1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LANA CANEN, )

)

Plaintiff, )

)

v. ) Case Number: 3:14-CV-00315

)

DENNIS CHAPMAN, in his Individual )

capacity as Deputy for the Elkhart County )

Sheriff Department, and MARK DAGGY, )

in his individual capacity as Officer for )

the Elkhart Police Department, ) 

)

Defendants. )

DEFENDANT MARK DAGGY’S MEMORANDUM OF LAW IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

Defendant, Mark Daggy, by counsel, submits the following Memorandum of Law in 

support of his Motion for Summary Judgment.

Introduction

A jury in Elkhart Circuit Court convicted Lana Canen of felony murder in 2005 and the 

court sentenced her to serve 55 year’s incarceration. In 2012 she was released after the State of 

Indiana agreed to vacate her conviction because a fingerprint introduced as evidence in her trial

was erroneously identified as being hers by the State’s expert witness, Dennis Chapman. Canen

was remanded by the Court of Appeals for re-trial and the State later voluntarily dismissed the 

charge without prejudice to refile. 

Canen filed this suit against Chapman, an Elkhart County Deputy Sheriff, in his 

individual capacity, and Mark Daggy, an Elkhart City police officer, in his individual capacity, 

under 42 U.S.C. §1983 alleging “willful and wanton violations of her civil rights to be secure in 

her person and liberty under the Fourth and Fourteenth Amendments to the United States 

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Constitution.” [DE 1-1] Her suit “seeks to redress her false imprisonment, malicious 

prosecution 1 and violation of her right of due process.” [DE 1-1 p. 4] Specifically, she alleges

that Chapman was unqualified to give an expert opinion on the fingerprint and that his opinion 

was false and that Daggy knew that he was unqualified and he did not fully disclose that fact to 

her lawyer but instead endorsed and advocated Chapman’s expert testimony. [DE 1-1, pp. 4-5] 

Canen claims that the only evidence against her was the testimony from Chapman and Daggy 

that her fingerprint was found on a plastic container and that she would not have been arrested 

for murder had they fully disclosed Chapman’s lack of qualifications. [DE 1-1 pp. 3 and 5]

The facts are uncontroverted that Officer Daggy was not involved with processing or 

handling of any print evidence, did not know Chapman or his qualifications communicate with 

and did not testify about the fingerprint evidence. Because there is no genuine issue of material 

fact in dispute involving Canen’s claims against Daggy, he requests that the Court grant him 

summary judgment.

In addition, Canen and her attorneys knew that no facts supported her claims against 

Daggy yet she pursued this suit to harass him in retaliation for his investigation of her on a prior 

criminal matter and he asks the Court to award fees and costs incurred in his defense of this 

frivolous lawsuit.

Statement of Material Facts

Daggy background and training 

Mark Daggy is a Detective with the City of Elkhart Police Department, having begun his 

employment with the department in 1994 as a patrolman in the uniform division. Before 

becoming a police officer, Daggy graduated from college with a Bachelor’s Degree in Criminal 

Justice and worked as a jail and juvenile probation officer in St. Joseph County. Ex. 2, 

 1 In the introduction to the Complaint, Canen states that she seeks compensation under 42 U.S.C. §1983 to redress 

her malicious prosecution but she made no allegations in support of that claim in the remainder of the Complaint nor 

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Deposition of Mark Daggy, 10/28/14, pp. 8, l. 10-25; 9, l. 12-25; 10, l. 21-25. Upon being hired 

by the Elkhart Police Department, Daggy attended and passed the Indiana State Law 

Enforcement Police Academy course and underwent supervised, on the job training through a 

field training officer for several months and has continued his formal training and certification in 

various types of police work, including investigations. Id. at pp. 17, l. 2-25; 18, l. 1-25; 28, l. 2-

25; 29, l. 1-5. After patrol work, Daggy worked in the anti-crime unit targeting street crime for 

several years and then as an undercover officer for five years and became a detective in the 

Criminal Investigation Unit in 2001 where he investigated burglaries, thefts and domestic battery 

cases. Id., pp. 34, l. 1-25; 35, l. 1-20. Daggy was working burglary cases at the time Helen 

Sailor was murdered. Id., at p. 40, l. 12-25.

Helen Sailor’s murder

On Thursday, Thanksgiving Day, November 28, 2002, ninety four year old Helen Sailor

was murdered in her apartment at the Waterfall Drive Highrise apartment building, in Elkhart, 

Indiana. [DE 1-1, p. 3, Complaint.] Waterfall is an income subsidized housing unit and many of 

its tenants are elderly or disabled. Ex. 2, Daggy dep., pp. 50, l. 11-25; 51, l. 1-8; Ex. 4 , Lana 

Canen deposition, 5/12/15, p. 102, l. 10-12. Canen lived in an apartment in the same complex at 

the time. Ex. 4, Canen dep. pp. 100. l. 25; 101, l. 1-10. Sailor’s body was discovered in her 

bedroom by her relatives, Larry and Carol Converse, and her home health nurse, Carolyn Hoffer, 

on Friday morning, November 29, 2002, after they used their key to gain entrance into her 

locked apartment door when she failed to respond to their calls. Ex. 1, Trial Transcript, State v. 

Canen, Cause No. 20CO1-0309-MR-00155, Elkhart Circuit Court, 8/8/2005, C. Hoffer Trial Tr.,

pp. 312-313; 324-328; Ex. 1, C. Converse Trial Tr., pp. 335-336, 341, l. 8-2 and 342, l. 1-18. 

Converse reported to Elkhart Police Officer Stockman upon his arrival at the apartment that 

Sailor’s apartment door had a deadbolt and it could not be locked just by pulling the door shut

 

does she make any allegations of malicious prosecution against Daggy. Compare, DE #1-1, p. 1 and p. 5. 

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but instead it required that a key be used. Id.; Ex. 5, Officer Barnard L. Stockman, 11/29/02 

Case Supplemental Report, p. 3 of 3; Ex. 1, C. Converse Trial Tr., p. 341, l. 21-25; Ex, 1, C. 

Hoffer, Trial Tr. p. 326, l. 11-21. 

An autopsy was performed later that same day that found the cause of Sailor’s death was 

strangulation by use of a rope with evidence that she also suffered blunt force injuries to her 

head, face, upper extremities and back. Ex. 1, Dr. Joseph Prahlow, forensic pathologist, Trial 

Tr., pp. 348-352, 356-357, 373, 375-385 and 390-393.

Crime scene investigation

The first Elkhart Police officer to arrive at the scene was Lt. Thomas Lerner and he 

immediately requested that Detective Joel Bourdon, the Department’s evidence technician who is 

trained in crime scene investigations, come to the apartment to process evidence. Ex. 6 affidavit, 

Joel Bourdon, 7/9/15, ¶ 3 with attached Exhibit A, 3/24/03 Case Supplemental Report/Evidence 

Tech Report; Ex. 1, Joel Bourdon Trial Tr., pp. 541-546, and p. 547, l. 1-17; Ex. 5, Stockman 

Case Supplemental Report, 11/29/02, p. 2 of 3. Bourdon arrived at about 8:15 a.m. and noted that 

the scene was secured by an officer at the door and that there was no evidence of forced entry or 

damage to the locking mechanism in the apartment door. Ex. 6, Bourdon aff., with attached Ex. 

A, 3/24/03 Case Report, p. 3 of 10. With the assistance of a uniformed technician officer, 

Timothy McConnell, Bourdon took photographs and video of the scene, gathered and secured

evidence, dusted and lifted prints, placed the evidence in sealed plastic bags and maintained their 

chain of custody. Ex. 1, Bourdon Trial Tr. pp. 541-547; 570, l. 25 to 571, l. 1-15; 587, l. 22-25 

and 588, l. 1, 591, l. 20-25 and 592, l. 1-2 and l. 15-25; 593, l. 11-18; 595, l. 7-25 and 596, l. 1-

25; 599, l. 20-25; 600-601 and 602, l. 1-17. Bourdon collected samples of a glimmer substance 

and a pink tinted substance that was spread over Sailor’s left hand and some of the items 

recovered from the scene and samples were collected. Id., Trial Tr. pp. 555, l. 12-25, 556, l. -4. 

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One of the items bagged and removed from the apartment was a plastic tub that was filled with 

medicine bottles setting on the stove. Ex. 6, Bourdon affidavit with attached Ex. A, 3/24/03

Case Supplemental Report, page 1of 10; Ex. 1, Bourdon Trial Tr., pp. 558, l. 3-9 with trial 

exhibit #22 (photo of plastic tub on stove); 592, l. 11-25. 

Elkhart Police detectives, Todd Thayer and D’Andre Christian, were the initial

investigators for the Sailor murder. Ex. 2, Daggy dep., p. 43, l. 11-19, Ex. 1, Todd Thayer, trial 

testimony, pp. 637, 638, l. 1-6. Thayer and Christian went to each apartment in the complex 

asking the residents if they saw anything that might help in the investigation. Ex. 1, Thayer Trial 

Tr., p. 639, l. 7-15. Thayer and Christian went to Canen’s apartment several times but no one 

answered so they left a business card but when she did not call them they returned within a few 

days. When Thayer knocked on her door he could see light and shadows moving under the door

as if someone was standing on the other side. Ex. 1, Thayer Trial Tr., pp. 639, l. 16-25, 640, l. 1-

10. With the recent murder in the same building, Thayer was concerned that something might be 

wrong inside the apartment that prevented Canen from answering and he requested the building 

maintenance person to open her door. Once the door was unlocked, however, Canen spoke up 

while standing at the door that was still closed with a chain. Thayer asked her if she was aware of 

Sailor’s death and Canen answered that she knew Sailor and had heard about her death but that 

she was out of town visiting friends and family over the Thanksgiving holiday. Ex. 1, Thayer 

Trial Tr., pp. 640, l. 12-25, 641, l. 1-17; Ex. 4, Canen dep. p. 99, l. 1-10. By 2003, the initial 

group of investigators did not charge anyone in the Sailor murder and the case was unresolved. 

Ex. 2, Daggy dep. p. 160, l. 4-16; Ex. 1, Daggy Trial Tr., pp. 395, 400, l. 25, 401, l. 1-25, 402, l. 

1-3; Ex. 1, Conway Trial Tr., pp. 478, l. 20-25, 479-480, 481, l. 1-5

On May 8, 2003, Bourdon sent items that he had processed from Sailor’s apartment 

including clothing, hair, blood, fingernail clippings, liquid substance, saliva swabs and adhesive 

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lifters of fingerprint impressions and foot impressions to the Indiana State Police Laboratory 

requesting serology examinations, DNA tests and any matches of any unknown contributors to 

the Combined DNA Index System known as “CODIS.” He also requested Finger/palm print 

examinations and impression comparisons and entering any unidentified prints into the 

Automated Fingerprint Identification System “AFIS.” Ex. 6, affidavit, J. Bourdon, ¶ 5 with 

attached Exhibit B, Request for Laboratory Examination. 

Prior investigation of burglaries at Waterfall

At the time of Sailor’s murder, Daggy was still working burglary cases and heard about 

the discovery of her body on the news and at a morning squad briefing when Det. Thayer spoke 

with him about discussing his investigation of a string of eight burglaries at the Waterfall 

Highrise building that occurred from March through May 2002. Ex. 2, Daggy dep., pp. 48, l. 5-

25; 49, l. 1-25; 50, l. 1-10; 140, l. 10-20. Daggy told Thayer that Canen was the prime suspect in 

those burglaries which all had in common the fact that there was no forced entry into the victim’s 

apartments and it appeared that someone used a key to unlock the doors. Ex. 2, Daggy dep., pp. 

49, l. 19-24; 50, l. 1-25; 51, l. 16-18, 155, l. 11-15, with attached deposition Exhibit 2, 4/9/02

Burglary Incident/Investigation Report. Canen became a suspect after a resident of the 

apartment, Paula Sjogren, told Daggy that prior to the burglary of her apartment, Canen asked to 

use her bathroom and when she allowed her to do so Canen commented about the medications

she saw in the bathroom cabinet. Sjogren told Daggy that she warned Canen not to look into her 

private things and later Canen returned to her apartment to apologize but after she left Sjogren 

discovered that her car keys were missing. Ex. 2, Daggy pp. 51, l. 16-25; 52, l. 1-25; 53, l. 1-8;

146, l. 4-25; 147, l. 1-25; 178, l. 2-11; deposition Ex. 9, 4/9/02 Burglary Case Supplemental 

Report, p. 2 of 2; deposition Ex. 7, 4/2/02 Burglary Incident/Investigation Report, p. 2 narrative.

The manager of Waterfall, Danalee Meitzler, told Daggy that Canen had dated the building’s

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former maintenance man, Curtis Pratcher, who had a master key for all the apartments in the 

building and that Canen may have duplicated it. Ex. 2, Daggy pp. 51, l. 16-25; 52, l. 1-25; 53, l. 

1-8; 146, l. 4-25; 147, l. 1-25; 178, l. 2-11; deposition Ex. 9, Case Supplemental Report 4/8/02 

interviews with D. Meitzler. Daggy made several attempts to interview Canen about the 

burglaries in March 2002 at her Waterfall apartment, but she didn’t answer her apartment door. 

Ex. 2, Daggy pp. 65, l. 6-25; 66, l. 1-5; 150, l. 20-25; 151, l. 1-5. Daggy interviewed Canen at 

the police station on April 22, 2002, when, after signing her Miranda warnings, she denied any 

knowledge of the burglaries and told Daggy that she would say more but was afraid of getting 

evicted from the Waterfall Apartments because drugs were somehow involved. Ex. 2, Daggy

dep. pp. 70, l. 11-25; 71, l. 1-9; 152, l. 11-25; 153, l. 1-14; with attached deposition Ex.10, 

4/22/02 signed Legal Rights Form and deposition Ex. 12, 10/28/02 Burglary Case Supplemental 

Report. 

Daggy interviewed Pratcher on October 7, 2002, who told him that he dated Canen in 

August 2001 and that she stayed the night at his apartment and the next day he discovered that 

his keys, including the master key to the Waterfall apartments, were missing and that Canen was 

the only person in his apartment and the only one who could have taken the keys. Ex. 2, Daggy

dep. pp. 52, l. 2-24; 77, l. 13-18; 78, l. 24-25; 79, l. 1-2; 149, l. 5-11 with attached deposition Ex. 

11, 10/7/02 signed statement of C. Pratcher and Deposition Exhibit 12, 10/28/02 Case 

Supplemental Report. Daggy, however, could not independently verify that the master key was 

taken by Canen and because no key was ever found he did not think he had probable cause or 

enough evidence to convict so he did not charge her and the burglary investigation was 

inactivated. Ex. 2, Daggy dep. pp. 55, l. 1-7; 78, l. 16-23; 98, l. 9-12; 149, l. 16-17; 159, l. 22-

25; 160, l. 1-3.

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On April 14 2003, Canen had an outstanding warrant for check deception and Daggy saw 

her walking on Johnson Street in downtown Elkhart and arrested her and transported her to the 

city jail, where she was booked, photographed and printed, although he did not question her. 

Ex. 2, Daggy dep. pp. 153, l. 22-25; 154, l. 1-11 with Deposition Exhibit 13, booking photo, 

Arrest Report and ink and rolled finger/palm prints. 

Homicide Unit investigates Sailor murder

On July 28, 2003, the Elkhart Police Department created a Homicide Unit to investigate 

unresolved murder cases and Daggy volunteered for that duty. Ex. 2, Daggy dep. pp. 40, l. 16-25, 

41, l. 1-25; 42, l. 1, 99, l. 18-19; Ex, 1, Daggy Trial Tr. pp. 412, l. 21-25 and 413, l. 1-11; Ex. 3, 

Affidavit of Mark Daggy, 7/14/15 ¶2. Other members of this new unit were Lt. Paul Converse, 

Detective Carl Conway, Lt. Detective Peggy Snider, and Sergeant William Wargo. Ex. 2, Daggy 

dep. p. 88, l. 14-17. The Sailor murder case was the first unresolved case to come up for review

by the Homicide Unit and Detective Conway was one of the investigators. Ex. 2, Daggy dep. p. 

88, l. 7-9; p. 89, l. 23-25 and 90, l. 1; 100, l. 6-9; C. Conway, Trial Tr., pp. 478, l. 20-25, 479-

480, 490, l. 1-9. The decision to pursue that case and to divide responsibilities for the 

investigation was made by Lt. Converse. Ex. 2, Daggy dep. p. 88, l. 18-25. Daggy’s job was to 

interview witnesses. Ex. 2, Daggy dep. p. 90, l. 13-16. The concept of officers of a Homicide 

Unit all working on one case allowed for concentrated effort in reviewing and analyzing the 

evidence. Ex.1, Daggy Trial Tr., pp. 402, l. 4 -25, 403, l. 1-20. When the case was picked up by 

the Homicide Unit, Detective Conway reviewed in detail all the documents from Thayer and 

Christian in order to follow up on possible leads and all the detectives in the Homicide Unit reinterviewed witnesses including the Waterfall apartment residents. Ex. 2, Daggy dep. p. 100, l. 

1-5; Ex. 1, Daggy Trial Tr., p. 403, l. 4-8; Ex.1, C. Conway, Trial Tr., pp. 478, l. 20-25, 479-

480, 481, l. 1-8. As a result of the information gathered names of suspects were eliminated . 

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Ex.1, Daggy Trial Tr., pp. 413, l. 11-25 - 419, l. 1-2. Other leads created during these interviews 

led to Canen as a suspect in Sailor’s murder. Ex. 2, Daggy dep. pp. 161, l. 1-3; Ex. 1, C. Conway

Trial Tr., pp. 506-515.

Macioce and Lambert tell police that they saw Canen at Waterfall on the evening of the 

murder.

On August 8, 2003, Florence Macioce, who lived at Waterfall Highrise, was interviewed 

by Conway and Daggy and told them that on Thanksgiving evening she was in the lobby of the 

building waiting for her son to visit and she saw Canen outside pacing back and forth looking as 

if she were upset. About ten minutes later she saw a man named Charlie Lambert exit the 

elevator and talk with Canen in the parking lot and then saw them both leave together in 

Lambert’s vehicle. She also said that weeks later Lambert was with her in the laundry room at 

Waterfall and told her not to say anything about seeing him with Canen that night because he did 

not want to get involved. Ex. 2, Daggy dep. p. 162, l. 17-24; Ex. 8, 9/12/03, C. Conway Case 

Supplemental Report.

2

 Macioce testified to these facts at Canen’s trial (with the exception as to 

what Lambert said to her in the laundry room.) Ex.1, F. Macioce Trial Tr. 47l-477, l. 1-3. 

After talking to Macioce, Detective Conway interviewed Charlie Lambert, who told him 

that he saw Canen at Waterfall Highrise on Thanksgiving evening and she asked him to give her 

a ride to her boyfriend’s apartment, which he did. He told Lt. Converse in a taped statement that 

Canen kept looking around the corner of the building and that she had a large bag with her when 

she left in his car. Ex. 2, Daggy dep. pp. 162, l. 6-25 and 163, l. 1; Ex. 9, C. Conway 9/4/03 Case 

Supplemental Report; Ex, 10, Lambert transcribed statement of 9/10/03, pp. 1-6. Lambert said 

that he later saw Macocie in the laundry room and told her not to tell anyone that he gave Canen 

a ride and that he was scared of Canen because she was capable of breaking into apartments and 

 2 The detectives documented what the witnesses said in their Case Supplementary Reports, which were kept in 

the normal course of business etc. Ex. 3, Affidavit of Mark Daggy, 7/14/15.

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taking checkbooks. Ex. 2, Daggy dep. pp. 162, l. 22-25, 163, l. 1-14, Ex. 12, 9/10/03 Case 

Supplemental Report, pp. 8-9. Lambert testified at trial about seeing Canen at Waterfall, her 

pacing and giving her a ride. C. Lambert Trial Tr. 457-468, l. 1-11.

The plastic tub is processed for print analysis

On August 12, 2003, Detective Wargo of the Homicide Unit reviewed the photos taken of 

the apartment crime scene and noticed that there was a plastic container or tub holding 

medication bottles that was on the top of the stove. Ex. 7, 8/20/2003 W. Wargo Case 

Supplemental Report, crime scene photo review of plastic tub.

On August 27, 2003, Detective Snider of the Homicide Unit asked Bourdon to process

for prints items found at Sailor’s apartment, including the plastic tub holding the medicine 

bottles pictured in the photograph Wargo reviewed. Bourdon lifted 8 prints from the tub, 

including one that he marked “M” from the backside of the container. Ex. 6, aff. J. Bourdon, ¶’s 

6-8; with attached Affidavit Exhibit C, 9/2/03 Case Supplementary Report; Bourdon Trial Tr.

592–600. These items had not been previously processed for prints and were not sent to the 

Indiana State Police Laboratory on May 8, 2003. Ex. 6, Bourdon aff. at ¶ 6. Det. Conway asked 

Bourdon to compare any print impressions that were lifted from these items to any known prints 

of Canen so Bourdon retrieved from the Elkhart Police Department Records Division an ink 

rolled fingerprint card of Canen’s April 14, 2003 arrest. Ex. 6, Bourdon aff.at ¶ 7 with attached 

Affidavit Exhibit C, p. 2; Bourdon Trial Tr., pp. 599, l. 20-25, 600, 601, l. 1-3. Because the 

Indiana State Police Laboratory had not yet responded to the May 8 request for print analysis and

to avoid delay in analyzing the additional prints, Bourdon asked Deputy Chapman on August 29, 

2003, if he was willing to perform the latent print examination and give an opinion on any 

match. Ex. 6, Bourdon aff. ¶10; Ex.1, Bourdon Trial Tr., p. 601, l. 4-25, 602, l. 1-17. Chapman

agreed to review the prints and Bourdon delivered the lifted impressions and the ink and rolled 

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print card to him. Id. Chapman was selected by Deputy Prosecuting Attorney Becker because he 

held himself out in the law enforcement community as an experienced Federal Bureau of 

Investigation’s trained fingerprint examiner and forensic witness who could testify about his 

opinion and because the Elkhart Police Department and the Elkhart Prosecuting Attorney had 

used him in cases where he examined latent prints and offered opinions in past trials and neither 

Bourdon nor Becker had any information that Chapman was unqualified to render such opinions. 

Ex. 6, Bourdon aff. ¶ 10; Ex. 14, Deputy Prosecuting Attorney Vicki Becker 10/29/14 

deposition, pp. 39, l. 14-19, 68, l. 2-12, 72, l. 17-25 and 73, l. 1; 82-87; Ex. 1, Dennis Chapman

Trial Tr. 613-620, l. 1-4.

Porter tells police that Canen said that she and Royer went into an older woman’s 

apartment to get money resulting in death on Thanksgiving

In 2003, Nina Porter was a friend and neighbor of Canen’s and they both lived in the 

same four unit apartment house on Johnson Street in Elkhart. Ex. 1, N. Porter Trial Tr., pp. 698, 

l. 24-25, 699, 700, l. 1-18, 708, l. 3-5, 709, l. 20-23. On September 2, 2003, Porter was pulled 

over by Cpl. B. Kruzynski of the Elkhart Police Department in her vehicle and ticketed for 

driving without a license. Canen, who was in the car at the time, was arrested on an outstanding 

warrant for check deception. Ex. 1, Porter Trial Tr., p. 708, l. 7-12. Later that day, Porter was 

brought to the Elkhart Police Department where she was interviewed by Detective Conway and 

gave a tape recorded statement that Canen and her were drinking on the evening of July 3, 2003, 

at the patio of their apartment house and Canen told her that she went into an older lady’s 

apartment to get money from the woman but when she refused Canen brought a man named

Andy Royer back to scare the older lady and that no one was supposed to get hurt. Porter said 

that as Canen got up to get another drink she said “Thanksgiving. Thanks for giving death.”

Conway trial testimony, p. 481, l. 16-25; Ex. 11, C. Conway 9/2/03 Supplemental Case Report, 

N. Porter transcribed statement, pp. 9-12. At trial, Porter testified to these same facts as well as 

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the fact that Canen exerted extraordinary control over Royer and that he would do anything she 

said. Ex. 1, Porter Trial Tr., pp. 696, l. 10-25, p. 709, l. 10-17. 

Andrew Royer admits that he and Canen killed Saylor

After hearing Porter’s statement, Det. Conway interviewed Royer at the police station on 

September 3, 2003. Ex. 1, Conway Trial Tr., pp. 481, l. 16-22, 482, l. 1-18; Ex. 2, Daggy dep. p. 

161, l. 9-14. On September 3, 2003, after giving Royer his Miranda rights and after Royer 

signed his legal rights form, Conway questioned Royer for about an hour and a half in a preinterview process which was a casual conversation used to build rapport with the individual. Ex. 

1, Conway Trial Tr., pp. 484, l. 14-17, 485, l. 8-14, 486, l. 2-25, 487, 488, l. 1-7, 489, trial 

exhibit 15. During this pre-interview session, Royer made admissions about Sailor’s murder. 

Id., at p. 488, l. 8-12. Conway prepared a written summary of what Royer told him. Ex. 12, 

Conway’s Case Supplemental Report, pp. 1-6. In the pre-interview process, Royer told Conway 

that he was there with Canen when Sailor was killed in her apartment and that Canen went there 

because she needed money and that she actually killed Sailor by striking her left temple with a 

metal bar when she kept refusing to give her money and that he and Canen went through Sailor’s 

apartment looking for things to take and he took a ring, watch and necklace and that he attempted 

to clean the apartment with some towels that he disposed of by putting in the garbage chute and 

they then both left the apartment and separated. Id. p. 2. Royer’s statement corroborated some 

of the evidence that was gathered from the original crime scene investigation such as the fact that 

Sailor was strangled, that it was done with a rope, how the towel was disposed of and items used 

from the apartment. Conway Trial Tr., pp. 491, l. 5-25, 492-493. 

Conway decided to audio tape Royer’s confession because Royer was getting tired. Id., 

p. 494, 1-14. During the taped confession, which was transcribed, Royer’s recollection of events 

was different. He stated that he and Canen smoked marijuana that day and Canen suggested that 

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they go to Sailor’s apartment to see if she had any money. Ex. 13, Case Supplemental Report, 

transcription of 9/3/03 taped statement of A. Royer, pp. 2-3. Royer said he knew Sailor from 

seeing her in the hallways but had never actually been in her apartment before. Id., p. 4. Royer 

said that and when they got there Canen asked her for $200. Sailor said she didn’t have that kind 

of money on her and Canen was upset and hotheaded about that response. Royer stated that he 

told Sailor that she better give them money and slapped her in the face and she gave Canen only 

$20 and they left. Royer said he didn’t get any of the money from Canen so he went back to 

Sailor’s apartment and demanded money and chocked her with his hands or a rope and she fell to 

the kitchen floor. He said the he took jewelry and before he left he cleaned the apartment by 

using a hand towel and throwing it down the garbage shoot. This tape was played to the jury at 

trial excluding any references to Canen. Conway Trial Tr. 494, l. 15-25, 495, 496, l. 1-5.

Conway ended Royer’s first taped interview to let him rest and eat and placed him under 

arrest for Sailor’s murder. Id., p. 500, l. 8-23. The following day, September 4, 2003, Conway 

again gave Royer his Miranda warnings and he signed the advice form and a second taped 

interview was held. Id., pp. 502-503, with trial exhibit 17. In this taped statement, which was 

also transcribed, Royer changed his recollection of events again and said that he went to Sailor’s 

apartment alone on the evening of Thanksgiving day to talk to her about religion, got into an 

argument about money and he hit her in the face, strangled her with his hands in the kitchen and 

used a rope around her neck to drag her into the bedroom where he poured some glimmery

lotions on her body. Ex. 13, Case Supplemental Report, transcription of 9/4/03 taped statement 

of A. Royer, pp. 1-7. He told Conway that he went through her jewelry box and took a watch, 

earrings, necklace and bracelets and then cleaned the apartment with wet towels and put them in 

the garbage shoot and left. Id., pp. 8-13. This statement was played to the jury at trial. Conway, 

Trial Tr., pp. 504-505.

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Chapman gives his opinion that one of Canen’s known fingerprints matches the lifted 

print “M” from medicine tub.

On March 5, 2004, Chapman sent his written report to Bourdon with his opinion that

Canen’s left little fingerprint from the print card matched the latent print “M” lifted by Bourdon 

from the medicine tub. Ex. 6, aff. Bourdon with attached Ex. D; Ex. 15, Chapman dep. 11/18/14, 

pp. 86, l. 22-25 and 87, l. 1-1, Chapman, Trial Tr. 620-621. He did not have any conversations

about the report or the prints with Bourdon after he delivered the report. Id., pp. 85, l. 4-8; 89.

At the time, Chapman had worked for the Elkhart County Sheriff’s Department for 12 years and 

was trained by the Federal Bureau of Investigation and worked for it as a fingerprint examiner 

for two years and had experience in over 100 cases to make fingerprint comparisons and had 

experience in attempting to recover latent prints from a crime scene. Ex. 1, Chapman, Trial Tr., 

pp. 613-618, l. 1-6. Chapman examined the prints and made comparisons of characteristics of 

the known and latent prints gave his opinion that the print in lifter “M” matched the known print 

of Canen’s left hand little finger. Ex. 1, Trial Tr., pp. 620-627.

On September 2, 2004, Canen was charged with Felony Murder while committing a 

Robbery. Daggy signed the information and accompanying affidavit to show probable cause 

reciting the evidence collected in support of the charge. Ex. 16, Information and Affidavit. By 

the time of trial, Conway had left the Homicide Unit and Daggy sat at counsel table with the 

prosecutors. Ex. 2, Daggy dep. p. 90, l. 2-8. Daggy did not interview Porter, Canen or Royer in 

2003 although he observed parts of their interviews and interviewed Royer in 2004. Ex. 1, 

Daggy Trial Tr. 395-412.

Gathering, storing and transferring fingerprint evidence is performed by a trained 

evidence technician of the Elkhart Police Department. Daggy is not an evidence technician nor 

is he trained in fingerprint identification and did not collect, store or handle fingerprint evidence. 

Ex. 2, Daggy dep. at pp. 21, l. 24-25; 22, l. 1-10; 84, l. 20-25; 85, l. 1-2; 120, l. 12-25; 121-124. 

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The print evidence was lifted, maintained and forwarded to the Indiana State Police Laboratory 

and Deputy Chapman for analysis by Detective Technician, Joel Bourdon, of the Elkhart Police 

Department. Ex. 2. Daggy dep., p. 122, l. 5-20. Daggy did not gather or handle the prints from

the Saylor murder scene. Id. He did not know what happened in the Sailor investigation from 

April 2003, after he arrested Canen on the outstanding warrant, until August 2003 when he 

joined the Homicide Unit. Ex. 2, Daggy dep. p. 99, l. 5-9. Daggy did not know when Chapman 

became involved in the investigation nor did he know that he was involved in the case as a 

fingerprint expert. Id., p. 99, l. 20-25. Chapman never spoke to Daggy. Id., p. 81, l. 1-4. 

Chapman never heard of Daggy endorsing his personal qualifications or advocating his expertise 

as a print examiner. Id., p. 91, l. 1-7. Daggy was not involved in the forensic analysis of 

evidence in the Sailor case and did not communicate with the Indiana State Police or Chapman 

about reviewing the print evidence nor was he familiar with Chapman’s involvement in the 

investigation and he did not speak with the prosecuting attorneys about Chapman. Id., pp. 102-

103, 111-112.

Chapman erroneously identified the print as belonging to Canen. [DE 1-1, p. 4] Ex. 15, 

Chapman, dep. p. 80, l. 24-25. 

Canen’s became upset with Daggy harassing about her involvement in the burglaries at 

the Waterfall apartments and that is one of the reasons she sued him. Ex. 4, Canen dep. p. 79, l. 

24-25, 80, l. 1, p. 81, l. 1-25.

STANDARD OF REVIEW 

Summary judgment is appropriate “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” Fed. R. Civ. Pro. 56(c). Rule 56(c) further requires the entry of summary 

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judgment, after adequate time for discovery, against a party “who fails to make a showing 

sufficient to establish the existence of an element essential to that party’s case, and on which that 

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

In other words, the record must reveal that no reasonable jury could find for the non-moving 

party. Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994).

Argument

I. There is no evidence that Daggy handled the fingerprint evidence, 

communicated with Chapman or knew of his qualifications.

A. Individual liability standard

Canen asserts liability against Daggy in his individual capacity under 42 U.S.C. §1983

alleging that her rights to due process and to be free from false imprisonment were violated 

when:

• Daggy originally sent evidence to the Indiana State Police that was later 

withdrawn for unknown reasons. [DE #1-1, p. 3, ¶ 10];

• Daggy testified that Canen’s fingerprint was found on a Tupperware container 

believed to have been handled by the killer inside Sailor’s apartment [DE #1-1, p. 

3, ¶ 13]; 

• Daggy endorsed and advocated Chapman’s expert testimony. [DE #1-1, p. 5, ¶ 

28];

• Daggy did not fully disclose Chapman’s lack of qualifications in fingerprint 

identification, and had he done so she would not have been arrested for Sailor’s 

murder. [DE #1-1, p. 5, ¶ 30].

Individual capacity lawsuits seek to impose personal liability on government officials for 

actions taken under color of state law. Townsend v. Fairman, 1996 U.S. Dist. LEXIS 2502, No. 

95 C 0882, 1996 WL 9914, at *2 (March 1, 1996 N.D. Ill.) To state a claim for personal liability 

under section 1983, Canen must show evidence that Daggy was personally involved in the 

deprivation of her constitutional rights. Whitford v. Boglino, 63 F.3d 527, 530-31 (7th Cir. 1995). 

"Personal involvement" requires an overt act, or a failure to act "with a deliberate or reckless 

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disregard of plaintiff's constitutional rights . . . " Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 

1994); Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985). The official need not have directly 

participated in the alleged constitutional deprivation but the conduct causing the constitutional 

deprivation must occur at the direction or knowledge and consent of the defendant official.

Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). There is no evidence that Daggy was

involved in handling fingerprint evidence or communicating with the Indiana State Police Crime 

Lab or Chapman. Daggy had nothing to do with the processing or analyzing of the prints from 

the Sailor crime scene. Because Daggy did not know Chapman’s expert qualifications or 

communicate with him on the investigation, the plaintiff cannot prove that he willingly 

suppressed exculpatory evidence from her attorney and summary judgment on plaintiff’s claims 

against him is appropriate.

B. Daggy did not handle any print evidence or send evidence to the Indiana 

State Police Lab 

Canen claims that Daggy sent evidence from the Sailor crime scene to the Indiana State 

Police Crime Lab and then withdrew the evidence and gave it to Chapman. However, it is 

undisputed that Evidence Technician, Lt. Joel Bourdon processed all the Sailor crime scene

evidence from November 29, 2002 to December 14, 2002, and on May 8, 2003 he sent evidence, 

including prints, to the State Police Crime Lab for analysis. Ex. 1, Bourdon, Trial Tr. 547-602; 

Ex. 6, aff. J. Bourdon with attached Ex.’s A-D. On August 27, 2003, at the request of 

Detectives Snider and Conway, Bourdon lifted additional prints from items recovered at the 

crime scene, including the plastic tub pictured on one of the crime scene photographs, and sent 

them to Chapman. These Case Supplementary Reports were produced to Canen prior to her 

criminal trial, and confirmed by Daggy’s deposition testimony. Ex. 1, Bourdon Trial Tr. 541-

602; Ex. 6, aff. Bourdon, with attached Ex, A, B, C, D, E, and F; Ex. 2, Daggy dep. pp. 85, l. 1-

13, 102, 111, l. 12-21, 120, l. 10-25; Ex. 14, V. Becker dep., p. 40, 50, l. 22-25, 51-52, 53, l. 1-

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14. Bourdon wrote in his Case Supplementary Reports the steps he took to process and secure 

the evidence, including print evidence, and later testified at the trial consistent with what the 

reports stated and explained the reason that he and Prosecutor Becker used the State Police Lab 

and later Chapman for analysis was because of the Crime Lab’s delay in processing print 

evidence. Ex 6, aff. Bourdon. Daggy was not involved in sending the prints and there are no 

records showing he processed evidence or communicated with the State Police Crime Lab or 

Chapman. He testified that he did not know who made the decision to involve the Indiana State 

Police or Chapman in reviewing the fingerprint evidence and that testimony is uncontroverted. 

Ex. 2, Daggy dep. p. 102.

C. Daggy did not testify that Canen’s fingerprint was found on a Tupperware 

container nor did he endorse and advocate Chapman’s expert testimony.

Daggy testified at trial that his responsibility on the newly created Homicide Unit was to 

re-interview witnesses and follow leads from any statements given. He also testified that he 

observed certain witnesses being interviewed by other officers and he did not interview Porter, 

Canen, or Royer before his arrest. Daggy did not testify about the fingerprint found on the 

plastic tub nor did he testify about Chapman’s qualifications or expert opinion. Ex. 1, Daggy 

Trial Tr. 395-421. Moreover, Chapman only testified at Canen’s trial and Daggy neither 

advocated nor endorsed his testimony. Canen’s claim that Daggy testified on these matters is 

therefore not supported by any facts and must fail as a matter of law.

Canen may attempt to characterize Daggy’s affidavit of probable cause in support of the 

State’s charging information as “testimony” in an attempt to argue that the affidavit improperly

advocated or endorsed Chapman’s lack of qualifications. Ex. 16, Aff. Prob. Cause, 9/2/2004. 

Such an argument fails for the several reasons. First, there is no evidence that Daggy (or anyone 

else) knew of Chapman’s lack of qualifications to review the prints. Daggy’s probable cause 

affidavit does not mention Chapman or his qualifications and does not endorse or vouch for him. 

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Secondly, as stated above, the first time Chapman testified about the fingerprint was at 

Canen’s trial on August 8, 2005, nearly a year after Daggy signed the probable cause affidavit so

there was no testimony by Chapman that Daggy could have endorsed or advocated when he 

signed the probable cause affidavit. 

Finally, an affidavit of probable is not testimony, rather it is a sworn statement of facts 

which the State believes are sufficient to show that the crime charged has been committed by the 

defendant. See I.C. 35-33-5-2. An affidavit need not be based upon the officer’s personal 

knowledge and he may rely upon hearsay, which in this case is Chapman’s written expert 

opinion, as long as a totality of the circumstances corroborates the hearsay. The probable cause 

standard is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176 

(1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. 

These are not technical; they are the factual and practical considerations of everyday life on 

which reasonable and prudent men, not legal technicians, act." Id., at 175; Illinois v. Gates, 462 

U.S. 213; 103 S. Ct. 2317; 76 L. Ed. 2d 527; (1983). As the Gates court observed in citing to its 

opinion in United States v. Cortez, 449 U.S. 411, 418 (1981), its observation regarding the 

standard for "particularized suspicion," is also applicable to the probable-cause standard:

"The process does not deal with hard certainties, but with probabilities. Long before the 

law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the 

same -- and so are law enforcement officers. Finally, the evidence thus collected must be 

seen and weighed not in terms of library analysis by scholars, but as understood by those 

versed in the field of law enforcement."

In Gates, the court indicated that the trustworthiness of hearsay for purposes of proving 

probable cause can be established in a number of ways, including where (1) the informant has 

given correct information in the past; (2) independent police investigation corroborates the 

informant's statements; (3) some basis for the informant's knowledge is shown; or (4) the 

informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. 

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462 U.S. at 227. "Depending on the facts, other considerations may come into play in 

establishing the reliability of the informant or the hearsay." Id.

Similarly, under Indiana law, probable cause means a probability of criminal activity, not 

a prima facie showing. Seltzer v. State, 489 N.E.2d 939, 941 (Ind. 1986). Under Indiana’s 

criminal procedure statute, a warrant for an arrest filed with a judge must be supported by an 

affidavit setting forth the facts then in knowledge of the affiant or from information based upon 

hearsay constituting probable cause. See I.C. 35-33-5-2 (a). When based on hearsay, a probable 

cause affidavit must either: (1) contain reliable information establishing the credibility of the 

source and of each of the declarants of the hearsay and establishing that there is a factual basis 

for the information furnished; or (2) contain information that establishes that the totality of the 

circumstances corroborates the hearsay. I.C. 35-33-5-2 (b) Fry v. State, 25 N.E. 3d 237 (Ind. 

App. 2015)(when relying upon known witnesses as opposed to confidential informants, a court 

may properly rely upon hearsay to support an arrest warrant where totality of the circumstances 

corroborates the hearsay.) The hearsay must exhibit some hallmarks of reliability.

Chapman had been used by the prosecutor in prior cases involving fingerprint 

examinations and had the reputation of someone who could examine latent fingerprints and that 

is why he was asked to review the prints in the Sailor murder case. The information gathered by 

the Homicide Unit certainly corroborated Chapman’s opinion that Canen was at the scene of 

Sailor’s murder and was involved with Royer. Daggy’s probable cause was not an endorsement 

of Chapman nor is it evidence that Daggy had any knowledge of Chapman’s lack of 

qualifications as a latent print examiner.

D. Daggy did not know Chapman’s qualifications and therefore could not 

disclose them. 

Daggy did not know Chapman’s lack of qualifications to give an opinion on the latent 

print and what he did not know about Chapman, he could not disclose. Still, it must be noted 

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that Canen’s allegation that she would not have been arrested for Sailor’s murder had 

Chapman’s lack of qualifications in fingerprint identification been disclosed is simply not 

supported by the following facts known to the officers as a result of their investigation:

• Several months before Sailor’s murder, residents of eight apartments in the

Waterfall Highrise told police they were burglarized by someone using a key.

• Waterfall Highrise Maintenance man Charlie Pratcher told police that he Canen 

stayed over at his apartment one night and the master key to the apartments was 

missing the next day.

• The officers investigating Sailor’s murder noticed that the apartment door was not 

forced open and the door could only be locked from the outside by someone with 

a key.

• Canen refused to answer her apartment door when the police were knocking and 

when questioned she told the detectives that she was out of town the night of 

Sailor’s murder. 

• Florence Macioce told police that she saw Canen at Waterfall Highrise on the 

night of the murder and that she was nervously walking outside the building.

• Charlie Lambert told police that he saw Canen on the night of the murder at 

Waterfall Highrise pacing back and forth in front of the building with her bags 

packed and asking for a ride to her boyfriend’s apartment.

• Lambert later told Macocie not to tell anyone that he gave Canen a ride because 

he didn’t want to be involved and he told the police that he suspected Canen of 

taking checkbooks out of apartments.

• Nina Porter heard Canen make statements that she and Andrew Royer were 

involved in the robbery and death of an older woman who wouldn’t give them 

money.

• Royer confessed in two of his three interview with the police that he and Canen 

robbed and murdered Sailor.

The evidence cited above supports probable cause for an arrest for felony murder and 

would support a conviction. When Deputy Prosecutor Becker was asked whether Chapman 

testifying that the print was not a match would have caused a different verdict, she did not agree 

and stated: 

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A. I honestly don't know what he meant, to be quite frank. And, 

you know, I should probably go back. You asked me if I thought 

the outcome would be different had he testified that it was not her 

print. I can't say that to any degree of certainty, because the 

amount of other evidence against Ms. Canen was pretty significant. 

And I think that it is possible that the jury would have felt the same 

way we did, that she was definitely part of it. So I can't sit here and 

honestly say that the jury would have had a different outcome. Do 

I think their conversations would have been different? Absolutely. 

Do I think that their assessment of the case would have been 

different? Absolutely. Can I sit here and say there would have been 

a different outcome? No, I can't.

Q. Well, in fact, you did say that, but deciding not to file -- refile 

the charges. Isn't that correct?

A. Yes. But that doesn't say that there would have been a different 

outcome. It says that we as a prosecutor's office do not feel that it 

is appropriate use of resources to attempt to retry Ms. Canen for 

this case given what has occurred.

II. Canen cannot show a Brady violation against Daggy.

Canen alleges that Daggy violated Brady v. Maryland, 373 U.S. 83 (1963) and to succeed 

on such a claim she must prove three elements: (1) that the evidence at issue was favorable to

her, either because it is exculpatory or because it is impeaching; (2) the evidence must have been 

suppressed by the state, either willfully or inadvertently; and (3) the evidence must have been 

material, meaning there is a reasonable probability that the result of the proceeding would have 

been different. Beaman v. Freesmeyer, 776 F.3d 500 (7th Cir. 2015) This last element is often 

referred to as "prejudice." Carvajal v. Dominguez, 542 F. 3d 561, 566. (7th Cir. 2008) "The 

reasonable probability standard for materiality of suppressed evidence is less rigorous than a 

preponderance of the evidence standard in that a petitioner need only show that the new evidence 

undermines confidence in the verdict." Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010)

(citing Kyles v. Whitley, 514 U.S. 419 (1995). Canen has not satisfied the second and third 

elements of the Brady test. 

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Regarding the second element, there are no facts to support the claim that Daggy 

willingly or inadvertently suppressed Chapman’s qualifications. Daggy didn’t know Chapman’s 

qualifications because he didn’t work with him. He could not disclose what he didn’t know. 

In addition, it is not reasonably probable that the outcome of Canen’s trial would have 

been different had Chapman testified there was no match. Deputy Prosecuting Attorney Becker, 

who was well aware of all the evidence presented to the jury in Canen’s case, testified at her 

deposition that she could not say that the jury would have decided differently had Chapman not 

testified. Becker dep. at 46. The testimony of Macocie and Lambert placed Canen at Waterfall 

and Detective Thayer testified that Canen earlier denied being there. Porter’s testimony that 

Canen told her that Royer and her went to get money from an old lady and although no one was 

supposed to get hurt but that she said “Thanksgiving, thanks for giving death” when considered 

in light of Det. Conway’s testimony that Royer confessed to killing Sailor in her apartment over 

a demand for money was sufficient evidence to convict Canen of participation in the robbery 

resulting in Sailor’s death. As such, Canen cannot show that she has met the third element to 

prove a claim under Brady.

III. Daggy is entitled to Qualified Immunity for a claim that he had a duty to 

investigate Chapman’s qualifications.

Daggy is entitled to qualified immunity for conduct that does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have known. 

Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012); Steidl v. Fermon, 494 F.3d 623, 

628 (7th Cir. 2007). Two questions must be answered when determining whether an official is 

entitled to qualified immunity: first, whether the plaintiff has alleged a deprivation of a 

constitutional right at all, and second, whether the right at issue was clearly established at the 

time and under the circumstances presented. Id.

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Willful or inadvertent non-disclosure of known exculpatory evidence is certainly a 

depravation of a constitutional right so the first question is answered. Beaman, 776 F.3d 508. 

However, the right at issue as alleged by Canen against Daggy in this case, is not clearly 

established. Daggy did not know that exculpatory evidence exists and there is no clearly 

established right granted to a defendant to have an officer initiate inquiries to discover the State’s

approved expert’s qualifications. Not inquiring about the evidence it is not the same as 

“withholding” evidence as contemplated under Brady. More to the point in this case, Daggy did 

not know and had no reason to suspect Chapman’s qualifications because he did not work as 

forensic analyst and his duties in the investigation did not bring him into contact with Chapman. 

Daggy is therefore entitled to qualified immunity from Canen’s claims. 

IV. Daggy is entitled to an award of fees. 

Canen has filed her suit against Daggy without facts to support her allegations. There is 

evidence from her testimony that the reason she filed the suit is because she was mad at him for 

investigating her for the Waterfall burglaries. Should the court grant summary judgment, Daggy 

requests an award of fees incurred for his defense. Section 1988 provides for the award of 

attorneys' fees to the prevailing party in a §1983 action. 42 U.S.C. § 1988(b). Although the 

statute specifies the award of such fees is within the court's discretion, it is clear that prevailing 

defendants have a much harder row to hoe than do prevailing plaintiffs. See Gonzales v. Transfer 

Techs., Inc., 301 F.3d 608, 609 (7th Cir. 2002). A prevailing defendant may be entitled to fees 

only in cases in which the plaintiff's action was frivolous, unreasonable, or groundless. Cf. 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 98 S. Ct. 694 

(1978); see also Hughes v. Rowe, 449 U.S. 5, 14-15, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980)

(extending Christianburg's Title VII fee-shifting standard in the § 1983 context); Khan v.

Gallitano, 180 F.3d 829, 837 (7th Cir. 1999); Hamer v. County of Lake, 819 F.2d 1362, 1367 

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(7th Cir. 1987). We have defined a suit as frivolous "if it has no reasonable basis, whether in fact 

or in law." Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir. 1985). As shown by the 

evidence stated above, Canen has no basis in fact to file suit against Daggy and he has met the 

standard to award him fees. 

Conclusion

For the above stated reasons, Daggy respectfully requests the Court grant his motion for 

summary judgment as to all claims, and award him fees for the defense of this frivolous suit.

NEWBY, LEWIS, KAMINSKI & JONES, LLP

By: /s/Martin W. Kus 

Martin W. Kus, Attorney ID No. 5377-46

Attorney for Defendant, Mark Daggy

916 Lincolnway, P.O. Box 1816

La Porte, IN 46352-1816

(219) 362-1577

mwkus@nlkj.com

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LANA CANEN, )

)

Plaintiff, )

)

v. ) Case Number: 3:14-CV-00315

)

DENNIS CHAPMAN, in his Individual )

capacity as Deputy for the Elkhart County )

Sheriff Department, and MARK DAGGY, )

in his individual capacity as Officer for )

the Elkhart Police Department, ) 

)

Defendants. )

______________________________________________________________________________

PROOF OF SERVICE

______________________________________________________________________________

I hereby certify that on the 14th day of July, 2015, I electronically filed a complete copy 

of Defendant, Mark Daggy’s Memorandum in Support of Motion for Summary Judgment and 

this Proof of Service with the Clerk of the Court using the CM/ECT system to the following:

Michael F. DeBoni: mdeboni@yaub.com

Michael K. Sutherlin: msutherlin@gmail.com

Nathaniel M. Jordan: njordan@yaub.com

Samuel M. Adams: msutherlin@gmail.com

Cara Schafer Wieneke: cara@wienekelaw.com

NEWBY, LEWIS, KAMINSKI AND JONES, LLP

By: /s/ Martin W. Kus 

Martin W. Kus, # 5377-46

USDC IN/ND case 3:14-cv-00315-RL document 36 filed 07/14/15 page 26 of 26