be discriminatorily denied to a class of individuals, including
eligible voters detained in a county jail.
48. However, Defendant’s policies, acts, customs, procedures, omissions, and/or failure to
train and supervise his employees discriminatorily violated the fundamental right to vote
of Plaintiffs and class members.9
49. Defendant abridged these individuals’ fundamental rights without a compelling interest
narrowly tailored to meet a governmental interest and absent the least restrict means of
achieving any such objectives.10
50. Further, no valid, neutral, or rational connection existed between Defendant’s
disenfranchisement of class members and any legitimate governmental interest; no
alternative means aside from those sought existed for the exercise of class members’ rights;
8 See Purcell v. Gonzalez, 549 U. S. 1, 3-4 (2006); Cook v. Gralike, 531 U.S. 510, 524 (2001); Goosby v. Osser, 409 U.S. 512, 519 (1973); Storer v. Brown, 415 U.S. 724, 730 (1972); Evans v. Cornman, 398 U.S. 419, 422 (1970); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627 (1969); Smiley v. Holm, 285 U.S. 355, 366 (1932); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). 9 U.S. v. Olinger, 759 F.2d 1293, 1302-03 (7th Cir. 1985) (“Right of suffrage is a civil right of the highest order and a fundamental political right, because preservative of all rights. No right is more precious than the right of suffrage. It involves matters close to the core of our constitutional system for free and honest elections are the very foundation of our republican form of government. Truly, other rights, even the most basic are illusory if the right to vote is undermined.” (citations and quotations omitted)). 10 Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966).
9

USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 10 of 11
accommodating class members’ fundamental rights would have had only a limited impact on prison management and resources; and the obvious alternative of allowing for absentee voting or brief and structured in-person voting would have been obvious alternatives to outright denying inmates their fundamental right to vote. 51. Administrative inconvenience is not justification for denial of the fundamental right to vote.11 52. Defendant’s acts and omissions caused emotional distress, mental anguish, and other injury to Plaintiffs and class members.
VI. PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request the Court: A. Certify the class as defined;12 B. Declare Plaintiffs the prevailing party; C. Award compensatory damages;13 D. Award legal costs, attorneys’ fees, and expert witness fees, 52 U.S.C § 10310(e); 42 U.S.C. § 1988; and E. Grant all other just and proper relief.
JURY DEMAND Plaintiffs demand a trial by jury pursuant to Rule 38(b) of the Federal Rules of Civil Procedure.
11 Taylor v. Louisiana, 419 U.S. 522, 535 (1975). 12 Tate v. Collins, 496 F.Supp. 205, 211 (W.D. Tenn. 1980) (“It is therefore ordered that the cause before this Court be certified as a class action composed of those persons who will be incarcerated, pending trial or after conviction, on election day, who have not been convicted of an infamous crime . . . who are otherwise entitled to vote . .”). 13 Carey v. Piphus, 435 U.S. 247, 264 n.22 (1978) (U.S. Supreme Court decisions “support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote.”); see also Memphis Community School District v. Stachura, 477 U.S. 299, 314-15 (1986) (Marshall, J., concurring).
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USDC IN/ND case 1:17-cv-00124-TLS-SLC document 28 filed 08/15/17 page 11 of 11 Respectfully, CHRISTOPHER C. MYERS & ASSOCIATES /s/ David W. Frank David W. Frank, #31615-02 Christopher C. Myers, #10043-02 809 South Calhoun Street, Suite 400 Fort Wayne, IN 46802-2307 Telephone: (260) 424-0600 Facsimile: (260) 424-0712 E-mail: dfrank@myers-law.com Counsel for Plaintiffs
DF/
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 USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 1 of 12

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DEMETRIUS BUROFF and

)

IAN BARNHART,

)

individually and on behalf of all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DAVID GLADIEUX,

)

in his official capacity,

)

)

Defendant.

)

CASE NO.: 1:17-CV-124-TLS

OPINION AND ORDER

This matter comes before the Court on Plaintiff Ian Barnhart’s Second Motion to Certify

Class [ECF No. 36], filed on March 7, 2018. Defendant David Gladieux, in his official capacity

as Allen County Sheriff, filed his Response to the Plaintiff’s Motion [ECF No. 38] on March 21,

2018, and the Plaintiff filed his Reply [ECF No. 39] on March 28, 2018. This matter is now fully

briefed and ripe for review.

BACKGROUND The Plaintiff filed this action individually and behalf of all others similarly situated, alleging that the Defendant systematically disenfranchised hundreds of eligible voters who were being confined in the Allen County Jail during the 2016 general election. (Amend. Compl. ¶ 1, ECF No. 18.) The Plaintiff is a United States citizen, over eighteen years of age, and a resident of Allen County, Indiana (Id. ¶ 5.) The Plaintiff was held in the Allen County Jail as a pretrial detainee on misdemeanor criminal charges from on or about October 31, 2016, to on or about

USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 2 of 12
December 15, 2016. (Id. ¶ 4.) The Defendant at all relevant times served as the Allen County Sheriff and operated the Allen County Jail (Id. ¶ 6.)
The Plaintiff alleges that on November 8, 2016, he was eligible to vote in the 2016 General Election, but the Defendant prevented him from doing so from the Allen County Jail. (Id. ¶¶ 14, 18, 24, 25.) Additionally, the Plaintiff was denied access to in-person early voting, absentee ballots, or any other means of voting. (Id. ¶¶ 19–21, 25.) The Plaintiff initiated this lawsuit pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of himself and all other similarly situated as members of the following proposed class:
All individuals held at the Allen County Jail on November 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail. (Id. ¶ 7.) The Plaintiff seeks monetary damages on behalf of himself and the class. On June 6, 2017, the Plaintiff, along with another previously named Plaintiff, Demetrius Buroff, moved for class certification [ECF No. 19]. The Defendant challenged the Plaintiffs’ Motion and asserted that (1) neither of the named Plaintiffs had standing to bring a claim individually or on behalf of the class, and (2) neither of the named Plaintiffs could satisfy the typicality and adequate representation requirements of Rule 23. On November 13, 2017, the Court denied [ECF No. 32] the Plaintiffs’ Motion, with leave to refile, finding that the Plaintiffs had failed to satisfy the numerosity requirement. The Court noted the availability of information regarding which individuals were held at the Allen County Jail on November 8, 2016, and whether they were registered to vote and instructed that the Plaintiffs could potentially show the requisite numerosity after review of such information and subsequent presentation of it to the
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Court. The Court also dismissed Buroff as a party because he had not been registered to vote at the relevant time, and therefore lacked standing.
LEGAL STANDARD “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). Instead, plaintiffs bear the burden to show that a proposed class satisfies Rule 23. Arwa Chiropractic, P.C. v. Med-Care Diabetic & Med. Supplies, Inc., 14-C5602, 2017 WL 4339788, at *2 (N.D. Ill. Sep. 29, 2017) (citing Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012)). A plaintiff satisfies Rule 23 when he meets all of the requirements of Federal Rule of Civil Procedure 23(a) and one of the requirements of Rule 23(b). See Fed. R. Civ. P. 23; Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). First, the plaintiff must show: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the
class. Fed. R. Civ. P. 23(a)(1)–(4); Kress v. CCA of Tenn., LLC, 694 F.3d 890, 892–93 (7th Cir. 2012). Additionally, the Seventh Circuit has held that a class must be sufficiently defined so that the class is identifiable. All. to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977); see also Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) (“It is axiomatic that for a class action to be certified, a ‘class’ must exist.”); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). If
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a plaintiff meets these four prerequisites, the plaintiff then must also satisfy one of the subsections of Rule 23(b). Here, the Plaintiff aims to satisfy Rule 23(b)(3), which is satisfied if:
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3); Harper v. Sheriff of Cook Cty., 581 F.3d 511, 513 (7th Cir. 2009). A plaintiff who fulfills both conditions of Rule 23 is entitled to class certification. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (“[Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.”). However, as stated previously, Rule 23 “does not set forth a mere pleading standard”; rather, a plaintiff “must affirmatively demonstrate his compliance with the Rule [and] be prepared to prove” its requirements. Wal-Mart Stores, 564 U.S. at 350. Importantly, “the party seeking class certification assumes the burden of demonstrating that certification is appropriate.” Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584 (7th Cir. 1993) (citing Trotter v. Klincar, 748 F.3d 1177 (7th Cir. 1984)). In deciding whether Rule 23 has been satisfied, the district court undertakes “a rigorous analysis” by making the necessary factual and legal inquiries. Wal-Mart Stores, 564 U.S. at 350; Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). This analysis may require
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some overlap with the merits of the Plaintiff’s underlying claim. Wal-Mart Stores, 564 U.S. at 351.
ANALYSIS The Plaintiff seeks to certify a class of individuals defined as: All individuals held at the Allen County Jail on November 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail. (Pl. Second Mot. for Class Certification at 2.) To certify the class, the Plaintiff must first satisfy the four familiar Rule 23(a) requirements: numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 24(a)(1)–(4). The Defendant, as with his previous opposition to class certification, asserts that the Plaintiff cannot meet the adequacy and typicality requirements of Rule 23(a), but does not challenge the commonality or numerosity requirements. The Defendant’s argument regarding both of these requirements is premised upon the same idea: the class, as defined, is over-inclusive because it “includes hundreds of individuals not entitled to relief” and therefore, is not identifiable. (Def. Resp. Br. at 5, ECF No. 38.) Because the class is over-inclusive, the Defendant argues that the Plaintiff necessarily cannot meet the typicality requirement because the individuals not entitled to relief cannot have claims or defenses typical of those of the individuals potentially entitled to relief. Similarly, the Defendant asserts that the Plaintiff cannot meet the adequacy requirement because the Plaintiff cannot fairly and adequately advance and protect the legal rights of individuals that are not entitled to relief. Before evaluating the Rule 23 requirements, the Court must first determine whether the class is identifiable. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). A class is
5

USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 6 of 12
identifiable if class membership can be readily determined by reference to objective criteria. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 496 (7th Cir. 2012).
The Plaintiff argues that the Court can ascertain whether an individual was held in the Allen County Jail on November 8, 2016; whether that individual was an eligible, registered voter for the 2016 general election; and whether that individual received an absentee ballot or was transported to a polling station in order to vote in the election. Therefore, the Plaintiff asserts that the class is readily identifiable, and the Court agrees.
The Defendant responds that the proposed class is over-inclusive because it includes individuals that were incarcerated prior to the deadline for applying for an absentee ballot, October 31, 2016, in accordance with their rights under the Allen County Jail’s policy and Indiana law. Thus, the Defendant asserts that individuals who were incarcerated prior to October 31, 2016, are not proper members of any proposed class. Because those individuals had the opportunity to request an absentee ballot, and because there is no record of them doing so, their actions are not fairly attributable to the Defendant’s conduct. (Id. at 7 (citing Swann v. Sec’y, Ga., 668 F.3d 1285, 1288–89 (11th Cir. 2012).) The Defendant cites to Long v. Pierce, in which the court stated that the plaintiff “point[ed] to no United States Supreme Court, Seventh Circuit, or other circuit court cases that have held that it is unconstitutional to fail to provide a means for detainees to vote in an election other than an absentee ballot, which the detainee may acquire for himself.” No. 2:14-cv-224, 2016 WL 912685, at *5 (S.D. Ind. Mar. 10, 2016). However, Long is a qualified immunity case in which the question before the court was whether such a failure was “apparent” based on prior authority so that the defendant should have known his actions were unconstitutional. Id. The court found only that “there was not a clearly established right,” not that such a right did not exist. Id. Qualified immunity is not at issue here, so Long is not relevant.
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USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 7 of 12
Rather, the Defendant’s argument goes to the merits of the Plaintiff’s action. The Plaintiff cites the Allen County Jail Policy and Procedures, which explicitly provide that inmates have a right to vote via absentee ballot—a right that was provided for by the Indiana Administrative Code (IAC). The Plaintiff also cites the IAC for the proposition that the Defendant was required to “make arrangements with elections official to facilitate [the inmates’] right to vote by absentee ballot.” The Court notes that the provisions regarding inmates’ ability to vote are found only in older versions of the IAC. See, e.g., 210 Ind. Admin. Code § 3-1-15 (2011). However, the IAC provisions in effect in 2016—and currently in effect—contain no such provisions. See 210 Ind. Admin. Code § 3-1-15 (2016). Yet, the Defendant does not dispute that inmates who are otherwise eligible to vote do, in fact, have a right to vote. Whether the Defendant had an affirmative duty to facilitate eligible inmates’ ability to vote is a question that goes to the merits of the case, not to whether class members are identifiable. Therefore, the Court finds that the Plaintiff has proposed an identifiable class.
A. Rule 23(a) Requirements The Court now turns to whether the Plaintiff has adequately addressed the deficiencies
identified in the Court’s previous Order and Opinion. Rule 23(a)(1) requires a class to be “so numerous that joinder of all members is impracticable.” As with the other Rule 23 requirements, a plaintiff has the burden of proving that the class is so numerous that joinder is impracticable. Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976). While an exact number is not required, a class with more than forty members will generally satisfy the numerosity requirement. Pruitt v. City of Chi., 472 F.3d 925, 926–27 (7th Cir. 2006). Further, a conclusory allegation that a class is
7

USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 8 of 12
so numerous to make joinder impracticable does not satisfy Rule 23(a)(3). Valentino, 528 F.2d at 978.
The Plaintiff now asserts that the jail records and voter registration records demonstrate that over three hundred individuals are part of the proposed class. The Defendant challenges neither the Plaintiff’s argument nor the newly proposed evidence, other than as discussed above. Given the size of the proposed class, the Court finds that the Plaintiff has met the numerosity requirement.
The Court also finds that the Plaintiff has met the remaining Rule 23(a) requirements. As to commonality, there is “[a] common nucleus of operative fact” because the Defendant is accused of “engag[ing] in standardized conduct towards member of the proposed class.” See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Specifically, the Plaintiff alleges that the Defendant unlawfully disenfranchised individuals held in the Allen County Jail by denying them the fundamental right to vote in the 2016 general election. According to the Plaintiff, “[t]he acts and omissions of Defendant, as operator of the Allen County Jail, give rise to common questions of law and fact including whether Defendant may bar inmates’ access to the ballot, particularly when he has assumed an affirmative obligation to facilitate their ability to vote.” (Pl. Br. in Supp. of Mot. to Certify Class at 10.) This is sufficient to satisfy the commonality element.
The typically requirement requires the Plaintiff to show that the class representative’s claim is typical of the class as a whole. Fed. R. Civ. P. 23(a)(3). In the Seventh Circuit, a typical claim is one that “arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (quotation omitted). Here, the alleged injury by the Plaintiff “is the same harm and based on the same wrongful course of conduct
8

USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 9 of 12
experienced by each class member and the rights Plaintiff is asserting against the wrongs are based on the same voting rights legal theories as would also be advanced by putative class members.” (Pl. Br. in Supp. of Mot. to Certify Class at 11.) As such, the Court finds that the Plaintiff has satisfied the typicality requirement of Rule 23(a).
Finally, under Rule 23, a class representative must be able to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To satisfy Rule 23(a)(4), a plaintiff must demonstrate that (1) the representative does not have conflicting or antagonistic interests compared with the class as a whole; (2) the representative is sufficiently interested in the case outcome to ensure vigorous advocacy; and (3) class counsel is experienced, competent, qualified and able to conduct the litigation vigorously.” Rogers v. Khatra Petro, Inc., No. 2:08-CV-294, 2010 WL 3894100, at *2 (N.D. Ind. Sept. 29, 2010) (internal quotations omitted).
The Plaintiff argues that he can sufficiently represent the class because he has a personal stake in the litigation, with the same interest and the same injury as the other class members, and he is represented by competent and experienced counsel. The Defendant’s only argument that the Plaintiff cannot adequately represent the class is that the proposed class includes members that, according to the Defendant, do not have a cognizable claim and therefore cannot be adequately represented. The Court has already addressed the argument regarding the breadth of the proposed class and the identifiability of its members, and the Defendant’s reiteration of this argument here is unavailing. The Court finds that the Plaintiff and the proposed class counsel, Christopher C. Myers & Associates, are able to adequately represent the members of the proposed class. Therefore, the Plaintiff has met his burden under Rule 23(a).
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USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 10 of 12
B. Rule 23(b) Requirements In addition to meeting the class certification requirements under Rule 23(a), the Plaintiff
must also satisfy the requirements of one of the subsections of Rule 23(b). In this case, the Plaintiff seeks class certification under Rule 23(b)(3), which permits class certification where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
The United States Supreme Court has explained that the Rule 23(b)(3) inquiry “trains on the legal or factual questions that qualify each class member’s case as a genuine controversy” with the purpose being to determine whether a proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). A court examining a class proposed under Rule 23(b)(3) “should evaluate the evidence pragmatically” in deciding if resolution for the class “would substantially advance the case.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 761 (7th Cir. 2014). Further, a court must consider “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Fed. R. Civ. Pro. 23(b)(3). A class action is superior to all other methods where “it will efficiently resolve a potentially large number of claims that share a similar set of legal and factual issues” and where “the courts could potentially be inundated with many individual cases that seek to litigate an essential core of the same legal and factual issues.” Selburg v. Virtuoso Sourcing Grp., LLC, No. 1:11-cv-1458, 2012 WL 4514152, at *10 (S.D. Ind. Sept. 29, 2012).
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The superiority requirement of Rule 23(b)(3), along with predominance, is intended “to cover cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem Prods., 521 U.S. at 615 (internal quotation marks and alterations omitted).
The Defendant offers no argument regarding Rule 23(b) requirements, and the Court agrees with the Plaintiff that Rule 23(b)(3) is satisfied here. The case involves common sets of facts and legal questions regarding voter disenfranchisement allegedly suffered by the putative class members. These common sets of facts and legal questions will predominate over any questions affecting some, but not all, members of the class. A class action is also a superior method for prosecuting this claim given the potential difficulty many indigent individual class members may have navigating complex civil rights issues. There are no cases that have been brought to the Court’s attention that concern this alleged issue, and there is no reason to believe that managing this case as a class action will present any unique difficulties. Therefore, the Court finds that a class action is a superior form for litigating this case.
For the foregoing reasons, the Court certifies the following class: All individuals held at the Allen County Jail on November 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail.
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USDC IN/ND case 1:17-cv-00124-TLS document 41 filed 05/17/18 page 12 of 12 CONCLUSION
The Plaintiff has satisfied the requisite elements of Rule 23(a)(1)–(4), Rule 23(b)(3), and Rule 23(g). Accordingly, the Court GRANTS, the Plaintiff’s Second Motion to Certify Class [ECF No. 36].
The Court appoints Christopher C. Myers & Associates as Class Counsel. SO ORDERED on May 17, 2018.
s/ Theresa L. Springmann CHIEF JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
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 USDC IN/ND case 1:17-cv-00124-TLS document 32 filed 11/13/17 page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DEMETRIUS BUROFF and IAN BARNHART, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DAVID GLADIEUX, in his official capacity,
Defendant.

)

)

)

)

)

)

)

)

CASE NO.: 1:17-CV-124-TLS

)

)

)

)

)

OPINION AND ORDER

This matter comes before the Court on Plaintiffs Demetrius Buroff’s and Ian Barnhart’s

First Amended Motion for Class Certification [ECF No. 19]. Defendant David Gladieux, in his

official capacity as Allen County Sheriff, filed his Response to the Plaintiffs’ First Amended

Motion for Class Certification [ECF No. 29]. The Plaintiffs timely filed their Reply [ECF No.

31]. This matter is thus fully briefed and ripe for review.

BACKGROUND This background is provided through the pleadings, class certification motions, and attached exhibits. The Plaintiffs allege that the Defendant systematically disenfranchised hundreds of eligible voters who were being confined in the Allen County Jail during the 2016 General Election. (Amended Compl. ¶ 1.) Both are United States citizens, over eighteen years old, and residents of Allen County, Indiana (Id. ¶¶ 4, 5.) Plaintiff Buroff was held in the Allen County Jail as a pretrial detainee on misdemeanor criminal charges from on or about October 31,

USDC IN/ND case 1:17-cv-00124-TLS document 32 filed 11/13/17 page 2 of 9
2016, to on or about December 15, 2016. (Id. ¶ 4.) Plaintiff Barnhart was held in the Allen County Jail as a pretrial detainee on felony criminal charges from on or about November 4, 2016, to on or about November 26, 2016. (Id. ¶ 5.) Defendant at all relevant times served as Allen County Sheriff and operated the Allen County Jail (Id. ¶ 6.)
The Plaintiffs allege that on November 8, 2016, they were eligible to vote in the 2016 General Election but that the Defendant prevented them from doing so from the Allen County Jail. (Id. ¶¶ 14, 18, 24, 25.) Additionally, the Plaintiffs were denied access to in-person early voting, absentee ballots, or any other means of voting. (Id. ¶¶ 19–21, 25.) The Plaintiffs were not the only individuals held in Allen County Jail during this time, and they initiated this lawsuit pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of themselves and all other similarly situated as members of the following proposed class:
All individuals held at the Allen County Jail on November 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail. (Id. ¶ 7.) The Plaintiffs seek monetary damages on behalf of themselves and the class. The Defendant challenged class certification and asserted that (1) neither of the named Plaintiffs has standing to bring a claim individually or on behalf of the class, and (2) neither of the named Plaintiffs can satisfy the requirements of Rule 23. The Defendant produced Allen County Board of Voter Registration data which shows that Plaintiff Buroff first registered to vote in Allen County on April 4, 2017. (Def.’s Resp. to Class Certification Ex. 1.) The same data shows that Plaintiff Barnhart was registered to vote in Allen County beginning on June 11, 2012. (Id. Ex. 2.) The Defendant also provided a true and accurate copy of the 2016 Indiana Election Calendar that contains relevant dates pertaining to voting and election deadlines, including the
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deadline for voter registration (October 11, 2016) and the deadline to request an absentee ballot (October 31, 2016). (Id. Ex. 3.)
LEGAL STANDARD A. Article III Standing
Federal courts are courts of limited jurisdiction. U.S. Const. art. III, § 2. This jurisdiction extends to justiciable “Cases” and “Controversies” where a plaintiff has established standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560–61). The plaintiff bears the burden to establish standing. Id. Additionally, a named plaintiff must establish standing to seek personal and class wide relief. O’Shea v. Littleton, 414 U.S. 488, 493–94 (1974).
B. Federal Rule of Civil Procedure 23 “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351 (2011). Instead, plaintiffs bear the burden to show that a proposed class satisfies Rule 23. Arwa Chiropractic, P.C. v. Med-Care Diabetic & Med. Supplies, Inc., 14-C5602, 2017 WL 4339788, at *2 (N.D. Ill. Sep. 29, 2017) (citing Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012)). A plaintiff satisfies Rule 23 when he meets all of the requirements of Federal Rule of Civil Procedure 23(a) and one of the requirements of Rule 23(b). See Fed. R. Civ. P. 23; Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). First, the plaintiff must show:
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(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the
class. Fed. R. Civ. P. 23(a)(1)–(4); Kress v. CCA of Tenn., LLC, 694 F.3d 890, 892–93 (7th Cir. 2012). If a plaintiff meets these four prerequisites, the plaintiff then must also satisfy one of the subsections of Rule 23(b). Here, the Plaintiffs aim to satisfy Rule 23(b)(3), which is satisfied if:
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3); Harper v. Sheriff of Cook Cty., 581 F.3d 511, 513 (7th Cir. 2009). In deciding whether Rule 23 has been satisfied, the district court undertakes “a rigorous analysis” by making the necessary factual and legal inquiries. Dukes, 564 U.S. at 350; Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). This analysis may require some overlap with the merits of the Plaintiff’s underlying claim. Dukes, 564 U.S. at 351.
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ANALYSIS A. Article III Standing
The Defendant first argues that the named Plaintiffs do not have standing to bring their claims, and therefore cannot request individual or class wide relief. For the reasons that follow, the Court finds that Plaintiff Buroff lacks standing, whereas Plaintiff Barnhart has properly invoked federal jurisdiction.
1. Plaintiff Buroff The Defendants persuasively argue that Plaintiff Buroff lacks standing to bring this
action. Plaintiff Buroff must demonstrate that (1) he has suffered an injury in fact, (2) that is fairly traceable to Defendant’s challenged conduct, and (3) a favorable judicial decision will likely redress the injury in fact. Lujan, 504 U.S. at 560–61. Here, Plaintiff Buroff has failed to allege an injury in fact. He was arrested on October 31, 2016, while the deadline to register to vote in the 2016 General Election was October 11, 2016. He had not registered to vote by the October 11, 2016, deadline. Thus, he would not have been permitted to vote in the 2016 General Election. (Def.’s Resp. to Class Certification Ex. A, ¶ 7.) Therefore, he did not suffer a cognizable Article III injury when he was not permitted to vote on November 8, 2016.
Plaintiff Buroff insists first that the voter registration data provided by the Defendant is not accurate, but he does not come forward with any additional evidence to show this is the case. The party who seeks to invoke federal jurisdiction has the burden to demonstrate standing. Lujan, 504 U.S. at 560–61. Plaintiff Buroff has not overcome the Defendant’s evidence. He
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therefore lacks standing to seek both individual or class wide relief because he did not suffer a cognizable injury in fact.
2. Plaintiff Barnhart The Defendant also asserts that Plaintiff Barnhart lacks standing to bring claims on behalf
of himself and the class. The Court disagrees. Put concisely, Plaintiff Barnhart alleged that he fulfilled all the requirements to vote in the 2016 General Election in Allen County. He further alleges that he could not vote in Allen County on November 8, 2016, because the Defendant did not have proper procedures in place to let him do so from the Allen County Jail. The Defendant insists that Plaintiff Barnhart lacks standing because he failed to ask for an absentee ballot prior to the October 31, 2016, deadline, and was not incarcerated in the Allen County Jail until after October 31, 2016. Therefore, under the Defendant’s reasoning, the Allen County Jail never impermissibly interfered with Plaintiff Barnhart’s request for an absentee ballot.
The Defendant did not interfere with Plaintiff Barnhart’s request for an absentee ballot under Indiana state law. But Plaintiff Barnhart was otherwise qualified to vote in the 2016 General Election under Indiana state law and could not do so solely because he was a pretrial detainee in the Allen County Jail. The Supreme Court has recognized that individuals held in county jail that are otherwise eligible to register or vote must be given some means to do so. See O’Brien v. Skinner, 414 U.S. 524, 530 (1974). The Defendant did not provide any means for Plaintiff Barnhart to exercise his right to vote.
Like Plaintiff Buroff, Plaintiff Barnhart must demonstrate that (1) he has suffered an injury in fact, (2) that is fairly traceable to Defendant’s challenged conduct, and (3) a favorable judicial decision will likely redress the injury in fact. Lujan, 504 U.S. at 560–61. Plaintiff
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Barnhart has alleged that he was otherwise eligible to vote in the 2016 General Election and that the Defendant prevented him from doing so through inadequate policies, practices, or procedures in the Allen County Jail. He further claims that money damages will make him whole. He has met his burden and properly invoked federal jurisdiction.
B. Class Certification Under Fed. R. Civ. P. 23 The remaining named Plaintiff, Barnhart, has standing to seek individual and class wide
relief. The Plaintiff seeks to certify a class of individuals defined as: All individuals held at the Allen County Jail on November 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail.
(Pl.’s First Amended Mot. for Class Certification at 3.) To certify the class, the Plaintiff must first satisfy the four familiar Rule 23(a) requirements: numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 24(a)(1)–(4). The Defendant asserts that the Plaintiff cannot meet two Rule 23(a) requirements for class certification, namely adequacy and typicality. The Defendant largely repeats his standing argument when attacking adequacy and typicality. However, the Plaintiff’s class certification fails for a different reason: numerosity.
Rule 23(a)(1) requires a class to be “so numerous that joinder of all members is impracticable.” As with the other Rule 23 requirements, a plaintiff has the burden of proving that the class is so numerous that joinder is impracticable. Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976). While an exact number is not required, a class with more than forty members will generally satisfy the numerosity requirement. Pruitt v. City of Chi., 472 F.3d 925, 926–27
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(7th Cir. 2006). Further, a conclusory allegation that a class is so numerous to make joinder impractical does not satisfy Rule 23(a)(3). Valentino, 528 F.2d at 978.
Here, the Plaintiff has identified dozens of individuals who claim to have been harmed by the Defendant’s actions. (See Pl’s Second Amended Compl. Ex. B.) However, the Plaintiff has provided no evidence that these individuals or any of the other individuals in Allen County Jail on November 8, 2016, were either registered to vote or requested an absentee ballot while in Allen County Jail. The Plaintiff asserts that at any given time there are 500 to 600 individuals incarcerated in the Allen County Jail, and that on November 8, 2016, a majority of the incarcerated population at Allen County Jail was eligible to vote in the 2016 General Election (Id. ¶¶ 16–17.)
The Plaintiff, however, has provided no other support for this contention. Each of these individuals could have been registered to vote on November 8, 2016, or could have tried to register for the 2016 General Election. Or they may not have. The Plaintiff has provided a potential upper bound for the class size, but has not produced enough to show how big or small the class may actually be. Without that information, the Court does not know whether joinder is impracticable.
The Plaintiff, though, received a list of “each individual held, detained, incarcerated, and/or confined at any time in the Allen County Jail on November 8, 2016 who was not serving a sentence for a felony crime.” (Id. Ex. D.) Further, the Allen County Board of Voter Registration maintains a publicly available database of individuals registered to vote in Allen County. (Def.’s Resp. to Pl.’s First Amended Motion for Class Certification ¶¶ 2, 3.) The Plaintiff likely has the tools available to determine whether the class is so numerous to make joinder of all claims
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USDC IN/ND case 1:17-cv-00124-TLS document 32 filed 11/13/17 page 9 of 9 impracticable. At the moment, though, the Plaintiff has not carried his burden under Rule 23(a)(1).
CONCLUSION Accordingly, the Court DENIES, WITH LEAVE TO REFILE, the Plaintiff’s First Amended Motion for Class Certification [ECF No. 19] and DISMISSES Plaintiff Demetrius Buroff. SO ORDERED on November 13, 2017.
s/ Theresa L. Springmann CHIEF JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

IAN BARNHART, Individually and on behalf of all others similarly situated,

Plaintiff,

v.

CAUSE NO.: 1:17-CV-124-TLS

DAVID GLADIEUX, in his official capacity,

Defendant.

OPINION AND ORDER

This matter is before the Court on the Defendant’s, Allen County Sheriff David Gladieux,

Motion for Partial Summary Judgment [ECF No. 43] pursuant to Rule 56 of the Federal Rules of

Civil Procedure and N.D. Ind. L.R. 56-1. For the reasons stated below, the Court GRANTS the

Defendant’s Motion for Partial Summary Judgment.

BACKGROUND On March 27, 2017, the Plaintiffs filed their Class Action Complaint against Defendant Gladieux, in his official capacity [ECF No. 1]. The Plaintiffs filed an Amended Complaint on June 6, 2017 [ECF No. 18], a First Amended Motion for Class Certification [ECF No. 19], and a Second Amended Complaint on August 15, 2017 [ECF No. 28]. The Plaintiffs allege that the Defendant refused to provide the Plaintiffs with absentee ballots or alternative access to the polls in violation of the Fourteenth Amendment and seeks damages pursuant to 42 U.S.C. § 1983. [ECF No. 28, ¶¶ 14, 18–21, 24–30].

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On November 13, 2017, the Court dismissed the Plaintiffs’ First Amended Motion for Class Certification. (Op. and Order at 5, ECF No. 32.) In that Order, the Court found that, although Plaintiff Barnhart was not incarcerated until after the date in which he could request an absentee ballot, he could not vote solely because he was a pretrial detainee in the Allen County Jail and “[t]he Defendant did not provide any means for Plaintiff Barnhart to exercise his right to vote.” (Id. at 6.)
On March 7, 2018, Plaintiff Barnhart filed a Second Motion to Certify the Class [ECF No. 36], which was granted on May 17, 2018 [ECF No. 41]. The Court certified the following class:
All individuals held at the Allen County Jail on November 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail. (Op. and Order Granting Class Cert. at 11, ECF No. 41.) On July 23, 2018, the Defendant filed a Motion for Partial Summary Judgment, seeking to dismiss the claims of the Class Members incarcerated in the Allen County Jail on or before October 31, 2016 (hereafter referred to as the “October Class Members”) [ECF No. 43]. The Defendant argues that the Plaintiffs have failed to demonstrate that the October Class Members were unable to vote by absentee ballot under Allen County Jail policy or practice. (Def.’s Mem. in Supp. of Mot. for Partial Summ. J. at 1, ECF No. 44.) The Defendant argues that the October Class Members were freely able to vote by absentee ballot under both express Allen County Jail policy and Indiana law. (Id. at 2.) Thus, the Defendant argues, no policy or practice of the Allen County Sheriff’s Department caused any alleged constitutional injury. (Id.) The Defendant does not move for summary judgment for Class Members booked into the Allen County Jail after the
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October 31, 2016 deadline to request an absentee ballot, as issues of fact that preclude an entry of summary judgment. (Id. at 2–3).
On August 20, 2018, the Plaintiffs filed a Response to Defendant’s Motion for Partial Summary Judgment [ECF No. 45]. On September 4, 2018, the Defendant filed a Reply in Support of Motion for Partial Summary Judgment [ECF No. 47]. On September 27, 2018, with the Court’s permission, the Plaintiffs filed a sur-response to the Defendant’s Motion for Partial Summary Judgment [ECF No. 50].
STATEMENT OF FACTS Defendant Gladieux operates the Allen County Jail in Allen County, Indiana and did so at the time of the 2016 general election. The Allen County Jail Rules (Jail Rules) were posted for prisoner viewing and include a section regarding inmate rights and privileges, including the right to vote. The rules state: “An inmate shall be entitled to vote by absentee ballot upon meeting voter’s registration requirements under the Law of the State of Indiana, as long as the inmate is not serving a sentence upon conviction of a felony.” To vote in the 2016 general election, an eligible individual was required to register to vote by Tuesday, October 11, 2016. The deadline to request an absentee ballot via mail was 11:59 p.m. on October 31, 2016. Indiana law requires that a voter request an absentee ballot on his or her own behalf. The Defendant has no record of any inmate detained in the Allen County jail timely requesting an absentee ballot for the 2016 general election. Nor does the Allen County Election Board have any record of any inmate requesting an absentee ballot for the 2016 general election.
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In-person early voting in Allen County took place from October 12, 2016 until November 7, 2016, and the general election took place on November 8, 2016. Of the inmates detained in the Allen County Jail on November 8, 2016, over 300 inmates were registered to vote. On the day of the general election, the Defendant did not provide any inmates or detainees held at the Allen County Jail on November 8, 2016 transportation to vote. The Defendant also did not provide any inmates or detainees an on-site jail polling station at the jail to vote in the 2016 election.
LEGAL STANDARD Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. Summary judgment is the moment in litigation where the non-moving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The court’s role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). “A district court should deny a motion for summary judgment only when the non-moving party presents admissible evidence that creates a genuine issue of material fact.” Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); then citing Swearnigen–El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir. 2010)). Material facts are those that are outcome determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). “Irrelevant or unnecessary facts do not
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deter summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). Additionally, a court is not “obliged to research and construct legal arguments for parties, especially when they are represented by counsel.” Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).
ANALYSIS Suits against county officials in their official capacities are treated as suits against the county itself. Weeks v. Hodges, 871 F. Supp. 2d 811, 824 (N.D. Ind. 2012). “Governmental entities cannot be held liable for the unconstitutional acts of their employees unless those acts were carried out pursuant to an official custom or policy.” Grievson v. Anderson, 538 F. 3d 763, 771 (7th Cir. 2008). “The official policy requirement for liability under 1983 is to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Id. (quotations and citations omitted) (emphasis in original). Under Monell liability, policymakers can be sued in their official capacity for promulgating unconstitutional policies or allowing unconstitutional policies and customs so regularly that they have the force of law. See Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 674–675 (7th Cir. 2009) (citing Monell v. City of New York, 436 U.S. 658, 98 (1978)). A plaintiff “can establish a ‘policy or custom’ by showing: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority.” Gable v. City of Chicago, 296
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F.3d 531, 537 (7th Cir. 2002) (internal quotations and citation omitted). The Plaintiffs allege that: (i) omissions in the Defendant’s policies contributed to a widespread practice that resulted in the October Class Members’ inability to exercise their right to vote via absentee ballot; and/or (ii) the Defendant’s failure to train employees resulted in constitutional injuries. (Pls.’ Br. in Opp. of Mot. for Summ. J. at 10, 14.)
A. Express Policy or Omission and Evidence of Widespread Practices The express policy theory applies when a plaintiff can point to an explicit policy or an
omission in a policy that violates a constitutional right. See Calhoun v. Ramsey, 408 F.3d 375, 379–80 (7th Cir. 2005) (emphasis added). The Plaintiffs argue that two distinct omissions from the policy—the lack of information in the Allen County Jail policy regarding how prisoners could vote, and the policy’s failure provide inmates or detainees a way to vote apart from absentee ballot—resulted in the Class Member’s constitutional deprivation. (Pl.’s Br. in Opp. of Mot. for Summ. J. at 14, ECF No. 46.) In cases in which a party argues that an omission from a policy caused a constitutional deprivation, the Seventh Circuit considers whether the policy failed to address certain issues and whether there were widespread practices that caused a constitutional violation together, as the claim requires more evidence than a single incident to establish liability. See, e.g., City of Okla. v. Tuttle, 471 U.S. 808, 822 (1985) (“[W]here the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the [omission in the policy or lack of policy] and the constitutional deprivation.”); Calhoun 408 F.3d at 381 (“Because he cannot point to any language in the jail's policy that is constitutionally suspect, he must provide enough evidence of
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custom and practice to permit an inference that the County has chosen an impermissible way of operating.”). The plaintiff must provide more evidence than a single incident, as “[i]f the same problem has arisen many times and the municipality has acquiesced in the outcome, it is possible (though not necessary) to infer that there is a policy at work, not the kind of isolated incident that … cannot support municipal liability.” Id.at 380 (internal citation omitted). This is necessary as “[n]o government has or could have policies about virtually everything that might happen. The absence of a policy might thus mean only that the government sees no need to address the point at all, or that it believes that case-by-case decisions are best, or that it wants to accumulate some experience before selecting a regular course of action.” Id.
Thus, the Court must ask: (i) whether the Defendant’s express policy in the Jail Rules was sufficient, or contained omissions that violated the Plaintiffs’ right to vote; and, if there are omissions, (ii) whether there was a widespread practice in place of the policy that caused the Plaintiffs’ constitutional violations. The Defendant maintains that the express policy in the Jail Rules is sufficient and that there was no widespread practice that disenfranchised the Plaintiffs. (Def.’s Mem. in Supp. of Mot. for Summ. J. at 7, ECF No. 44.) The Plaintiffs argue that eligible inmates were not permitted access to absentee ballots, as an express policy that permitted prisoners to request absentee ballots does not necessarily mean that prisoners were able to exercise that right. (Pl.’s Br. in Opp. to Def.’s Mot. for Partial Summ. J. at 13–14.)
Individuals held in jail who are otherwise eligible to vote must be afforded a “means of casting their vote.” O’Brien v. Skinner, 414 U.S. 524, 530 (1974). Indiana law is clear that an inmate must obtain his or her own absentee ballot. Ind. Code § 3-11-4-2. A Sheriff cannot do so on behalf of an inmate. Id. The Plaintiffs produced a petition [ECF No. 28-2] from prisoners who were “aggrieved by” the Defendant’s voting policy and several affidavits that numerous Class
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Members would have voted and were unable to do so because no method was made available. These affidavits include those class members that the Defendant seeks to dismiss via summary judgment who were eligible to vote via absentee ballot [ECF No. 45-1–45-15]. The Plaintiffs maintain that the petition and affidavits demonstrate the Defendant’s failure to provide absentee ballots, which was caused by an omission in the Allen County Jail’s express policy. (Pl.’s Br. in Opp. to Def.’s Mot. for Partial Summ. J. at 12–14.) The petition is a list of names with the title “I Demetrius D. Buroff would like to file a Class Action Law suite [sic] under the law of the State of Indiana’s Absentee Ballot Voters registration requirements.” The affidavits all state: “On November 8, 2016, at the Allen County Jail, if there had been a method made available to me to cast a ballot in the election, I would have voted.” (See e.g., Aff. Long, ECF No. 45-10.) The Plaintiffs point to the petition and affidavits as the non-moving party to demonstrate that rather than an “isolated incident,” there were multiple individuals who found themselves unable to exercise their right to vote due to failures in the Defendant’s. (Pl.’s Br. in Opp. to Def.’s Mot. for Partial Summ. J. at 6.)
Affidavits are evidence and are to be considered on summary judgment. See Knox v. Weltman, Weinberg & Reis Co., L.P.A., 2013 WL 3338311, at *3 (N.D. Ind. June 28, 2013). In ruling on a summary judgment motion, the Court accepts as true the non-moving party’s evidence, draws all legitimate inferences in favor of the non-moving party, and does not weight the evidence or the credibility of witnesses. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–251 (1986). The Plaintiffs ask that the Court view the supporting documentation to suggest that the October Class Members were unable to obtain absentee ballots due to an omission in policy—namely, the inability to obtain absentee ballots. (Pls.’ Resp. to Def.’s Mot. for Summ. J. at 13.) A review of the petition and affidavits, however, indicates that the Court cannot make a
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legitimate inference that an omission in the Defendant’s policy or a widespread practice existed that violated the Class Members’ right to vote.
The Defendants cite Long v. Pierce, No. 2:14-cv-224, 2016 WL 912685, at *5 (S.D. Ind. Mar. 10, 2016) to support its contention that when inmates are free to obtain absentee ballots pursuant to jail policy and fail to do so, that this failure does not give rise to a claim against the Defendant housing them. (Def.’s Mem. in Supp. of Mot. for Partial Summ. J. at 7.) The Plaintiffs argue that the Defendant misinterprets Long v. Pierce and maintain that the case states that an inmate’s allegation of not being provided an absentee ballot to vote can survive summary judgment. (Pl.’s Br. in Reply to Def.’s Mot. for Partial Summ J. at 12.)
The Northern District of Indiana has no analogous cases to the facts presented; Long and Post v. Du Page County, Illinois, 1993 WL 101823 (N.D. Ill. Apr. 1, 1993) are the only district court decisions, within the Seventh Circuit, that have considered similar facts. However, in both Long and Du Page, the prisoners requested assistance from jail personnel and did not receive assistance. Long, 2016 WL 912685, at 5 (“Here, Long has alleged that he asked Conaway to get him a ballot so that he could vote in the 2012 General Election, and that Conaway told Long he would figure out how to make it happen, but never did”); Du Page, 1993 WL 101823, at *8 (“[The plaintiff] maintains that despite his requests, defendants collaborated to deprive him of his right to vote.”). In this case, neither the petition nor the affidavits indicate that the October Class Members requested assistance in obtaining an absentee ballot and were denied. That these October Class Members were registered to vote and failed to do so via absentee ballot is not, as the Plaintiffs argue, dispositive evidence that the prisoners were denied his or her right to vote. The petition and affidavits, because they do not indicate that the inmates requested absentee ballots, do not support an inference that the prisoners were denied their right to vote.
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The Jail Rules, which were posted such that prisoners were able to view them, informed the Class Members that they could vote by absentee ballot. (Def.’s Answer at 10.) The Plaintiffs argue that this policy is insufficient and “Plaintiffs could not vote by absentee ballots if they were unable to obtain them, and if they were unable to obtain them, their right to vote was infringed if not otherwise accommodated in the same manner as similarly situated eligible voters.” (Pls.’ Br. in Opp. to Def.’s Mot. to Dismiss at 13.) The Plaintiffs fail to present evidence, however, that any of the affiants or petitioners attempted to obtain an absentee ballot and was unable to do so
Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003) (citation omitted). “Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir. 2003). Based on this standard, the Court cannot say that the policy within the Jail Rules was insufficient without evidence that the Class Members attempted to exercise their rights pursuant to the policy. Accordingly, the Plaintiffs have failed to establish that there was an omission in the Jail Rules, and therefore does not need to address whether there was a corresponding widespread practice that violated the Class Members’ right to vote.
B. Official Policy or Custom that Caused Harm As the Plaintiffs failed to demonstrate that there was a genuine dispute of material fact as
to whether there was an omission in the Defendant’s policy that harmed the Plaintiffs, the
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Plaintiffs must now show that the official policy or custom was the “moving force” that caused the alleged constitutional violation to survive summary judgment. Grievson, 538 F. 3d at 771. The Plaintiffs argue that the Defendant may be liable in his official capacity pursuant to § 1983 under a failure to train theory as the Defendant did not act affirmatively to impose protocol, train employees, or direct proper oversite at his jail. (Pl.’s Br. in Opp. to Def.’s Mot. for Partial Summ. J. at 10.) The Plaintiffs maintain that the Defendant had total control over the Class Members’ movement, communication, and access to information. (Id. at 14.) Thus, the Plaintiffs argue that the Defendant is liable for his inaction, specifically his failure to affirmatively impose protocol such that the Class Members could exercise their right to vote.
“[A]n affirmative link” must exist between the deprivation and the defendant’s conduct. Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). “An individual cannot be held liable in a § 1983 action unless he caused or participated in the alleged constitutional deprivation.” Id. An official, however, “satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982).
The Defendant had final policymaking authority. (Def.’s Mem in Supp. of Mot. for Partial Summ J. at 9.) The Defendant argues, however, that the Plaintiffs cannot show that the Defendant committed a deliberate act which caused the alleged violation of the Class Members’ constitutional rights. (Id. at 9–10.) The Plaintiffs can demonstrate that the alleged widespread practice of denying Class Members their right to vote was attributable to the Defendant, by showing that the Defendant was “deliberately indifferent as to [their] known or obvious consequences.” Bd. Of County Comm’rs v. Brown, 520 U.S. 397, 406–07 (1997). This inaction
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must amount to “deliberate indifference, so that it is fair to infer that the inaction is itself a policy.” Harris v. City of Marion, Ind., 79 F.3d 56, 59 (7th Cir. 1996). Isolated incidents are insufficient to support a claim of deliberate indifference. Tuttle, 471 U.S. at 823–824. The Plaintiffs cite the Defendant’s answers to its request for admission, which indicate that he received no requests for absentee ballots and provided no assistance with voter registration, despite that approximately 300 inmates were eligible to vote in the general election, as an example of deliberate indifference. (Pl.’s Br. in Reply to Def.’s Mot. for Partial Summ J. at 14.) To the Plaintiffs, these admissions demonstrate that the October Class Members were unable to exercise their right to vote due to the Defendant’s failure to affirmatively act.
A defendant must, however, have actual or constructive notice of a problem. Miranda v. Cty. of Lake, 900 F.3d 335, 345 (7th Cir. 2018). “[B]efore a municipality may be held liable under a ‘failure to train’ theory, it must first be established that the defendants were on notice of constitutional violations committed by their inadequately trained employees.” Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir. 1994). An isolated incident is insufficient to put a defendant on notice of a constitutional violation. Id. A “repeated pattern or widespread practice of constitution violations that makes the need for further training plainly obvious…can establish deliberate indifference.” Davis v. Carmel Clay Sch., 570 F. App'x 602, 608 (7th Cir. 2014). If there is no basis to think that training is inadequate, there can be no liability under a failure to train theory. Id. As with the evaluation of the previous theory, the Plaintiffs’ argument fails for the same reason—no affiant testified that he or she attempted to request an absentee ballot.
The Plaintiffs’ evidence, the petition and affidavits do not demonstrate that there was an attempt to exercise the right to vote via absentee ballot. Without such an affirmative attempt, the Defendant could not have had a basis to think that the training was inadequate. That the October
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USDC IN/ND case 1:17-cv-00124-DRL document 52 filed 04/03/19 page 13 of 13 Class Members were eligible to vote via absentee ballot and failed to do so does not mean that the Defendant was on notice that training was inadequate. Thus, the Plaintiffs have not demonstrated that there is a genuine dispute of material fact as to whether the Defendant’s failure to train resulted in the disenfranchisement of the October Class Members.
CONCLUSION The Plaintiffs have not demonstrated that there is a genuine issue of material fact for trial with respect to the October Class Members. For the foregoing reasons, the Court GRANTS the Defendants’ Motion for Partial Summary Judgment [ECF No. 43]. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the claims of Class Members incarcerated in the Allen County Jail on or before October 31, 2016. The claims of the Class Members incarcerated in the Allen County Jail after that date remain pending. SO ORDERED on April 3, 2019.
s/ Theresa L. Springmann CHIEF JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
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