UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TIMOTHY J. KOMOSCAR, et al., )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:15-CV-256-JVB-JPK

)

TAMARA G. LOOMIS, et al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment [DE 113] 

filed by Defendants Brittany Schmidt and Tamara Loomis on November 19, 2018. Plaintiffs 

Timothy J. Komoscar and Kelly A. Komoscar (litigating individually and on behalf of minor 

children N.A.K., R.E.K., N.R.K., and A.J.K.) filed a response on December 14, 2018. Defendants 

filed a reply on January 7, 2019.

PROCEDURAL BACKGROUND

The Komoscars filed their initial complaint in this Court on July 9, 2015, and filed their 

amended complaint on December 14, 2015. In the amended complaint, the Komoscars alleged 

claims against Michael Pence (who was then the governor of Indiana), Mary Beth Bonaventura, 

Terrance Ciboch, Louella Richey, and the Indiana Department of Child Services, but all of those 

claims have been resolved. Only the claims against Defendants Tamara Loomis and Brittney 

Schmidt remain pending.

The Komoscars bring claims for violations of their Fourteenth Amendment due process 

rights (both procedural and substantive due process violations are alleged) and Fourth Amendment 

rights to be free from unreasonable seizure as made enforceable by 42 U.S.C. § 1983.

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SUMMARY JUDGMENT STANDARD

A motion for summary judgment must be granted “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. P. 56(c). Rule 56(c) further requires the entry of summary 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).

A party seeking summary judgment bears the initial responsibility of informing a court of 

the basis for its motion and identifying those portions of the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, which it believes 

demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving 

party supports its motion for summary judgment with affidavits or other materials, it thereby shifts 

to the non-moving party the burden of showing that an issue of material fact exists. Keri v. Bd. of 

Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).

Rule 56(e) specifies that once a properly supported motion for summary judgment is made, 

“the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth 

specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

In viewing the facts presented on a motion for summary judgment, a court must construe 

all facts in a light most favorable to the non-moving party and draw all legitimate inferences and 

resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate the 

weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, 

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but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 

477 U.S. 242, 249-50 (1986).

MATERIAL FACTS

On April 23, 2014, at school, R.K. picked at a mark on his arm, which started to bleed, so 

he went to the school nurse to get a bandage. (Defs.’ Ex. D 18:1-2, ECF No. 114-4). The nurse 

asked how he got the mark, and R.K said that his mother (Kelly Komoscar) hit him with a toilet 

paper holder. Id. at 18:5-8. The Indiana Department of Child Services received a report the same 

day regarding this incident. (Defs.’ Ex. I, ECF No. 114-9). The allegation narrative of the report 

states that R.K. went to school that day with an abrasion on his arm and that R.K. indicated that 

his mother hit him with the “metal pole from the toilet paper holder stand” on his arm, lower leg, 

and nose. Id. at 1.

Brittney Schmidt was assigned to investigate the Komoscar family based on the report. 

(Defs.’ Ex. D 25:20-25, 26:23-25, ECF No. 114-5). Schmidt interviewed R.K. and N.R.K.

separately at their school. Id. at 27:10-11; (Defs.’ Ex. J 2, ECF No. 114-10). R.K. told Schmidt 

about the toilet paper holder incident as reported to the school nurse. (Defs.’ Ex. J 2-3, ECF No. 

114-10). N.R.K. corroborated R.K.’s report regarding the toilet paper holder and also told Schmidt 

that Kelly pushed R.K.’s head into the toilet to make him eat his feces and that Kelly did not let 

him spit the feces into the garbage can. Id. at 3. N.R.K. stated that Timothy was asleep when this 

happened, but he woke up and told Kelly that she had gone too far. Id. N.R.K. also reported that 

Kelly had hit A.K. in the mouth and had held a knife above R.K.’s head and threatened to kill him. 

Id. Schmidt spoke with R.K. again, asked him if anything happened in the bathroom near the toilet, 

and told R.K. that she had spoken with N.R.K. Id. R.K. stated that his mom made him lick his 

feces and that she had made him do so a few times. Id. At his July 26, 2017, deposition, R.K. 

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testified that he was lying when he said that Kelly hit him with the toilet paper hold and made him 

eat his feces, but he also testified that he did not tell Schmidt or Loomis that he was lying. (Defs.’ 

Ex. D 47:11-48:4, ECF No. 114-4).

Schmidt determined that the children should be detained because of N.R.K.’s and R.K.’s 

statements that Kelly made R.K. eat his feces and because N.R.K. stated that Timothy became 

aware of what happened. (Defs.’ Ex. E 37:6-38:6, ECF No. 114-5).

On Friday, April 25, 2014, the Porter County, Indiana, Juvenile Court issued an Order for 

Emergency Detention, which ordered the children to be immediately detained. (Defs.’ Ex. S, ECF 

No. 115-4). A post-removal initial hearing was held on Monday, April 28, 2014. (Defs.’ Ex. A 

57:1-5, ECF No. 114-1; Defs.’ Ex. T, ECF No. 115-5; Pls.’ Ex. G, ECF No. 123-1). The Juvenile 

Court found:

The removal of the children was authorized under Indiana Code 31-34-2 or 2.5, and 

necessary to protect the children. It is in the best interest of the children to be 

removed from the home environment and remaining in the home would be contrary 

to the health and welfare of the children based on the finding of probable cause, the 

allegations in the Petition, and the Report of Preliminary Inquiry.

(Ex. T, ECF No. 115-5). The Court further found that “[t]he children should continue to be detained 

because detention is necessary to protect the children.” Id.; accord (Pls.’ Ex. G, 76:21-77:11, ECF 

No. 123-1 (hearing transcript)). Loomis was assigned to the Komoscar case as the ongoing case 

manager. (Defs.’ Ex. A 116:24-117:2).

At an April 29, 2014, forensic interview, R.K. stated that Kelly put R.K.’s head on the toilet 

seat, made him lick the toilet seat, and made him lick feces. (Defs.’ Ex. DD, 23:25-27:45, ECF 

No. 116). At a separate forensic interview on the same day, N.R.K. stated that Kelly asked R.K. if 

he wanted to eat the feces, that Kelly stated that once in R.K.’s life he was going to eat feces and 

get sick, and that Kelly was trying to keep R.K. from getting sick. Id. at 1:04:30-1:05:12. N.R.K. 

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further stated that she had told Schmidt that Kelly made Rex eat feces but N.R.K. did not mean to 

say it. Id. at 1:20:00-1:22:25.

On May 22, 2014, Dr. Joel B. Schwartz saw R.K. and N.R.K. for the purpose of conducting 

hearsay evaluations. (Defs.’ Ex. FF, ECF No. 115-14; Defs.’ Ex. GG, ECF No. 115-15). Dr. 

Schwartz stated that he “did not get the impression that [R.K.] is an adolescent boy who would 

deliberately fabricate information,” (Defs.’ Ex. GG, 4), and that N.R.K. “does not appear to be 

prepared to be truthful,” and that “her recantation of what she reported she originally observed 

appears to be related to underlying fears of self-guilt and anxiety,” (Defs.’ Ex. FF, 4).

On R.K.’s third visit from Porter-Starke Services, R.K. told the D.C.S. behaviorist that he 

fabricated the story that Kelly hit him with the toilet paper holder. (Pls.’ Ex. A 124, 147-48, ECF 

No. 122-1). At this time, Kelly had not yet returned home. Id. at 148:21-22. According to 

Timothy’s testimony, the behaviorist emailed D.C.S. to “inform them that this was false.” Id. at 

148:18-19, 24-25.

ANALYSIS

The claims that remain pending against Defendants fall under 42 U.S.C. § 1983, which 

provides:

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen of the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured . . . .

Plaintiffs allege unreasonable seizure, violations of substantive and procedural due process, 

malicious prosecution, violation of medical privacy, and violation of right to treatment.

A. Rooker-Feldman Doctrine

Plaintiffs argue that Defendant Loomis “refused to disclose to Dr. Schwartz that R.E.K. 

was even in therapy, let alone that he never said anything about his allegations against Kelly 

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before” and that she inappropriately kept the case pending for two months after R.E.K. stated that 

he was lying. (Resp. 22, ECF No. 124). “[A]t minimum [due process] requires that government 

officials not misrepresent the facts in order to obtain the removal of a child from his parents.” 

Brokaw v. Mercer Cty., 235 F.3d 1000, 1020 (7th Cir. 2000) (citing Malik v. Arapahoe Cty. Dept. 

of Social Serv., 191 F.3d 1306, 1315 (10th Cir. 1999)).

The Rooker-Feldman doctrine prevents this Court from reviewing state court decisions that 

allegedly injured a plaintiff. See Coley v. Abell, 682 F. App’x 476, 478 (7th Cir. 2017). The Seventh 

Circuit Court of Appeals has held that the Rooker-Feldman doctrine covers allegations that 

misstatements or lies made to the state court led to an adverse state court judgment. Brokaw, 235 

F.3d at 1020 (citing Harold v. Steel, 773 F.3d 884, 886-87 (7th Cir. 2014); Kelley v. Med-1 Sols., 

LLC, 548 F.3d 600, 605 (7th Cir. 2008)).

Assuming, without deciding, that these allegations regarding Loomis’s refusal to disclose 

rise to the level of misrepresentation of facts, claims based on these allegations are barred by the 

Rooker-Feldman doctrine and are dismissed for lack of federal jurisdiction.

B. Issue Preclusion

Defendants assert that all of Plaintiffs’ remaining claims are barred by issue preclusion.

Specifically, Defendants assert that the juvenile court’s finding of probable cause prevents the 

Court from reaching the merits of Plaintiffs’ claims. The Full Faith and Credit Statute mandates 

that this Court give judgments of Indiana courts the preclusive effect they would have in Indiana’s 

state judicial system. 28 U.S.C. § 1738; Mains v. Citibank, N.A., 852 F.3d 669, 675 (7th Cir. 2017).

In Indiana, issue preclusion generally “bars subsequent litigation of the same fact or issue 

that was necessarily adjudicated in a former suit” and follows federal precedent. Miller Brewing 

Co. v. Ind. Dept. of State Revenue, 903 N.E.2d 64, 68 (Ind. 2009). In deciding whether to apply 

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issue preclusion, Indiana courts ask two questions: (1) did the party in the prior suit have a full and 

fair opportunity to litigate the issue? and (2) given the facts of the particular case, is it otherwise 

unfair to apply issue preclusion? Mains, 852 F.3d at 676 (citing Indianapolis Downs, LLC v. Herr, 

834 N.E.2d 699, 705 (Ind. Ct. App. 2005)). “The non-exhaustive factors to be considered by the 

trial court in deciding whether to apply issue preclusion include: (1) privity, (2) the [party against 

whom issue preclusion is sought to be applied]’s incentive to litigate the prior action, and (3) the 

ability of the [party seeking to have issue preclusion applied] to have joined the prior action.” 

Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013) (citing Indianapolis 

Downs, LLC, 834 N.E.2d at 704-05).

Plaintiffs argue that issue preclusion does not apply because Defendants were not parties 

to the juvenile court proceeding. They cite Indiana cases for the proposition that an issue already 

adjudicated in a suit with the same parties leads to issue preclusion, but they ignore the more recent 

Angelopoulos and Indianapolis Downs decisions that indicate that privity of the parties is a factor 

and not a requirement.

Plaintiffs do not argue that probable cause was not actually decided in the state court 

proceeding. Indeed, the Porter County, Indiana, Juvenile Court found:

The removal of the children was authorized under Indiana Code 31-34-2 or 2.5, and 

necessary to protect the children. It is in the best interest of the children to be 

removed from the home environment and remaining in the home would be contrary 

to the health and welfare of the children based on the finding of probable cause, the 

allegations in the Petition, and the Report of Preliminary Inquiry.

(Ex. T, ECF No. 115-5). The Court further found that “[t]he children should continue to be detained 

because detention is necessary to protect the children.” Id. It is for the Court to determine whether 

issue preclusion should be applied to this finding of probable cause.

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1. Full and Fair Opportunity to Litigate

The Porter County, Indiana, Juvenile Court order issued after the detention hearing reports 

as follows

The Court advises the parents of the material allegations of the petition, the rights 

of the parents and children, the right to be represented by counsel, the dispositional 

alternatives available to the Court if the [c]hildren are adjudicated to be in need of 

services, the potential for parental participation, consequences for failure to 

comply, and financial responsibility.

(Ex. T, ECF No. 115-5). The Komoscar parents had notice of the detention hearing and were 

represented by counsel. They had the opportunity to testify and to call witness. Timothy Komoscar 

chose to testify. Dr. Hobart testified on behalf of the Komoscars. Plaintiffs identify nothing that 

prevented their ability to fully and fairly litigate the juvenile court proceeding. The Court finds 

that Plaintiffs had a full and fair opportunity to litigate the question of probable cause.

2. Fairness Considerations

As addressed above, Plaintiffs assert that Defendants’ absence as parties in the juvenile 

proceeding is material to the issue preclusion question, but the Court is unconvinced. Defendant 

Schmidt was present and testified at the juvenile proceeding. Both Defendants were employed by 

the Indiana Department of Child Services, which was represented at the hearing. Nothing about 

this situation makes use of issue preclusion unfair.

The Court also finds that Plaintiffs had extremely high incentives to litigate the issue at the 

hearing. At stake was whether the children would remain with the parents, and the instant litigation 

is powerful proof of the parents’ desire to retain custody of their children and the high value they 

place on their parental relationship with their children.

Defendants did not have the opportunity to join the prior action, though as mentioned 

above, Defendant Schmidt was a witness in that action. The juvenile proceeding is not a civil action 

that would have permitted the addition of parties such as Defendants.

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Plaintiffs have not suggested that the Court should consider other factors in determining 

whether issue preclusion should apply here. The Court, in considering all of the circumstances of 

the earlier proceeding and the case at bar, finds that it is fair to apply issue preclusion here. Thus, 

it is determined by issue preclusion that probable cause existed for the removal of the Komoscar 

children on April 24, 2014.

C. Effect of Issue Preclusion on Claims

Certain of Plaintiffs’ remaining claims do not survive the application of issue preclusion.

First, there is no Fourth Amendment violation when a seizure occurs without a court order but is

supported by probable cause. Brokaw, 235 F.3d at 1010. Because probable cause is established by 

issue preclusion, there is no Fourth Amendment violation for the Komoscars’ seizure before the 

court order was issued.

Parents’ interest in the care and custody of their children is subject to the protection of the 

Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). Forced separation of 

family members implicates this substantive due process right. Brokaw, 235 F.3d at 1018. Thus, 

the Komoscar parents’ substantive due process claim is properly analyzed under the Fourteenth 

Amendment based on a fundamental right to familial relations. Xiong v. Wagner, 700 F.3d 282,

291 (7th Cir. 2012); Hernandez, 657 F.3d at 480. The state’s interest in protecting children from 

abuse outweighs an individual’s liberty interest in familial integrity where the state has “definite 

and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in 

imminent danger of abuse.” Brokaw, 235 F.3d at 1019.

A reasonable suspicion is less than probable cause. United States v. Ruiz, 785 F.3d 1134, 

1141 (7th Cir. 2015). Here, the state court finding of probable cause regarding the Komoscar 

children necessarily includes a finding of the lower threshold of a reasonable suspicion, so issue 

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preclusion applies here as well. Defendants are entitled to summary judgment on this argument 

regarding the initial removal’s restriction on the liberty interest in familial integrity.

Lastly, by Plaintiffs’ own admission, malicious prosecution requires a lack of probable 

cause. (Resp. 23, ECF No. 124 (quoting Hammond Lead Prods., Inc. v. Amer. Cyaniamid Co., 570 

F.2d 668, 673 (7th Cir. 1977))). Because probable cause has been established by issue preclusion, 

Plaintiffs cannot prevail on this claim and Defendants are entitled to summary judgment on it.

D. Continued Separation of the Komoscar Family

The Komoscars maintain that the separation of children from parents continued after 

Defendants ceased to have a reasonable suspicion that the children had been abused or were in 

imminent danger of abuse. “This ‘reasonable suspicion’ standard is an objective one.” Sebesta v. 

Davis, 878 F.3d 226, 233 (7th Cir. 2017) (citing Terry v. Richardson, 346 F.3d 781, 787 (7th Cir. 

2003)). This argument is directed toward Defendant Loomis only. See (Resp. at 24, ECF No. 124). 

Before reaching the question of reasonable suspicion, however, the Court must first 

consider whether Loomis is entitled to qualified immunity. The Komoscars bear the burden of 

showing that Loomis is not immune, which they can do if they demonstrate “(1) the defendant 

violated a constitutional right; and (2) the right was clearly established at the time, so that a 

reasonable state actor would know her conduct was unlawful.” Sebesta, 878 F.3d at 233 (citing 

Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017)). For a right to be clearly established in the 

law, the right must be particularized to the facts of the case and cannot be defined at a high level 

of generality. White v. Pauly, 137 S.Ct. 548, 551-52 (2017).

Here, the Komoscars argue that the law clearly shows that continued detention after 

“probable cause” dissipates violates the rights of those detained, citing Hernandez. Hernandez

does support this broad, generalized statement of the law and clarifies that if Defendants “obtained 

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additional information that eroded any reasonable basis for believing that [the children were] 

abused or [were] in imminent danger of abuse, keeping [them] in protective custody became 

unreasonable.” Hernandez, 657 F.3d at 479.

Plaintiffs assert that R.K. disclosed to D.C.S.’s behaviorist that R.K. had fabricated the 

story that Kelly hit him with a toilet paper holder. Plaintiffs state in their response that this occurred 

on May 5, 2014, but the cited evidence reveals that the referral to Porter-Starke Services occurred 

on May 5 and that it was at the third visit from Porter-Starke Services that the behaviorist met with 

the Komoscars. (Pls.’ Ex. A 124, 147-48, ECF No. 122-1). However, the evidence does indicate 

that Kelly had not yet returned to the home. Id. at 148:21-22. Timothy testified that the behaviorist 

advised that she emailed D.C.S. to “inform them that this was false,” that is, presumably, that the 

alleged incident regarding the toilet paper holder and ingestion of feces did not occur. Id. at 

148:18-19, 24-25.

In the context of this case, to defeat a qualified immunity defense, Plaintiffs must show 

that it was clearly established that the interference with their familial integrity rights was 

unconstitutional (that is, that Loomis no longer had a reasonable suspicion sufficient to interfere 

with those rights) after Loomis was informed by a behaviorist that the behaviorist did not believe 

that the original allegations were true after R.K. disclosed that he had fabricated the story. Plaintiffs 

identify no source of law to support a theory that, between conflicting accounts given by one 

believed to be a victim, a caseworker must believe the more recent account or the account denying 

victimhood. Plaintiffs identify no source of law to support a theory that behaviorists’ opinions 

outweigh those of caseworkers.1 Plaintiffs present their argument only at a high level of generality, 

and the argument fails. It was not clearly established that the change in R.K.’s account of the events 

1 At the July 15, 2014 Fact Finding Hearing, Loomis testified that she believed R.K.’s and N.A.K.’s initial account of 

what happened in the bathroom. (Defs.’ Ex. BB 15:8-13, ECF No. 115-13).

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and the opinion of the behaviorist meant that there was no longer a reasonable suspicion to 

constitutionally justify the Komoscar family separation. Loomis is entitled to qualified immunity 

on this argument.

Similarly, because it was not clearly established that there was no reasonable suspicion, 

obtaining the consent to a safety plan as a condition of reunification with the children was a “lawful 

threat” and not impermissible “coercion.” See Dupuy v. Samuels, 465 F.3d 757, 762 (7th Cir. 

2006).

E. Other Matters

Regarding procedural due process, Indiana law provides that a postremoval hearing shall 

occur within forty-eight hours (weekends and legal holidays excluded) of a child being taken into 

custody. Ind. Code 31-34-5-1. The initial removal occurred on a Friday, which was followed by a 

probable cause hearing on the following Monday. The Komoscars received a prompt postremoval 

probable cause hearing, so they received due process. See Coley, 682 F. App’x at 478 (citing Ind. 

Code § 31-34-5-1(a); Jensen v. Foley, 295 F.3d 745, 747 (7th Cir. 2002)) (holding that a 

postremoval probable cause hearing satisfies procedural due process when the hearing is held 

within the timeframe required by statute).

Plaintiffs make no argument and present no evidence to support their right to treatment and 

information privacy claims. Because Plaintiffs would bear the burden of proof of these claims at 

trial, summary judgment in favor of Defendants on these matters is warranted.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS Defendants’ Motion for Summary 

Judgment [DE 113]. The claims of deprivations of constitutional rights through misrepresentations 

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made to the state court are DISMISSED without prejudice for lack of federal jurisdiction. On 

the remaining claims, the Court GRANTS summary judgment in favor of Defendants.

SO ORDERED on June 10, 2021.

s/ Joseph S. Van Bokkelen

JOSEPH S. VAN BOKKELEN, JUDGE

UNITED STATES DISTRICT COURT

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