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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION AT LAFAYETTE 

RUSSELL HOAKS, 

 Plaintiff, 

vs. 

BENTON COUNTY SHERIFF’S 

DEPARTMENT, and DONALD 

MUNSON, in his individual 

capacity, 

 Defendants. 

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NO. 4:15-CV-18 

OPINION AND ORDER

 This matter is before the Court on Defendants’ Motion to for 

Partial Reconsideration and Summary Judgment, filed on February 

26, 2018. (DE #41.) For the reasons set forth below, the motion 

is DENIED.

BACKGROUND 

 On March 5, 2015, Plaintiff Russell Hoaks (“Hoaks”) filed a 

complaint against the Benton County Sheriff’s Department 

(“Sheriff’s Department”) and Sheriff Donald Munson (“Sheriff 

Munson” or “Munson”) in his individual capacity (together, 

“Defendants”). Munson was a correctional officer with the 

Sheriff’s Department. In 2014, both Munson and Hoaks ran for 
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sheriff on the Republican ticket in the primary election. Hoaks 

lost to Munson. Munson went on to win the general election in 

November and, on his first day in office, he terminated Hoaks. 

Hoaks filed this 42 U.S.C. § 1983 action alleging that he was 

terminated in violation of the First Amendment. 

 On January 30, 2018, the Court entered a lengthy order 

granting in part and denying in part Defendants’ motion for summary 

judgment. (DE #38.) The Court dismissed the claims against 

Munson based on qualified immunity. The Section 1983 claim 

against the Sheriff’s Department remains pending. The Sheriff’s 

Department filed the instant motion for reconsideration of the 

Court’s decision to deny summary judgment on this claim. The 

motion has been fully briefed and is ripe for review. 

DISCUSSION 

The Sheriff’s Department asks the Court to reconsider its 

order denying summary judgment on the Section 1983 claim based on 

Rule 60(a) and Rule (b)(1) of the Federal Rules of Civil Procedure. 

Rule 60(a) provides that “[t]he court may correct a clerical 

mistake or a mistake arising from oversight or omission whenever 

one is found in a judgment, order, or other part of the record.” 

Fed. R. Civ. P. 60(a). “[A] motion under Rule 60(a) can only be 

used to make the judgment or record speak the truth and cannot be 

used to make it say something other than what originally was 
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pronounced.” Carr v. Tillery, No. 07-314-DRH, 2010 WL 2132195, 

at *3 (S.D. Ill. May 17, 2010) (quoting 11 Charles A. Wright, 

Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2854 (3d 

ed. 1998 & Supp. 2009) (collecting cases)); see Brandon v. Chicago 

Bd. of Educ., 143 F.3d 293, 295 n.2 (7th Cir. 1998) (“[T]he 

dismissal . . . accurately reflected the court's intention at the 

time it was entered. Thus, the error, to the extent there was 

one, was not in the transcription, but in the court's decision, a 

ground for relief not contained in Rule 60(a).”). While the 

Sheriff’s Department asserts that the Court’s January 30 order 

contains an error of “oversight,” the order accurately reflects 

the intentions of the Court at the time it was entered. As such, 

relief under Rule 60(a) is unavailable. 

Rule 60(b)(1) provides that the court may relieve a party 

from an order based on “mistake.” Fed. R. Civ. P. 60(b)(1). Rule 

60(b) “was designed to address mistakes attributable to special 

circumstances and not merely to erroneous applications of law.” 

Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 

(7th Cir. 1995) (citation omitted). “Rule 60(b) relief is an 

extraordinary remedy and is granted only in exceptional 

circumstances.” Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th 

Cir. 2010) (citation omitted). 
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 The Sheriff’s Department asks the Court to reconsider its 

decision not to dismiss Hoaks’ Section 1983 claim against the 

Sheriff’s Department, which is based on Monell v. Department of 

Social Services of the City of New York, 436 U.S. 658, 694, 98 S. 

Ct. 2018, 56 L. Ed. 2d 611 (1978). To recover under Monell, a 

plaintiff must establish that (1) he suffered a deprivation of a 

federal right; (2) as a result of an express municipal policy, a 

widespread custom, or a deliberate act of a decision-maker with 

final policymaking authority for the municipality; which (3) was 

the proximate cause of his injury. King v. Kramer, 763 F.3d 635, 

649 (7th Cir. 2014). Defendants’ original brief in support of 

their motion for summary judgment argued that Hoaks could not 

prevail on a Monell claim against the Sheriff’s Department based 

on a policy, practice, or custom. It also made a four-sentence 

argument - without citation to any legal authority - that Hoaks’ 

Complaint failed to allege a claim based on policymaker liability. 

(See DE #32 at 20.)1

 

1 Defendants’ original brief made the following policymaker argument: 

Plaintiff has made no allegations in his Complaint to suggest that 

he has based his claim against Benton County Sheriff’s Department 

on policymaker liability. In addition to the allegation above the 

only other seemingly relevant allegation in Plaintiff’s Complaint 

dealing with potential Monell issues is “Munson is an elected 

official and employed by Benton County as Sheriff. Munson performs 

administrative and ministerial duties on behalf of Benton County.” 

[DE #1 at ¶4]. This allegation does not demonstrate a Monell claim 

against the Benton County Sheriff’s Department for the actions of 

a policymaker. In fact, Plaintiff does not allege for purposes of 

a Monell claim that Munson is, in fact, a policymaker with respect 

to employment decisions. (DE #32 at 20.) 
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In response, Hoaks argued that Sheriff Munson was a decisionmaker with final policymaking authority. As explained in the 

January 30 order, “[t]he determination of whether a person has 

policymaking authority is a question of state law, and is to be 

decided by the court.” (DE #38 at 29 (quoting Valentino v. Vill. 

of S. Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009) (citations 

omitted)). “Officials with final decisionmaking authority are 

deemed policymakers for Monell purposes, and we need to look to 

state law to determine the scope of such authority.” Id. at 676 

(citations omitted). The Indiana Court of Appeals has found that 

a sheriff is “a final policymaker.” Trout v. Bouie, 653 N.E.2d 

1002, 1007 (Ind. Ct. App. 1995). The Court noted that, in their 

reply brief, Defendants asserted that Hoaks’ Complaint did not 

allege a Monell claim based on policymaker liability, without any 

further argument or explanation regarding this statement.2 (DE 

#38 at 30 n.1.) The Court also noted that Defendants did not deny 

that Sheriff Munson was a final decisionmaker. (Id. at 29-30.) 

Considering the facts in the light most favorable to Hoaks as the 

nonmoving party, the Court determined that a genuine issue of 

 

2 Defendants’ reply brief made the following policymaker argument: 

Further, although Plaintiff proceeds to argue his Monell claim from 

a policymaker perspective, it is clear that his Complaint did not 

allege a Monell claim based on policymaker liability. Even if this 

court would entertain such a belated claim, Sheriff Munson’s actions 

did not violate the First Amendment, so there is no Monell liability 

for Hoaks’ termination. 

(DE #37 at 78.)
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material fact existed as to whether Sheriff Munson violated the 

First Amendment when he terminated Hoaks. (Id. at 30.) Because 

Defendants failed to proffer any authority supporting their 

policymaker arguments, and did not refute Hoaks’ assertion that 

Sheriff Munson was a final decisionmaker, the Court denied 

Defendants’ motion for summary judgment on the Monell claim. 

According to the Sheriff’s Department, the Court found that 

Defendants waived their argument that Hoaks’ Complaint did not 

allege a Monell claim based on policymaker liability because it 

mistakenly determined that Defendants only raised this argument in 

their reply brief. While the January 30 order only references 

Defendants’ reply brief, this argument in both their original and 

reply briefs was perfunctory and undeveloped. “Perfunctory, 

undeveloped arguments without discussion or citation to pertinent 

legal authority are waived.” (Id. at 30 n.1 (quoting Mahaffey v. 

Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009)). Defendants failed 

to cite any legal authority to support their policymaker argument 

in either their original or reply briefs. “[I]t is not the 

obligation of this court to research and construct legal arguments 

open to parties, especially when they are represented by counsel, 

and we have warned that perfunctory and undeveloped arguments, and 

arguments that are unsupported by pertinent authority, are 
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waived.” Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) 

(citation and internal quotation marks omitted). 

In its motion for reconsideration, the Sheriff’s Department 

develops the argument that the Complaint failed to allege 

policymaker liability under Monell. It cites Valentino v. Village 

of South Chicago Heights, 575 F.3d 664 (7th Cir. 2009), as setting 

forth an outline of the facts that must be established to prove a 

policymaker liability. Valentino provides that “the mere 

unreviewed discretion to make hiring and firing decisions does not 

amount to policymaking authority. There must be a delegation of 

authority to set policy for hiring and firing, not a delegation of 

only the final authority to hire and fire.” Id. at 676 (citations 

omitted). While the Sheriff’s Department now proffers case law 

to support its argument, Rule 60(b) is “not an appropriate vehicle 

for addressing simple legal error, for rehashing old arguments, or 

for presenting arguments that should have been raised before the 

court made its decision.” Amawi v. Walton, No. 13-CV-866-JPG-RJD, 

2017 WL 6540913, at *1 (S.D. Ill. Dec. 21, 2017) (collecting 

cases).3

 

3 The Sheriff’s Department also contends that Defendants did not address Hoaks’ 

argument that Sheriff Munson was a policymaker in their summary judgment 

briefing because the claim was not properly pled. It maintains that Hoaks 

failed to seek evidence that Munson was a policymaker for purposes of firing in 

discovery and attempts to distinguish Trout, 653 N.E.2d 1002, in which the 

Indiana Court of Appeals found that a sheriff is a final policymaker. To the 

extent that the Sheriff’s Department is attempting to argue that Munson is not 

a policymaker for the purposes of the Monell claim, a motion for reconsideration 

is not an opportunity to raise new arguments which could have been raised 
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Moreover, the Court is not persuaded by the Sheriff 

Department’s argument. A Section 1983 “municipal liability claim 

need not meet any heightened pleading standard, but rather must 

simply set forth sufficient allegations to place the court and 

defendants on notice of the gravamen of the complaint.” Latuszkin 

v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001) (citation 

omitted); see White v. City of Chicago, 829 F.3d 837, 839 (7th 

Cir. 2016) (“federal courts may not apply a ‘heightened pleading 

standard’—more stringent than the usual pleading requirements of 

[Rule 8(a)]—in civil rights cases alleging municipal liability” 

under § 1983). Whether a complaint provides notice is determined 

by looking at the complaint as a whole. See Atkins v. City of 

Chi., 631 F.3d 823, 832 (7th Cir. 2011) (the court is to read the 

complaint and assess its plausibility as a whole). 

In Kristofek v. Village of Orland Hills, 712 F.3d 979 (7th 

Cir. 2013), a former police officer brought a First Amendment 

retaliation claim under Section 1983 against the village and its 

police chief after the police chief fired him. Id. at 981. The 

trial court dismissed the officer’s retaliation claim. On appeal, 

the Seventh Circuit reversed the trial court’s decision and 

 

previously. See Bloch v. Frischholz, 587 F.3d 771, 784 n.9 (7th Cir. 2009) 

(“[D]eveloping an argument for the first time in a motion to reconsider is too 

late.”). Because Defendants did not make this argument in their summary 

judgment briefing, it has been waived. See id. (“[A]ny arguments . . . raised 

for the first time in [a] motion to reconsider are waived.”).
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addressed whether the officer had stated a Monell claim based on 

the policymaker theory of liability. The court cited Valentino

(the case on which the Sheriff’s Department relies) for the 

proposition that “the mere unreviewed discretion to make hiring 

and firing decisions does not amount to policymaking authority. 

There must be a delegation of authority to set policy for hiring 

and firing, not a delegation of only the final authority to hire 

and fire.” Id. at 987 (quoting Valentino, 575 F.3d at 676). The 

Seventh Circuit considered the complaint and found that the officer 

had “stated, albeit barely, a plausible claim that [the police 

chief] had at least de facto authority to set policy for hiring 

and firing” because the complaint “suggest[ed] [the police chief] 

was fully in charge of the police department and that his firing 

decisions were not reviewed.” Id. at 987 (emphasis added). “The 

picture painted by the complaint . . . suggest[ed] that [the police 

chief] had the unfettered discretion to hire and fire whomever he 

pleased.” Id. (emphasis added). 

Here, the Complaint alleges: (1) “Munson is an elected 

official and employed by Benton County as Sheriff” and “performs 

administrative . . . duties on behalf of Benton County” (DE #1, 

¶4); (2) “Defendants [including Sheriff Munson], acting pursuant 

to a policy, practice, and/or custom, violated Hoaks’ rights as 

protected by the First Amendment” (Id., ¶7); (3) “Munson made it 
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known that when he took office he planned to terminate Hoaks 

employment” and “told several inmates and other members of the 

public of his intent” (Id., ¶15); and (4) “Munson terminated Hoaks’ 

employment” on his first day in office as sheriff (Id., ¶17). 

Nothing in the Complaint suggests that Sheriff Munson’s firing 

decision was reviewed. As noted above, whether a decisionmaker 

is considered a “policymaker” is determined by state law, and 

Indiana courts have found that a sheriff is “a final policymaker” 

for some purposes. Trout, 653 N.E.2d at 1007. Like the 

allegations in Kristofek, the Complaint alleges, albeit barely, a 

plausible claim that Sheriff Munson had least de facto authority 

to set policy for hiring and firing for the Sheriff’s Department. 

See Wiseman v. City of Michigan City, 966 F. Supp. 2d 790, 797–98 

(N.D. Ind. 2013) (finding plaintiff stated a plausible claim that 

superintendent “had at least de facto authority to set policy for 

hiring and firing” for the city where the complaint alleged that 

superintendent had supervisory authority over plaintiff, made 

personnel decisions, and caused or participated in plaintiff’s 

constitutional deprivation, and that plaintiff was not re-hired). 
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CONCLUSION 

For the reasons set forth above, the Defendants’ Motion for 

Partial Reconsideration and Summary Judgment (DE #41) is DENIED.

DATED: May 14, 2018 /s/ RUDY LOZANO, Judge 

 United States District Court