IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

EDDIE J. ARRINGTON, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:16-CV-148

)

CITY OF FORT WAYNE, et al. )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on: (1) Defendant Lunz

Excavating, Inc.’s Motion for Summary Judgment (DE #50); (2)

Defendant’s Motion for Summary Judgment, filed by Kelley Towing (DE

#52); and (3) Defendants, City of Fort Wayne and John Caywood’s

Motion for Summary Judgment (DE #56), all filed on February 23,

2017. For the reasons set forth below, the motions are GRANTED. 

Arrington’s federal claims are DISMISSED WITH PREJUDICE and this

case is REMANDED to Allen Superior Court for further proceedings. 

BACKGROUND

On March 10, 2016, Eddie J. Arrington (“Arrington”) filed a

complaint against the City of Fort Wayne (“City”), Mayor Henry,

John Caywood (“Caywood”), Kelley Towing (“Kelley”), and Lunz

Excavation (“Lunz”) in the Allen Superior Court. The complaint

alleges that the Defendants discriminated against him based on his
“race and aesthetic belief,” by depriving him of property in

violation of the Fourteenth Amendment and I.C. § 35-46-4-1. More

specifically, he alleges that, on March 10, 2014, a neighborhood

code officer, together with the Fort Wayne Police Department,

entered his property and unlawfully removed his car, truck,

trailer, riding lawn mower, grill and other items. Because the

complaint asserts federal claims, it was removed to this Court. 

Defendants have each filed a motion for summary judgment

asserting that judgment must be entered in their favor as a matter

of law. Each Defendant also served Arrington with a “Notice of

Summary Judgment Motion” that explained what a summary judgment

motion is and his obligations in response to the motion. (DE ##54,

55, 59). The notice explained that factual allegations must be

supported with citations, and that the court is not required to

consider materials that are not cited. Despite these notices,

Arrington filed a single response to the instant motions that is

roughly two pages in length and devoid of any citations. (DE #66). 

He also filed a handful of exhibits, including a disk with two

video segments. (DE #67). Defendants filed a joint reply brief on

July 21, 2017, and the motion is now ripe for adjudication. 

DISCUSSION

Summary judgment must be granted when “there is no genuine

dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine

dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not

every dispute between the parties makes summary judgment

inappropriate; “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude

the entry of summary judgment.” Id. In determining whether

summary judgment is appropriate, the deciding court must construe

all facts in the light most favorable to the nonmoving party and

draw all reasonable inferences in that party’s favor. Ogden v.

Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor

toward the nonmoving party does not extend to drawing inferences

that are supported by only speculation or conjecture.” Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.

C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

A party opposing a properly supported summary judgment motion

may not rely on allegations or denials in her own pleading, but

rather must “marshal and present the court with the evidence she

contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,

621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to

establish the existence of an essential element on which he or she

bears the burden of proof at trial, summary judgment is proper. 

Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

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Facts

Each Defendant has provided a statement of undisputed material

facts with citations to supporting evidence in compliance with the

requirements of Federal Rule of Civil Procedure 56 and Northern

District of Indiana Local Rule 56-1. Accordingly, to avoid summary

judgment, Arrington must demonstrate that there is a genuine

dispute by citing material facts he contends are in dispute in a

statement of genuine disputes or showing that the materials cited

by the Defendants do not establish the absence of a genuine

dispute. Fed. R.Civ. P. 56(c). 

Although there are three separate motions for summary judgment

before the Court, the controlling facts are undisputed and

identical as to each motion. For that reason, the Court has

borrowed liberally from the response brief of the City, Mayor

Henry, and Caywood. (DE #57). Arrington’s response brief does not

contain a statement of genuine disputes, but does cite to several

exhibits in the body of his response. Although not strictly in

compliance with this Court’s rules, in light of his pro se status,

the exhibits cited by Arrington have been considered by the Court. 

These exhibits, however, do not directly contradict any of the

Defendants’ assertions. Accordingly, where Defendants have

appropriately cited to the record, the facts they present are

deemed admitted. 

The City has enacted ordinances which regulate housing and

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building standards for properties located within the City,

including an ordinance entitled “Minimum Housing and Maintenance

Standards, codified as Chapter 152 of the Fort Wayne City Code of

Ordinances.” (Caywood Aff. ¶ 4). The City has also enacted an

ordinance regulating the manner of parking of motor vehicles within

the City limits. (Id. ¶ 5). 

Section 152.04.C(6) and (7) govern exterior property areas and

provide:

(C) Exterior Property Areas.

 ****

(6) Vehicles. Except as provided for in other

regulations, no inoperable motor vehicle shall

be parked, kept or stored on any premises, and

no vehicle shall at any time be in a state of

major disassembly, disrepair, or in the

process of being stripped or dismantled. All

operable vehicles shall be parked on an

approved surface. 

(7) Prohibited outdoor storage. It shall be

unlawful and prohibited for an occupant to

cause, keep, permit or maintain a public

nuisance. Public nuisance shall include, but

not be limited to, the following:

(a) Building materials stored on any

premises, except the following: building

materials and equipment placed or stored on

premises, or for a period of no longer than 30

days prior to a commencement of building, and

no longer than ten days after the completion

of building on said premises.

(b) Any furniture, appliances or

household items not originally designed or

manufactured solely for outdoor use, including

tools, auto parts, and other similar items.

(c) Any equipment, furniture, bicycles,

or children’s toys which were originally

designed or manufactured for outdoor use and

which are now dilapidated, deteriorated or

dismantled.

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(Caywood Aff. Ex. 1 at 9).

Section 152.04.E, governs trash and debris. It provides:

(E) Trash and Debris. All exterior property

and premises, and the interior of every

structure, shall be free from any accumulation

of trash and debris.

(1) Disposal of Trash and Debris. Every

occupant of a structure shall dispose of all

refuse in a clean and sanitary manner by

placing in refuse containers.

(2) Approved Refuse Containers. The owner

of every occupied premise shall be responsible

to supply covered refuse containers for trash

sufficient to meet the needs of the occupants.

(Caywood Aff. Ex. 1 at 11).

The City’s Neighborhood Code Enforcement Department (“NCE”) is

responsible for enforcement of both the Indiana Unsafe Building Law

(I.C. § 36-7-9 et seq.) and the relevant sections of the City

Building Code. (Caywood Aff. ¶ 6). On March 10, 2014, the date of

the NCE’s entry onto Arrington’s properties to abate violations of

the City Code, Cindy Joyner was the Deputy Director of NCE. (Joyner

Aff. ¶¶ 2-3). Caywood held the position of Administrator. (Id. ¶

3; Caywood Aff. ¶ 3). His duties included the supervision of one

field supervisor and eleven (11) Code enforcement officers.

(Caywood Aff. ¶ 3). He was not a policy maker for NCE or the City.

(Id.). NCE has policies and procedures for its enforcement of the

City Code. (Id. ¶ 7; City Code Section 152.12, Enforcement of

Penalties; I.C. § 36-7-9-17). 

When NCE learns that a property may be in violation of Section

152 or 72, or the Unsafe Building Law, a Code enforcement officer

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goes to the property, inspects the property, and takes photographs

of the items that violate the City Code. (Caywood Aff. ¶ 8). The

NCE then cites the property owner. (Id.). The property owner has

a right to an administrative hearing. (Id.). If the violations

concern health and safety, NCE will give the property owner ten

days to abate the violation. (Id.). If the violations are not

abated, the NCE issues a written Order to Abate (“OTA”), giving the

property owner an additional ten days to abate the violations. 

(Id. ¶ 9). The order becomes final unless a hearing is requested

in writing by the property owner. (Id. ¶ 9; see also Section

152.12.) 

If no hearing is requested, at the end of the ten days, the

enforcement officer returns to the property to again inspect to see

if the property owner has abated the violation, in which case, no

further enforcement action is taken. (Caywood Aff. ¶ 10). If,

however, the cited violations have not been abated, the City’s NCE

may file suit in Allen Circuit or Superior Court for injunctive

relief and an order permitting NCE to enter the property and itself

abate the violations. (Id. ¶ 10). In most cases, judicial action

is unnecessary and the property owner complies at some point during

the administrative process. (Id.).

The City ordinances are enforceable against all privately

owned properties in the City. (Caywood Aff. ¶ 11). They are

enforced in all neighborhoods of the City and are enforced without

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regard to the race of the property owner. (Id. ¶ 11; Joyner Aff.,

¶ 7). Indeed, the county records of property ownership do not

identify the race of the owner and none of the NCE records identify

the race of the owner to whom enforcement OTAs are sent. (Caywood

Aff. ¶ 11). Therefore, often times, when NCE begins enforcement

actions against a property owner, the NCE officer does not know the

race of the property owner. (Joyner Aff. ¶ 7). Rather, NCE merely

knows that the property is in violation of the City Code. (Id. ¶

7).

The NCE begins enforcement actions against a property owner

when the violation comes to the attention of a Code enforcement

officer. (Caywood Aff. ¶ 12). Offending properties come to the

NCE’s attention in a variety of different ways, such as oral or

written complaints about the property received from neighborhood

associations, neighbors, citizens, other city employees of other

departments, or from the personal observation of the enforcement

officers when they are in the field inspecting other properties.

(Id.). The race of the property owner is not a factor in Caywood’s

decisions to take enforcement action and was not considered in

deciding to take action against Arrington. (Caywood Aff. ¶ 13;

Joyner Aff. ¶ 8).

Because NCE’s resources are finite, NCE must prioritize

enforcement efforts based on the seriousness of the violations, the

number of violations, and their visibility. Moreover, not all

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violations come to the attention of NCE and, even after abatement

has occurred due to NCE’s enforcement actions, future violations

may occur that may or may not come to NCE’s attention. (Caywood

Aff. ¶ 14; Joyner Aff. ¶ 9). However, when the new violations come

to NCE’s attention, additional enforcement actions are usually

taken. (Id.).

Until recently, Arrington owned and lived at 3422 S. Lafayette

Street. (Arrington Dep. p. 11). He also owned an adjacent lot at

3502 S. Lafayette Street (collectively “properties”). (Arrington

Dep. at 10). The properties front Lafayette Street, which is a

major corridor for traffic traveling north into the City’s downtown

area and to the City’s north side. (Par. 5 of Findings of Fact and

Conclusions of Law and Order of Permanent Injunction issued by The

Honorable Nancy Eshcoff Boyer, Judge Allen Superior Court, December

17, 2013, hereinafter “Order”, Ex. 1 to City Defendants’ Answer to

Plaintiff’s Complaint).

Arrington salvages and collects scrap metals and other

discarded items and then either sells, trades, or gives the items

away at yard sales. (Arrington Dep. at 71-72). Arrington had as

many yard sales as weather would permit. (Id.). Since August of

2009, NCE has received numerous complaints about Arrington’s

property located at 3422 Lafayette. (Caywood Aff. ¶ 15). The

complaints have been about the condition of the outside yards of

the property, including complaints that it looks like a “junkyard”

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and is constantly full of trash, junk, and dilapidated items as

well as broken down, partially dismantled and inoperable vehicles. 

(Id.). There were also complaints that the owner had frequent yard

sales. (Id.; Order ¶ 9).

Following receipt of these complaints in 2009, NCE began an

investigation of the property that led to the filing by the City of

a complaint for injunctive relief in the Allen Circuit Court, Cause

No. 02C01-1101-PL-00005. (Order ¶ 16). After the Circuit Court

conducted an evidentiary hearing that Arrington failed to attend,

the Circuit Court entered an order for mandatory injunction. (Id.

¶¶ 17-18). On April 8, 2011, NCE removed items from the properties

that violated the City Code. (Id. ¶ 19; Caywood Aff. ¶ 16).

However, Arrington continued to accumulate and store items of

personal property in violation of the City Code at both of his

properties for his yard sales, and the City continued to receive

numerous complaints about the storage of items and parked vehicles

at the properties. (Caywood Aff. ¶ 17). From January 15, 2011,

through March 5, 2013, the City received eight complaints about

trash and debris, abandoned vehicles, and deteriorated items on the

property. (Order ¶¶ 20-21). In addition, NCE Director Joyner and

NCE Administrator Caywood each received numerous other complaints

in person, by telephone, and by email about the properties. (Order

¶ 22).

After obtaining inspection warrants pursuant to I.C. §

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36-7-9-16 from the Allen Superior Court, NCE’s Caywood inspected

the properties on May 10, 2013, and found numerous items being

stored outside that were not designed or manufactured solely for

outdoor use and found multiple other items that were in

dilapidated, deteriorated or dismantled condition. (Order ¶ 24).

While at the properties, Caywood directed photos be taken of

numerous items violative of the City Code and also had a list

prepared of the personal property being stored in violation of City

Code. (Arrington Dep. Ex. A). 

On June 12, 2013, NCE issued a notice of violation by

certified mail, but Arrington failed to sign for the notice.

(Caywood Aff. ¶ 19). On July 24, 2013, NCE served Arrington with

two Orders to Abate, each with photos and lists of the personal

property found to be violative of the Code. (Id.). Pursuant to

I.C. § 36-7-9-5(b)(6), the orders informed Arrington that he had

the right to contest the OTAs by requesting a hearing. (Id.). The

OTAs gave Arrington ten days to abate and advised him that the

properties would be reinspected after ten days, on August 3, 2013,

and if violations remained, legal proceedings would be initiated to

compel Arrington’s compliance with City Code. (Id.; Arrington Dep.

Ex. A).

On August 9, 2013, Caywood reinspected the properties and

found that Arrington had not complied with the Orders to Abate.

(Caywood Aff. ¶ 20). Therefore, on September 13, 2013, the City

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filed a complaint for injunctive relief and to recover civil

penalties against Arrington in the Allen Superior Court. (Id.;

Arrington Dep. Ex. A). A hearing was held on October 18, 2013, and

testimony was taken from NCE witnesses Joyner and Caywood and from

Arrington. (Caywood Aff. ¶ 21). At the hearing, Arrington

admitted that he had received the two OTAs but that he had ignored

them since he saw nothing wrong with the items that were stored on

his properties. (Order ¶ 33). According to Arrington, even

dilapidated, deteriorated or dismantled items are items he can use.

(Id. ¶ 37).

On December 17, 2013, Judge Boyer issued an order of permanent

injunction. (City’s Answer Ex. A; Arrington Dep. Ex. B). In her

order, Judge Boyer concluded that the City had acted within its

lawful authority and its police power when it had enacted its safe

housing ordinance and its abandoned vehicle ordinance and that

these ordinances were legally enforceable as applied to Arrington.

(Order ¶¶ 14, 15). The court also held that the City had met its

burden of establishing that Arrington had repeatedly violated and

continued to violate Sections 152.04(C)(6) and (7), and Section

72.23 of the City Code, and that Arrington had received repeated

notices of these violations but had failed to take action to

correct the violations. (Order ¶¶ 23, 25 and 26). The Court then

issued a permanent mandatory and prohibitory injunction as follows:

27. Pursuant to I.C. 36-7-9-18, the Court

hereby grants a mandatory injunction against

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Arrington, and ORDERS Arrington to take

immediate action to bring the Properties into

compliance with the Ordinance. Specifically,

the Court hereby ORDERS as follows: 

a. Arrington is ORDERED to remove from

the outside of the Properties, including

porches and yards, all furniture, appliances,

or other household items that are not designed

or manufactured solely for outdoor use.

b. Arrington is ORDERED to remove from

outside of the Properties, all equipment,

furniture, bicycles, or children’s toys that

were designed or manufactured solely for

outdoor use but which have become dilapidated,

deteriorated, or dismantled.

c. Arrington is ORDERED to remove from

the outside of the Properties all vehicles

that are inoperable. Any operable vehicle must

be parked on a driveway, carport, street, or

alleyway in compliance with state and local

laws.

(Order ¶ 27)(emphasis in original). The court gave Arrington

thirty days to comply and directed the City to schedule another

hearing to determine if Arrington had complied with the mandatory

injunction. (Id. ¶¶ 28 and 29).

In addition to the mandatory injunction, the court entered a

permanent prohibitory injunction against Arrington:

The Court hereby enjoins Arrington from

violating Fort Wayne Municipal Code

§152.07(C)(7); Fort Wayne Municipal Code

§152.06; and Fort Wayne Municipal Code §72.22.

Specifically, the Court ORDERS and enjoins as

follows:

a. Arrington will not store on the

outside of the Properties, including all

porches and yards, any furniture, appliances,

or other household items that are not designed

or manufactured solely for outdoor use.

b. Arrington will not store on the

outside of the Properties, including all

porches and yards, any equipment, furniture,

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bicycles, or children’s toys that are designed

or manufactured solely for outdoor use but

which have become dilapidated, deteriorated,

or dismantled. 

c. Arrington will not park on the outside

of the Properties any vehicles that are

inoperable. All operable vehicles will be

parked on a driveway, carport, street, or

alleyway in compliance with state and local

laws.

(Order ¶ 32). 

On January 21, 2014, at the request of the City, the Court

scheduled a compliance hearing for February 11, 2014. (Arrington

Dep. Ex. C). The compliance hearing was held on February 11, 2014,

and the court found that Arrington had failed to comply with the

Court’s December 17, 2013, Order but that Arrington had agreed to

remove the items in violation, including a trampoline, wooden

indoor furniture and gas grills. (Arrington Dep. Ex. D). The

court gave Arrington fourteen days to remove the property as

described in the December 17, 2013, Order and stated that if

Arrington did not, the City was to file a notice of non-compliance,

after which the court would issue an order authorizing the City to

enter the properties to remove the items in violation of the Order. 

(Id.).

On February 28, 2014, the City filed a Notice of

Non-Compliance supported by an affidavit of Caywood and photographs

he directed be taken of the properties on February 27, 2014,

showing several items not in compliance including a trampoline,

wooden indoor furniture, gas grills, the motorcycle, and a pickup

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truck with a flat tire. (Arrington Dep. Ex. E). In response, on

March 3, 2014, the court issued an order authorizing the City to

enter upon the properties and remove items that remained in

violation of the December 17, 2013, Order. (Arrington Dep. Ex. F).

On March 10, 2014, Caywood, along with other code enforcement

officers, came to the properties and removed the items that were in

violation of the Court’s Order, including the motorcycle, the

truck, a trailer, grills, indoor furniture, tires, scrap, building

materials, children’s toys, etc. that were improperly stored

outside. (Caywood Aff. ¶¶ 22, 23). The City took only property

that was violative of the December 17, 2013, Order. (Id.).

The City contracted with Kelley to tow the truck, trailer and

motorcycle and contracted with Lunz to remove the other items in

violation of the December 17, 2013, Order. (Caywood Aff. ¶¶ 22, 23,

25; Novell Decl. ¶ 4). Lunz removed only the specific items of

property they were told to remove at the direction of the City. 

(Lunz Aff. ¶¶ 4-5). At all times on March 10, 2014, Lunz acted

pursuant to the court order and under the supervision and direction

of the City. (Id.).

Caywood instructed Kelley’s employees to remove the silver

truck because it was inoperable and lacked a battery.1 (Caywood

1 Caywood told Arrington that he was free to place a battery in the

truck, start the truck, drive it one foot forward and one foot back to prove

it was operable, but Arrington did not do so. (Caywood Aff. ¶ 27). Arrington

disputes this, although he produced no evidence to support his assertion. (DE

#66 at 2). 

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Aff. ¶ 23; Pl. Dep. at 35, 41; Novell Decl. ¶ 6). They were also

instructed to remove an inoperable motorcycle with missing parts

and a back tire that would not turn. (Caywood Aff. ¶ 23; Pl. Dep.

202-03; Novell Decl. ¶ 6). Additionally, Kelley was instructed to

remove a homemade trailer that was dilapidated and had a damaged

hitch. (Oct. Hr’g 41, Ex. B; Pl. Dep. 188; Caywood Aff. ¶ 23;

Novell Decl. ¶¶ 5-6). The truck and the trailer were full of trash

and debris, tires, building equipment, and other items in violation

of the court Order. (Caywood Aff. ¶ 28). Arrington conceded in his

deposition testimony that, to the best of his knowledge, Kelley was

acting at the direction of the City and Caywood. (Pl. Dep. at 189-

91). Caywood directed that photos be taken of the items removed to

demonstrate the condition of the property that was removed. (Id. ¶

22, Ex. 3). 

On March 10, 2016, two years later, Arrington filed this

lawsuit. According to Arrington’s deposition testimony, the sole

basis for his allegations of racially based selective enforcement

of the ordinance against him is photos he took at various times

showing alleged Code violations at several other properties. 

Arrington asserts that these properties are owned by white people,

and the NCE failed to take enforcement action against these

properties. (Arrington Dep. at 92). One of the properties

identified by Arrington is 3420 S. Lafayette, located adjacent to

Arrington’s residence and another is 3514 Lafayette, located

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adjacent to Arrington’s lot (Arrington Dep. at 93). He also

identified 4122 Winter Street (Arrington Dep. at 128-29), and 3711

Barr Street. (Arrington Dep. at 129-32). 

Arrington believes 3420 S. Lafayette is owned by a Caucasian

family named Wolf. He admits that NCE enforcement action was taken

against the property in 2010, but he claims the property is still

in violation. (Arrington Dep. at 103-05). Arrington claims the

3514 Lafayette property is owned (or at least occupied) by a

Hispanic woman. (Id. at 118-23). He purchased the trailer that

was removed from his property by NCE from her. (Id.). Arrington

believes the Winter Street address is owned (or at least occupied)

by a Caucasian, David Diggins. (Id. at 128-29). Arrington admits

that some enforcement action has been taken by NCE against this

property, but claims the property remains in violation. (Id. at

147-48). Arrington claims the 3711 Bar Street property is also

occupied, if not owned, by Caucasians. His photo shows a red Ford

truck parked in the grass in 2013 in violation of the Code.

(Arrington Dep. at 130-31; Ex. J). Arrington also referenced a

property on Calumet near Pettit that he claims has had an

improperly parked vehicle in the grass for many years. (Id. at

136-37). 

In response to these allegations, NCE Director Joyner looked

at NCE’s records to determine the enforcement actions, if any, that

NCE has taken against these properties. (Joyner Aff. ¶ 12). NCE’s

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records confirm that enforcement actions have been taken against

all but one of the identified properties. (Id.). The only

exception is 4336 Calumet Street, which does not appear to be a

valid address. (Id.). According to Joyner, it appears that

Calumet begins in the 4500 block. (Id.). 

Joyner chronicles the enforcement action taken against each of

these properties. (Id. ¶¶ 13-16). Enforcement at 3420 S. Lafayette

began on October 8, 2009, when five vehicles were tagged and the

owners were given twenty days to show they were operable. Upon

reinspection on October 29, 2009, three of the vehicles were towed,

the other two were found to no longer be in violation. Three

vehicles were tagged on February 27, 2013, but upon reinspection on

March 20, 2013, all three vehicles were gone. In January, 2015, two

vehicles were tagged, but upon inspection on February 13, 2015, the

vehicles were gone. On March 12, 2015, one vehicle was tagged but

on inspection on June 2, 2015, the vehicle was gone. On December

2, 2016, tags were placed on three vehicles and a motorcycle. Upon

reinspection on December 21, 2016, the motorcycle and one vehicle

were gone. Another vehicle was scheduled for tow but due to

weather, the tow had to be extended to January 6, 2017. (Joyner

Aff. ¶ 13). 

At 3514 S. Lafayette, on August 25, 2009, NCE records show

that a notice of violation was sent. NCE records show that the

property was brought to code November 3, 2009. On March 18, 2011,

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a vehicle was tagged, but on reinspection on March 25, 2011, the

vehicle was shown operable. On November 13, 2012, the same vehicle

was tagged again, but upon reinspection, the vehicle was gone. On

September 26, 2014, a minimum housing case was brought and there

were several order to repair hearings after which the owner brought

the home to code. (Joyner Aff. ¶ 14). 

NCE records show that, in December 2009, the property at 4122

Winter was posted for weeds. In 2015, a courtesy notice of an OTA

was served. Upon reinspection, the owner had removed the debris,

abating the cited violation. In December, 2015 notice was given of

several oversized vehicles on the property but upon reinspection,

the vehicles had been removed. (Joyner Aff. ¶ 15). 

At 3711 Barr, NCE records show that an OTA was issued on March

25, 2011, and the property was cleaned up by the owner upon

reinspection on April 29, 2011. Another OTA was issued on July 2,

2014, but when reinspected, the property had been cleaned up. On

the same date the OTA was issued, a 20-day tag was placed on a red

Ford pickup. Upon reinspection on July 23, 2014, the vehicle was

gone. On October 5, 2015, a minimum housing case was begun and, as

of May 31, 2016, the owner had brought the house to code. (Joyner

Aff. ¶ 16).

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ANALYSIS

Arrington’s Claims Against the City of Fort Wayne, Mayor Henry, and

John Caywood

To prevail on a Section 1983 claim, a plaintiff must show that

he was deprived of a right secured by the Constitution or laws of

the United States and the deprivation was caused by a person acting

under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764

(7th Cir. 2007). 

Procedural Due Process Claims

Arrington’s pro se complaint does not make it clear whether he

intended to allege that Defendants violated his Fourteenth

Amendment due process rights, but the Defendants have addressed

this claim and, for that reason, this Court will too. 

The basic rights guaranteed by constitutional

due process are notice of the intended adverse

government action and an opportunity to be

heard in response, although more elaborate

procedural rights - such as the right to

present evidence, to confront adverse

witnesses, and to be represented by counsel -

may apply in cases in which vital private

interests are at risk. 

Simpson v. Brown Cnty., 860 F.3d 1001, 1006 (7th Cir. 2017).

To prevail on a due process claim, Arrington must show that he

had a protected property interest, was deprived of that interest by

an individual acting under color of state law, and was denied due

process. Booker-L v. Superintendent, 668 F.3d 896, 900 (7th Cir.

2012). Defendants have pointed to several procedures that are in

place to ensure that individuals such as Arrington have notice and

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an opportunity to be heard prior to property being taken. In fact,

Defendants outline an extensive procedure that took place prior to

Arrington’s property being seized. The procedures in place to

protect Arrington’s property rights went well beyond what is

mandated by the Due Process Clause. Id. (“Governments may, of

course, offer procedural protections that exceed the constitutional

minimum through statute or administrative rule. Many state and

local licensing schemes provide procedural protections that are far

more elaborate than due process requires.”). In response,

Arrington has not pointed to any policy or procedure that he claims

violated his due process rights. Because there is no evidence to

support a due process claim against the City, it must be dismissed. 

The claims against Mayor Henry and Caywood in their official

capacities must also fail, because “[a]n official capacity suit is

tantamount to a claim against the government entity itself.” 

Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007)(citations

omitted); see McLaughlin v. Freeman, No. 2:08-CV-58-PRC, 2013 WL

5407041, at *8 (N.D. Ind. Sept. 26, 2013). 

As for any individual capacity claims Arrington may be

asserting against Mayor Henry or Caywood, those claims fail for the

same reasons that the official capacity claims fail: there is

simply no evidence that Arrington was denied due process. 

Additionally, Arrington has pointed to no evidence that Mayor Henry

was involved in this matter in any way. Furthermore, Mayor Henry

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is not liable merely because he supervises the individuals involved

in this incident. See Zimmerman v. Tribble, 226 F.3d 568, 574 (7th

Cir. 2000) (“However, § 1983 does not allow actions against

individuals merely for their supervisory role of others.”). 

Equal Protection Claims

Arrington believes that the NCE targeted him for an

enforcement action because of his race, in violation of the

Fourteenth Amendment’s Equal Protection Clause. To succeed on this

claim, Arrington must produce some evidence that a “state actor has

treated him differently from persons of a different race and that

the actor did so purposefully.” Xiong v. Wagner, 700 F.3d 282, 295

(7th Cir. 2012)(quoting Billings v. Madison Metro. Sch. Dist., 259

F.3d 807, 812 (7th Cir. 2001)); see also Dunnet Bay Const. Co. v.

Borggren, 799 F.3d 676, 697 (7th Cir. 2015)(“To establish liability

for an equal protection violation, a plaintiff must establish that

the defendant acted with a discriminatory purpose and discriminated

against him because of his membership in an identifiable group.”). 

Arrington pointed to several properties owned or occupied by

Caucasians that Arrington alleges also had code violations. He

alleged that no action was taken against these individuals because

of their race. Defendants, however, have produced evidence that

enforcement action was taken at all of the properties that

Arrington points to except one. That address was invalid. 

Furthermore, the City and Caywood have produced evidence that race

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is not a factor in their enforcement decisions, and it played no

role in their decision to take action against Arrington. Arrington

offers no evidence in response. Accordingly, his equal protection

claims against the City, Mayor Henry, and Caywood must be

dismissed.

Arrington’s Claims against Lunz and Kelley

Arrington’s claims against both Lunz and Kelley also fail. 

Lunz has produced evidence that its employees entered the property

on March 10, 2014, and removed only the specific items of property

they were told to remove at the direction of the City. (Lunz Aff.,

¶¶ 4-5). At all times on March 10, 2014, Lunz acted pursuant to

the court order and under the supervision and direction of the

City. (Id.). Arrington has produced no evidence disputing these

facts. 

Kelley has produced evidence that, in removing Arrington’s

vehicles, it acted at the City’s direction. In fact, Arrington

conceded this at his deposition, and he has produced no evidence

suggesting otherwise in response to Kelley’s summary judgment

motion. (Pl. Dep. at 189-91). 

Additionally, Arrington has not established that either Lunz

or Kelley were acting under color of state law. Reynolds, 488 F.3d

at 764. This would require a showing that Lunz or Kelley conspired

with a state actor to deprive him of his rights. See Brokaw v.

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Mercer Cnty., 235 F.3d 1000, 1016 (7th Cir. 2000)(“While a private

citizen cannot ordinarily be held liable under Section 1983 because

the statute requires action under color of state law, if a private

citizen conspires with a state actor, then the private citizen is

subject to Section 1983 liability.”). Arrington has produced no

evidence that either Lunz or Kelley conspired with the City to

deprive him of his constitutional rights. 

Collateral Estoppel and res judicata

Each Defendant has argued that Arrington’s claims are barred

by collateral estoppel and res judicata.2

 The briefing of these

issues is rather conclusory. Because collateral estoppel and res

judicata are not jurisdictional in nature, the Court need not

address them here. See Rekhi v. Wildwood Indus., 61 F.3d 1313,

1317 (7th Cir. 1995)(“Collateral estoppel is a defense, and not a

jurisdictional one...”). Each of Arrington’s federal claims fail

on the merits, and collateral estoppel and res judicata need not be

addressed. 

2

 It is unclear whether the City of Fort Wayne, Mayor Henry, and Caywood

are arguing that all claims are barred by collateral estoppel and res judicata

or just the theft claim. Their arguments are directed only at the theft

claim, but they appear to be asserting collateral estoppel and res judicata as

to all of Arrington’s claims. 

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Theft in Violation of I.C. § 35-43-4-2(a)

Arrington has alleged that each Defendant committed theft in

violation of Indiana Code § 35-43-4-2(a) when they removed the

items from his property. Because the federal claims are being

dismissed, the court will remand this case to state court for

further proceedings. See Doe-2 v. McLean Cnty. Unit Dist. No. 5 Bd.

of Dirs., 593 F.3d 507, 513 (7th Cir. 2010) (“Ordinarily, when a

district court dismisses the federal claims conferring original

jurisdiction prior to trial, it relinquishes supplemental

jurisdiction over any state-law claims under 28 U.S.C.

§ 1367(c).”).3

CONCLUSION

For the reasons set forth above, Defendant Lunz Excavating,

Inc.’s Motion for Summary Judgment (DE #50), Defendant Kelley

Towing’s Motion for Summary Judgment (DE #52), and Defendants, City

of Fort Wayne and John Caywood’s Motion for Summary Judgment (DE

#56) are GRANTED. Arrington’s federal claims are DISMISSED WITH

PREJUDICE, and this case is REMANDED to Allen Superior Court for

further proceedings. 

DATED: September 27, 2017 /s/ RUDY LOZANO, Judge

United States District Court

3

 This Court has an additional jurisdictional concern with regard to

Arrington’s theft claim, making remand particularly appropriate here. This

Court is concerned that the theft claim may be barred by the Rooker-Feldman

doctrine. Unfortunately, none of the Defendants raised this issue. RookerFeldman generally bars a district court from exercising jurisdiction over

“cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of that judgment.” Exxon Mobil

v. Saudi Basic Indus., 544 U.S. 280, 284 (2005); see also Homola v. McNamara,

59 F.3d 647, 650 (7th Cir. 1995).

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