UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOSEPH LOZANO, JR., B.L. b/n/f JOSEPH )

LOZANO, JR., O.L. b/n/f JOSEPH LOZANO, JR., )

and T.L. b/n/f JOSEPH LOZANO, JR., )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:15-CV-431-PRC

)

INDIANA DEPARTMENT OF CHILD )

SERVICES, STATE OF INDIANA, SHAWNA )

M. SMITH, KATHRYN DEARDORFF, RACHEL )

GIBSON, TINA DINGMAN, NICOLE )

MARKELY, LOUELLA F. RICHEY, )

TERRANCE CIBOCH, NATHAN JOHNSON, )

and JAMES WIDE, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on a Motion for Summary Judgment [DE 38], filed by

Defendants Indiana Department of Child Services, State of Indiana, Shawna M. Smith, Kathryn

Deardorff,1

 Rachel Gibson, Tina Dingman, Nicole Markely, Louella F. Richey, Terrance Ciboch,

Nathan Johnson, and James Wide on July 10, 2017. Plaintiffs Joseph Lozano, Jr., B.L. b/n/f Joseph

Lozano, Jr., O.L. b/n/f Joseph Lozano, Jr., and T.L. b/n/f Joseph Lozano, Jr. filed a response on

October 6, 2017, and Defendants filed a reply on October 20, 2017. 

PROCEDURAL BACKGROUND

Plaintiffs filed their Complaint in the Porter County, Indiana, Superior Court on October 23,

2015. Plaintiffs allege that Defendants violated Plaintiffs’ civil rights, bringing claims under 42

U.S.C. § 1983 for the denial of a parent’s right to establish a home and raise his children pursuant

1

 Although Plaintiffs’ Complaint spells Kathryn Deardorff’s last name as “Deardoff,” all the documentation

submitted in the summary judgment briefing, including Deardorff’s Affidavit, spells her last name as “Deardorff.” The

Court will use the correct spelling.
to the Fourteenth Amendment to the United States Constitution; for a violation of Plaintiffs’

substantive and procedural due process rights pursuant to the Fourteenth Amendment to the United

States Constitution; for a violation of the Plaintiffs’ right to be free from unreasonable seizure

pursuant to the Fourth Amendment to the United States Constitution; for deprivation of equal

protection and due process rights under the Fourteenth Amendment to the United States Constitution

by failing to comply with applicable state and federal statutes and regulations; and for deprivation

of the right to petition the government pursuant to the First Amendment to the United States

Constitution.

In addition, Plaintiffs allege that Defendants violated their statutory duties under Indiana

Code § 31-33-1-1, et seq. as well as state and federal statutes and regulations designed to protect

families and children, including but not limited to 42 U.S.C. § 5106, 42 U.S.C. § 671(a)(15), 42

U.S.C. § 675(1)(A), 42 U.S.C. § 675(5), and “C.F.R. 1356.21,” implemented under Indiana Code

¶ 31-34-1-1. Also under state law, Plaintiffs allege that Defendants failed to use ordinary and

reasonable care in connection with their interactions with Plaintiffs.

On November 30, 2015, Defendants removed the case to this Court. The parties orally agreed

on the record to have this case assigned to a United States Magistrate Judge to conduct all further

proceedings and to order the entry of a final judgment in this case. Therefore, this Court has

jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure require that a motion for summary judgment be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of

2
summary judgment, after adequate time for discovery and upon motion, 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). “Summary judgment is appropriate when no material fact is disputed and the

moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could

find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566

(7th Cir. 2014).

A party seeking summary judgment bears the initial responsibility of informing the 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, that it believes

demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.

Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply

“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798

F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,

the moving party is not required to support its motion with affidavits or other similar materials

negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;

Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).

“Once the moving party puts forth evidence showing the absence of a genuine dispute of

material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating

a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party

cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See

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Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)

(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails

to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion

and supporting materials—including the facts considered undisputed—show that the movant is

entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.

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 in favor

of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765

(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). 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, but instead to determine whether there is a genuine issue of triable fact. See Anderson,

477 U.S. at 249-50.

MATERIAL FACTS

1. Joseph and Elizabeth Lozano’s Relationship

In August 2007, Joseph Lozano, Jr. and Elizabeth met on Facebook. (Joseph Dep. 7:6-17.)

On the second night that they were dating, Elizabeth moved in with Joseph into his parents’ house,

where Joseph’s parents, three nephews, and sister lived. (Joseph Dep. 7:20-25, 8:23-9:13).

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Joseph and Elizabeth had three children together. O.L. was born was born in 2008. (Joseph

Dep. 8:12-15). Joseph and Elizabeth married the next month. (Joseph Dep. 8:6-11). In September

2008, Joseph and Elizabeth moved into their mobile home. (Joseph Dep. 10:17-23). In 2009, B.L.

was born. (Joseph Dep. 13:22-23). In late 2009, Joseph, Elizabeth, O.L., and B.L. moved back into

Joseph’s parents’ house. (Joseph Dep. 14:11-16). In 2011, T.L. was born. (Joseph Dep. 16:11-12).

On March 13, 2012, a report was made to DCS that Elizabeth took the children to Wisconsin

and did not return. (Ex. Z). On May 10, 2012, a report was made to DCS concerning O.L. living with

her grandfather and a previous unsubstantiated report of sexual abuse in Wisconsin. (Ex. AA).

In January 2013, Joseph, Elizabeth, and the children stayed in an EconoLodge. (Ex. V -

DCS000009). On January 21, 2013, a report was made to DCS that Elizabeth drinks and takes drugs,

that Joseph takes drugs, and that the children were left unattended. (Ex. BB). While living at the

EconoLodge, Joseph and Elizabeth were investigated by DCS for neglect. (Ex. V - DCS000009-11).

Among other things, the report source claimed that Joseph used the drug “triple c.” (Ex. V -

DCS000009; Ex. BB - DCS000044). The allegations of neglect were unsubstantiated, although

Joseph tested positive for THC. (Ex. V - DCS000010; Joseph Dep. 78-79: 24-5).

Joseph was incarcerated from April 2013 to August 2013. (Joseph Dep. 17:6-12). Before

Joseph went to jail, Joseph’s mother, Paula Lozano, had not made any reports to the Indiana

Department of Child Services (“DCS”) about the children. (Paula Dep. 13:5-13). While Joseph was

incarcerated, Elizabeth obtained government-assisted housing in Valparaiso. (Joseph Dep.

16:23-17:5, 21:16-17, 22:4-12). On August 8, 2013, Joseph was released from jail and moved into

the apartment with Elizabeth. (Joseph Dep.23:17-24:1). Joseph never saw Elizabeth abuse the

children. (Joseph Dep. 29:17-24). When living with Elizabeth after getting out of jail, Joseph never

5
saw Elizabeth abuse the children in any way. (Joseph Dep. 85:9-15). Joseph never notified DCS that

Elizabeth was abusing the children. (Joseph Dep. 85:13-15). Joseph testified that, in mid-September,

Elizabeth “kicked [him] out” of the apartment. (Joseph Dep. 24:2-6).

Shortly after, Elizabeth obtained Orders of Protection for herself against Joseph, each of his

parents, and Crystal. (Joseph Dep. 27:12-16, 27:21-25; Paula Dep. 29:12-13, 30:6-19, 48:2-14; Ex.

G-J).2 The Order of Protection against Joseph lists O.L., B.L., and T.L. as “Protected Persons.” (Ex.

G).

After Elizabeth made Joseph leave the apartment, Paula called the DCS hotline many times.

(Paula Dep. 25:4-11). Joseph never saw Elizabeth abuse the children. (Joseph Dep. 29:17-24). As

far as Joseph knows, DCS investigated the allegations. (Joseph Dep. 89:5-12).

3. Valparaiso Police Department Investigates Paula’s Accusations of Abuse

On September 25, 2013, Paula met with Officer Pederson of the Valparaiso Police

Department and made a complaint regarding suspected child abuse by Elizabeth. (Paula Dep.

31:14-15, 32:6-21; Ex. S - DCS000279). The same date, Officer Pederson conducted a wellness

check, but did not see any signs of bruising and reported that the children looked okay. (Joseph Dep.

89:9-18; Paula Dep. 33:1-9; Ex. W - DCS 000014; Ex. S - DCS000280).

4. FCM Shawna Smith Investigates Reports Made to DCS

Also on September 25, 2013, DCS received a report alleging O.L. was the victim of physical

abuse, including bruises on her face and arm; that T.L. had a diaper rash and a bruise on his leg; that

Elizabeth’s apartment was a mess; and that Elizabeth had gotten a restraining order “on all of them.”

2

 The term “protective order,” “no-contact order,” and “restraining order” were used interchangeably by many

of the individuals involved in this case, although it is the same document being referenced each time. The box for

“protective” order was checked on the document itself. See Ex. G. The parties have agreed to refer to this document as

an “Order of Protection.”

6
(Smith Aff. ¶¶ 4-5, Ex. W - DCS 000013; Ex. CC - DCS000047-48). On September 26, 2013,

Family Case Manager (“FCM”) Shawna Smith met with O.L. at O.L.’s elementary school. (Smith

Aff. ¶¶ 4-5; Ex. W - DCS 000014). O.L. appeared healthy and was appropriately dressed. Id. O.L.

stated that both parents spanked her on her butt when she got in trouble. Id. O.L. denied being scared

of Elizabeth or having been harmed by Elizabeth in any way. Id. O.L. had a “very small circular

mark” on the right side of her face. Id. O.L. denied anyone hitting her. Id. O.L. stated that Elizabeth

cleaned O.L.’s room every day. Id.

On September 27, 2013, FCM Smith made a scheduled home visit to Elizabeth’s apartment.

(Smith Aff. ¶¶ 4-5; Ex. W - DCS 000014). There was not any alcohol in the apartment, and

Elizabeth did not appear to be under the influence. Id. Smith was told that Elizabeth was not allowed

to drink under the terms of her probation. Id. Smith found the home very neat and tidy, well above

the minimum sufficient level of care, and there was nothing endangering to the health and safety of

the children. Id. Smith noted that there were ample amounts of food and supplies and that all

household utilities appeared to be in safe operating condition. Id.

B.L. appeared healthy, was appropriately dressed, and did not have any bruises or obvious

signs of injuries at the time of the interview. Id. B.L. stated that when he was punished he was put

in “time out” or is spanked. Id. Smith asked B.L. if he ever got hurt after being spanked, to which

B.L. said no. Id. B.L. denied that his brother or sister had been hurt after being spanked. Id. B.L.

denied being scared of his mother or anyone who comes to visit the home. Id.

Smith was unable to interview T.L. due to his age. (Smith Aff. ¶ ¶¶ 4-5; Ex. W - DCS

000014). However, T.L. appeared healthy and appropriately dressed and did not have any injuries

or obvious signs of injury. Id. Smith reached the following conclusions:

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Physical abuse (bruises/cuts/welts) against Elizabeth Lozano in regards to O.L. will

be unsubstantiated as there is a lack of a preponderance of evidence to support the

allegations are true. O.L. did not have any injuries and denied being physically

abused by her mother. The children all report receiving age appropriate discipline

and deny a history of receiving injuries as a result of physical discipline. FCM found

nothing in the home to be endangering to the health and safety of the children.

(Smith Aff. ¶¶ 4-5; Ex. W - DCS 000015).

On September 28, 2013, DCS received a report that Elizabeth drinks, takes pills, and is

violent and that the children were left alone but not overnight. (Ex. DD).

On October 3, 2013, FCM Smith met with Joseph at the DCS office. (Smith Aff. ¶¶ 4-5; Ex.

W - DCS 000014). According to Smith, she advised Joseph of the allegations, the reasons for the

current DCS assessment, and the outcome of that assessment; Joseph denied any concern for the

safety of his children when describing his observations of the home; Joseph denied that Elizabeth’s

alcohol consumption has ever endangered the safety of the children; Joseph also denied any

knowledge of Elizabeth currently drinking; and Joseph was advised that if he had any future

concerns for his children he could contact DCS or contact law enforcement to request a wellness

check of the children. Id. In his deposition, Joseph testified that Smith told him, “Stop having your

friends and family call about child abuse.” (Joseph Dep., 88:25-89:4).

5. FCM Deardorff Investigates Reports Made to DCS

On October 8, 2013 DCS received a report that Elizabeth was leaving the children by

themselves and locking them in the apartment; that Elizabeth abused the children in the past, with

T.L. having welts on his legs and B.L. having a black eye, and that these incidents were reported to

DCS; that Elizabeth is an alcoholic; and that Elizabeth was using drugs and was mentally abusing

the children by keeping the children away from their family. (Deardorff Aff. ¶¶ 4-5; Ex. X -

DCS000017-18).

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On October 10, 2013, FCM Deardorff made an unannounced visit to Elizabeth’s home.

(Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000018). Deardorff observed that Elizabeth did not appear to

be under the influence of anything and that there did not appear to be any alcohol containers in the

home. Id. Elizabeth admitted that she did have a drinking problem but that she had been sober since

April 2013 because she made the decision that her children were more important. Id. Elizabeth also

denied using any type of non-prescribed pills and reported that she was no longer taking Xanax. Id.

Elizabeth adamantly denied that she left the children unattended, stating that the only time the

children are left alone is for 1-2 minutes when she might walk over to the neighbor’s house to

borrow something. Id. Elizabeth also had a probation officer and was attending two classes a week

for Housing Opportunities in order to keep her family in their home. Id. Elizabeth stated that on

October 31, 2013, she and her children would be moving into the Caring Place, at the

recommendation of her Housing Opportunities worker. Id.

On October 15, 2013, FCM Deardorff conducted an announced home visit. (Deardorff Aff.

¶¶ 4-5; Ex. X - DCS000018). Present was Elizabeth, O.L, B.L., T.L., and Ann Baas, Elizabeth’s

caseworker from the Family Youth Service Bureau. Id. Deardorff noted that B.L. had a scrape on

the top right side of his forehead and a small bruise on the outside of his right ear. Id. Elizabeth

stated that B.L. had recently thrown himself down on the concrete and had also been hitting himself

when he becomes angry. Id. Baas informed Deardorff that there were issues regarding B.L.’s

behavior and that Baas was making a referral for B.L. to see a therapist to see if something was

going on emotionally. (Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000019). Deardorff asked O.L. what

happened to B.L., and O.L. stated that B.L. “hits himself.” Id. Deardorff noted that B.L. had a t-shirt

9
on and his arms appeared free from any cuts, marks, welts, or bruises. (Deardorff Aff. ¶¶ 4-5; Ex.

X - DCS000018).

O.L. stated that when she gets into trouble she has to stand in the corner like her brother.

(Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000019). O.L. denied that she or her brothers got spanked, that

physical abuse occurred in the home, and that the children were ever left alone. Id. O.L. appeared

free from any cuts, marks, welts, or bruises. Id. O.L. stated that the neighbor “Ms. Angela” would

watch the children if Elizabeth had to go somewhere but that the children are primarily watched by

Elizabeth. Id.

On October 17, 2013, DCS received a report that Elizabeth and the neighbor “Angela” bully

the children and that B.L. had bruises and red marks on his face that were not there the other day.

(Ex. GG).

6. B.L. Is Admitted to the Hospital

On October 23, 2013, FCM Williams met with Elizabeth, B.L., and T.L. (O.L. was at school)

at the Lake County Juvenile Courthouse. Elizabeth reported that, on the previous day, B.L. had

thrown himself down the stairs and exhibited self-harming behavior. An attempt was made to

interview B.L., but due to his lethargic state he could not remain focused. Because of the concern

of possible head trauma, B.L. was taken to Methodist Hospital in Merrillville, Indiana. (Ex. X -

DCS000019).

The same date, FCM Deardorff received a phone call from Family Case Management

Supervisor (“FCMS”) LaShaunta Pierce. (Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000019). Deardorff

was informed that due to possible head trauma, B.L. had been taken to the hospital. Id. FCM

Deardorff and FCM Smith went to the hospital. Id. Smith contacted Detective Castellanos of the

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Valparaiso Detective Bureau, who met Deardorff and Smith at the hospital. Id. Deardorff and Smith

escorted Elizabeth to a small private room. Id. Elizabeth’s neighbor Angela Terrell joined them.

Elizabeth told them that on October 22, 2013, B.L. had fallen down the stairs. Elizabeth and Angela

provided extensive details regarding B.L. behavior.

Deardorff and Smith then visited B.L. in the emergency room. B.L.’s right ear was purple

and he had a black eye. (Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000020). B.L. had two large injuries on

each side of his bottom, and his arms were covered in bruises and appeared to have four cigarette

burns. Id. B.L.’s speech was slurred and much slower, and his body movements were much slower.

Id. Deardorff and Smith attempted to speak to B.L. about his injuries, but he gave varying stories

and was falling asleep throughout the conversation. Id. T.L. did not have any outward signs of abuse

or neglect. Deardorff and Smith contacted Detective Castellanos who took pictures of B.L. Detective

Castellanos, FCM Williams, and B.L.’s attending nurse all attempted to speak with B.L. but were

unable to get an answer about how he was injured.

At that time, it was determined that all three Lozano children would be taken into protective

custody. (Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000021). FCM Smith contacted FCM Gibson of Porter

County DCS who in turned picked O.L. up from school. A “Taking Custody of A Child Without a

Verbal or Written Court Order: Description of Circumstances” form was completed by Deardorff

for both Elizabeth and Joseph, and the forms were submitted to the juvenile court at the Initial

Detention Hearing. (Deardorff Aff. ¶ 9, Exs. SS, RR - DCS000129-132). Deardorff also filed a

“Petition for Emergency Detention” for each of the children. (Ex. K - DCS000126-128). The three

children were placed with a foster family.

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That same day, October 23, 2013, Deardorff, Detective Castellanos, and Elizabeth went to

the Valparaiso Police Department in Detective Castellanos’ car. (Deardorff Aff. ¶¶ 4-5; Ex. X -

DCS000021). Elizabeth admitted to Deardorff that, although she initially told DCS that she took

B.L. to the hospital on October 22, 2013, she had lied and that she did not take B.L. to get examined.

(Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000023-24). Throughout the interview and subsequent

investigation, it was discovered that B.L. had been abused. (Deardorff Aff. ¶¶ 4-5; Ex. X -

DCS000023-29). The majority of the abuse was attributable to Elizabeth’s neighbor, Angela Terrell.

Id.

Joseph was not aware that Angela Terrell was involved until the discovery from the police.

(Joseph Dep. 85:23-86:-1). Paula never mentioned Angela Terrell to DCS because she did not know

about her. (Paula Dep. 66:2-15). Paula did not report to DCS any abuse with a wooden spoon, a

flyswatter, a belt, or that B.L. was slapped. (Paula Dep. 64:2-19). Paula also did not report that B.L.

had been punished by having food withheld or that B.L. was once punished for urinating on Terrell’s

floor. (Paula Dep. 64-65:20-7).

7. The October 24, 2013 Initial Detention Hearing

On October 24, 2013, a Verified Petition Alleging Children in Need of Services was filed

by DCS attorney Julie Carter. (Ex. L - DCS000145-147). The Petition included that “[t]he father of

the children does not have legal custody and the Porter Superior Court issued an Order of Protection

on September 26, 2013, which prohibits him from having contact with the children due to issues of

domestic violence. The Order is in effect until September 24, 2015.” (Ex. L - DCS000146).

On October 24, 2013, Joseph had a court date with the Porter Superior Court to get the

September 24, 2013 Order of Protection dismissed. (Joseph Dep. 33:3-13). Joseph and Paula were

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en route to the court hearing when Joseph received a call informing him that he was needed at the

Porter Juvenile Court. (Joseph Dep. 35-36:16-8). They changed direction, and Paula drove Joseph

to the juvenile court. (Paula Dep. 36:2-7).

At the Porter Juvenile Court, present were Joseph, Joseph’s attorney Donald J. Evans,

Elizabeth, Elizabeth’s attorney Joanne Baitup, DCS attorney Julie Carter, and FCM Deardorff.

(Joseph Dep. 37:5-11; Ex. M - DCS000149-150). The Porter Juvenile Court issued a

“Detention/Initial Hearing Order” that same day, October 24, 2013. (Ex. M - DCS000149-151). The

court found that it was in the children’s best interest to be removed from the home and that

“reasonable efforts to prevent or eliminate removal of the children were not required due to the

emergency nature of the situation.” (Ex. M - DCS000150). Further, the Court stated, “The Court

finds there is currently a protective order in place between father and the children, and that there is

the potential for a No Contact Order between mother and the children, and therefore does not

authorize mother or father visitation with the children at this time.” (Ex. M - DCS000150). The

Court also issued an “Order for Emergency Detention,” ordering that the three children should be

immediately detained by DCS. (Ex. N - DCS000152). Lastly, to allow Joseph and Elizabeth the

opportunity to consult with counsel, the court set a Continued Initial Hearing for November 5, 2013.

(Ex. M - DCS000151).

While the October 24, 2013 juvenile court hearing was occurring, FCM Smith met B.L. and

his foster parents at the St. Anthony Hospital in the Emergency Room. (Ex. X - DCS000029). The

foster father stated that B.L. had slept most of the time in their care and that he complained of head

pain. Id. The CT scan of B.L.’s brain showed a subdural hematoma, and B.L. was transported to

Riley Children’s Hospital in Indianapolis. Id. 

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During the October 24, 2013 hearing, the Porter Juvenile Court judge notified Joseph that

B.L. was seriously injured, that B.L. was being taken to Riley’s Children’s Hospital in Indianapolis,

and that the other two children had been put in foster care. (Joseph Dep. 38:1-16, 40:15-19). After

the hearing, FCM Deardorff met with Joseph and advised him of the report made regarding his

children on October 11, 2013. (Deardorff Aff. ¶¶ 4-5; Ex. X - DCS000030). 

While Joseph and his mother were in the juvenile court hearing, Joseph’s father went to the

Porter Superior Court regarding the September 24, 2013 Orders of Protection against Joseph, his

parents, and his sister. (Joseph Dep. 36:12-18; Paula Dep. 36:2-7). The four Orders of Protection

were dismissed the same day as the juvenile court hearing. (Joseph Dep. 56:18-23, 86:19-10; Paula

Dep. 36:18-20). Although it is unclear at what time the Orders of Protection were dismissed, it is

clear that the Porter Juvenile Court judge did not know that the Order of Protection against Joseph

had been dismissed at the time of the judge’s ruling. (Paula Dep. 36:16-25, 40:17-25, 47:2-10). The

juvenile court did not receive the paperwork that showed that the Order of Protection against Joseph

had been dismissed until October 28, 2017. (Paula Dep. 50-51:20-7).

On October 24, 2013, DCS received reports that Riley Children’s Hospital was attempting

to get in contact with Porter County DCS and that permission was needed to treat B.L. (Exs. II, JJ).

On October 25, 2013, DCS again received a report that Riley Children’s Hospital needed permission

to treat B.L. (Ex. JJ).

At all relevant times, including from October 24, 2013, through December 5, 2013, Joseph

and Elizabeth were married and were not deemed legally separated, as Joseph’s Verified Petition

for Dissolution was not filed until July 2014 and the Decree of Dissolution of Marriage was not

entered until May 8, 2015. (Pl. Ex. 27).

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8. Markley Informs Joseph of B.L.’s Condition

On October 25, 2013, B.L. had brain surgery at Riley Children’s Hospital during which a

bone flap was removed in order to relieve the pressure on B.L.’s brain. (Deardorff Aff. ¶¶ 4-5; Ex.

X - DCS000030; Markley Aff. ¶ 9). B.L. was kept at Riley Children’s Hospital from October 24,

2013, until November 11, 2013. Id.

Over the weekend of October 24-25, 2013, FCM Nicole Markley was contacted by the social

worker from Riley Children’s Hospital, who gave Markley updates. (Markley Aff. ¶ 5). On October

25, 2013, Markley called Joseph and relayed the information about B.L.’s condition. (Markley Aff.

¶ 6). Markley told Joseph that she would let him know when she got any more information. Id.

Joseph was upset and did not understand why he could not visit B.L. at Riley Children’s Hospital.

Id. Markley told Joseph that, while the Order of Protection was in effect, there was nothing she

could do about it and that she was required to follow court orders. Id.

On October 26, 2013, DCS received four reports regarding the Lozano children. The first

report was that the reporting source was looking for information on B.L.’s condition on the basis that

Joseph was not being given information despite being promised frequent communication. (Ex. KK).

A second report made complaints against Elizabeth and complained that Joseph was not being given

information. (Ex. LL). The third report was that past complaints of abuse had not be investigated

and that the paternal family was being kept from the children. The report also informed DCS that

the Order of Protection was dismissed. (Ex. MM). The fourth report was the same as the third. (Ex.

NN).

On October 28, 2013, at 8:15 a.m., Markley called Joseph, but she received a notification

that Joseph’s voicemail was full. (Markley Aff. ¶ 7). On October 28, 2013, at 4:00 p.m., Markley

15
attempted to call Joseph from her cell phone, but she received a notification that his phone would

not accept voicemails from blocked calls. (Markley Aff. ¶ 8). On October 29, 2013, Markley spoke

to Joseph at 7:15 a.m. (Markley Aff. ¶ 9). Joseph stated that he had been having problems with his

phone. Id. Markley gave Joseph a rather long update of B.L.’s condition, including B.L. having a

piece of his skull removed to lower the pressure on his brain and that B.L. was on a breathing tube

and heavily sedated at that time. Id. Markley told Joseph that she would let him know if there were

any updates and that she would be in contact when the hospital wanted to replace the skull piece

because that would require consent. Id.

On November 5, 2013, Markley notified Riley Children’s Hospital that Joseph had been

granted visitation rights by the Porter Juvenile Court. (Markley Aff. ¶ 12). At that point, Riley

Children’s Hospital gave Joseph a call-in code that allowed Joseph to call and receive information

about B.L. Id.

9. Joseph Goes to Indianapolis DCS Headquarters and Speaks to James Wide

At some point, Joseph and his mother drove to DCS headquarters in Indianapolis. (Joseph

Dep. 44:4-14; Paula Dep. 43:17-21). Joseph spoke with James Wide, who is the Deputy Director of

Communications for DCS. (Joseph Dep. 44:15-21, 47:10-11; Paula Dep. 43:17-21; Ex. F - Wide Aff.

¶ 2). Paula testified that James told her and Joseph that he would try to help them so that Joseph

could visit B.L. and the children would go to Paula’s home. (Paula Dep. 44:10-23, 45:8-12). Joseph

expected James to give him a reason and explain more of the situation why the children were not

in Joseph’s custody. (Joseph Dep. 49:7-11). Wide did not know anything about Joseph’s situation

before he spoke to Joseph. (Joseph Dep. 49:12-16). As Deputy Director of Communications, Wide

has no role or involvement in the detention, retention, or placement of children. (Wide Aff. ¶ 12).

16
Wide was not involved in any decision regarding Paula, Joseph, or any of the three children. (Wide

Aff. ¶ 13).

10. November 5, 2013 Continued Initial Hearing

On November 5, 2013, the Continued Initial Hearing was held, at which Joseph appeared

with appointed counsel. (Ex. P - DCS000155-158). The Court ordered that Joseph “shall have

supervised visitation with the children. If the hospital requests that the visitation with B.L. be

terminated they may do so at that time.” (Ex. P - DCS000157, ¶ 14). The Court also ordered that

“[t]he children are currently in foster care and shall remain in said placement; DCS is given

responsibility for placement and care of the children.” (Ex. P - DCS000157, ¶ 13).

11. November 7, 2013 Family Team Meeting

On November 7, 2013, Joseph had a “Family Team Meeting” with DCS after the children

were placed in foster case, which included Nicole Markley and Tina Dingman. (Joseph Dep.

64:13-20; Markley Aff. ¶¶ 14-15, Ex. OO - DCS000114-119). Dingman felt that the meeting was

positive. (Dingman Aff. ¶ 7). Everyone seemed to be “on the same page and happy with the way the

case was proceeding.” Id. At the meeting, a plan was established. (Markley Aff. ¶¶ 14-15,

DCS000114-119).

12. Joseph’s Visitation with the Children

In the Detention/Initial Hearing Order, the Court did not authorize any visitation time

between Joseph and the children. (Paula Dep. 40:17-25; Ex. M - DCS000150). Paula understood

that, even though the Order of Protection was dismissed the same day by a different court, DCS was

still prevented from allowing Joseph to see the children because of the Detention/Initial Hearing

Order. Id.

17
On November 12, 2013, the Porter Juvenile Court filed its “Continued Initial Hearing

Order,” which was based on the Magistrate’s November 5, 2013 recommendation. (Ex. P -

DCS000155-158). In its order, the Porter Juvenile Court allowed Joseph to have supervised visits

with the children. (Ex. P - DCS000155-158; Joseph Dep. 52:9-17; Markley Aff. ¶ 12). Joseph was

allowed supervised visits with O.L. and T.L. twice a week for two hours through KidsPeace. (Joseph

Dep. 52:18-53:-4). KidsPeace is a mutual place for meeting with the foster parents. (Joseph Dep.

55:2-4). Parent-child visits are almost always supervised in the beginning if the parent has not seen

the child in a while, or if there are safety concerns. (Dingman Aff. ¶ 10). In those situations, DCS

wants a neutral third party to provide feedback on the interaction between the parent and the child.

Id. After repeatedly asking to visit B.L. in the hospital, Joseph was allowed an hour of supervised

visitation, two days before B.L. was released from the hospital. (Joseph Dep. 53-54). Once B.L. was

released from the hospital, he was placed in foster care with O.L. and T.L. (Joseph Dep. 54:14-15).

Joseph saw B.L. at two of the visits at KidsPeace. (Joseph Dep. 54:17-24).

13. Events Leading to Reunification

After B.L. was in the hospital, Joseph was still living at his parents’ house. (Joseph Dep.

59:3-6). When someone brings an issue about the non-offending parent to the attention of DCS, DCS

must still look into that issue. (Dingman Aff. ¶ 8); (Markley Aff. ¶ 16). If there is any type of

allegation of drug use, domestic issues, or anything that could jeopardize the safety of a child, the

FCM must look into that allegation—even if the allegation is made against the non-offending parent.

(Dingman Aff. ¶ 8); (Markley Aff. ¶ 16). In this case, there were allegations that Joseph had a

history of drug use. (Dingman Aff. ¶ 9). Specifically, Joseph had previously tested positive for THC.

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(Joseph Dep. 78-79:24-1). Even though he was the non-offending parent in this situation, DCS still

had to look into that allegation. (Dingman Aff. ¶ 9). 

That is why Joseph was required to take drug screens. Id. When the child visitation started,

DCS wanted Joseph to pass drug screens. (Joseph Dep. 63-64:22-4). Joseph testified that, if someone

had previously tested positive for THC, Joseph would want them to be drug screened. (Joseph Dep.

66:13-20). Joseph thought it was reasonable that DCS would want him to submit to a drug screen

before DCS placed the children back with him. (Joseph Dep. 67:3-8).

Joseph testified that he would not want DCS to place his children in a household where

someone had been disqualified on the basis of a background check. (Joseph Dep. 68:23-69:4,

72:1-3). Before the children were placed with Joseph, Joseph was living at his parent’s house, and

his parents did not pass their background checks. (Joseph Dep. 72:24-25, 73:8-14). When something

is brought to the attention of DCS about the people that the parent is living with, DCS must look into

that issue. (Markley Aff. ¶ 17). In this case, there had been an Order of Protection granted against

Joseph’s parents. (Markley Aff. ¶ 17). As a result, Markley did a background check on Joseph’s

mother Paula and Joseph’s father Joseph, Sr. (Markley Aff. ¶ 17). Joseph testified that he thinks it

is reasonable that DCS would want to verify that everyone in the household could pass a background

check. (Joseph Dep. 67:15-18, 67-68:1-3).

Joseph’s father’s background screen came back as “disqualified” on November 8, 2013.

(Joseph Dep. 68:11-19, 69:5-10; Ex. VV - DCS000178-179). Joseph’s father requested a waiver on

November 21, 2013. (Ex. WW -DCS000190). Joseph testified at his deposition that he would not

want DCS to place the children with someone who did not pass a background check, including his

father. (Joseph Dep. 72:1-13). Joseph’s mother’s finger-print based criminal history status was

19
“disqualified.” (Joseph Dep. 73:4-7; Paula Dep. 54-55:9-6; Ex. ZZ - DCS000206-208). Joseph’s

mother requested a waiver on November 21, 2013. (Joseph Dep. 73-74:21-1; Paula Dep.

57-58:17-11; Ex. AAA - DCS000221). On November 25, 2013, FCM Markley requested a waiver

for both of Joseph’s parents. (Ex. AAA - DCS000220; Markley Aff. ¶ 21). Markley supported the

waiver because the prior charges against them did not involve children, and the charges occurred

before either of them had children. Id. Markley’s supervisor, FCMS Tina Dingman, reviewed and

approved the waiver. Id.

On November 20, 2013, FCM Markley did a home inspection of Paula’s home, where Joseph

was living. (Markley Aff. ¶ 18). The house was small, but it was appropriate and there were no

concerns with the home. Id. On Tuesday, December 3, 2013, FCM Markley received notification

that a waiver was unnecessary. (Markley Aff. ¶ 22). After considering all of the evidence, including

the protective orders, the drug tests, the background checks, and the living situation, Markley

decided that the children could be placed back with their father and be in a safe environment. Id.

On December 5, 2013, a DCS attorney filed for a change in placement to have the children

placed with Joseph. (Ex. Q - DCS000160). On December 5, 2013, the Porter Juvenile Court

approved the change in placement. (Ex. Q - DCS000160; Markley Aff. ¶ 24). The children were

placed with Joseph on December 6, 2013. (Joseph Dep. 55:17-13, 74:2-4; Markley Aff. ¶ 25). On

January 27, 2014, the CHINS petition was dismissed. (Ex. R - DCS000167-169). In a January 8,

2014 letter, DCS notified Joseph that “the reasons for our involvement no longer pose a risk to the

children and that safety measures have been put in place to ensure the children remain safe in your

care.” (Ex. PP - DCS000122). On February 4, 2014, DCS filed a Motion for Change of Custody,

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requesting that the Porter Juvenile Court “change custody from joint legal and physical custody to

legal and physical custody with the father, Joseph Lozano.” (Pl. Ex. 9).

14. Defendant Louella F. Richey

Louella F. Richey is the DCS Local Office Director for Porter County. (Richey Aff. ¶ 3).

Joseph does not know who Louella Richey is and does not know what involvement she had in the

case. (Joseph Dep. 89:19-22). Richey’s only interaction with the Lozano family was a single phone

call related to Joseph wanting to visit B.L. in the hospital. (Richey Aff. ¶ 7). At that time, Richey

told Joseph that there was an Order of Protection in place and that she could not defy a court order.

Id.

15. Defendants Rachel Gibson, Terrace Ciboch, and Nathan Johnson

Rachel Gibson works for DCS. (Joseph Dep. 87:18-21). Joseph does not remember how

Rachel was involved in this case. (Joseph Dep. 87:22-88:4). Joseph does not know who Terrance

Ciboch is and did not talk to Ciboch. (Joseph Dep. 89-90:23-1, 90:2-5). Joseph does not know who

Nathan Johnson is and never talked to Johnson. (Joseph Dep. 90:6-9).

ANALYSIS

Defendants seek summary judgment on all of Plaintiffs’ claims. In response, Plaintiffs pursue

only certain of their federal constitutional claims, abandoning the remaining claims. The Court

considers each claim in turn.

A. Federal Claims – 42 U.S.C. § 1983

Plaintiffs bring their federal constitutional claims against Defendants 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

21
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 . . . .

42 U.S.C. § 1983. In the Complaint, Plaintiffs allege violations of their rights under the First, Fourth,

and Fourteenth Amendments to the United States Constitution as well as certain federal statutes.

Defendants seek summary judgment in their favor on all of the § 1983 claims.

1. Claims Against Defendants State of Indiana and Indiana Department of Child Services

Defendants State of Indiana and Indiana Department of Child Services seek summary

judgment on the § 1983 claims on the basis that they are not “persons” within the meaning of §

1983. Plaintiffs do not respond to this argument, abandoning their § 1983 claims against these

Defendants. Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003). The United States

Supreme Court has held that neither a State nor its officials acting in their official capacities is a

“person” under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Joseph

v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005). This prohibition includes

claims against state agencies. Ryan v. Ill. Dep’t of Children and Family Servs., 185 F.3d 751, 758

(7th Cir. 1999); see also East v. Lake Cnty. Sheriff Dep’t, No. 2:14-CV-58, 2015 WL 5286920, at

*5 (N.D. Ind. Sept. 9, 2015) (recognizing that DCS is a branch of the State of Indiana and, thus, is

not a “person” for purposes of § 1983). Thus, Defendants State of Indiana and Indiana Department

of Child Services are entitled to immunity under the Eleventh Amendment to the United States

Constitution for Plaintiffs’ § 1983 claims for money damages, and the Court grants summary

judgment in their favor on those claims.

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2. Claims Against Defendants Gibson, Ciboch, Johnson, Wide, and Richey

Claims brought under 42 U.S.C. § 1983 require a showing of personal involvement in the

alleged constitutional violation. Palmer, 327 F.3d at 594. Defendants Rachel Gibson, Terrance

Ciboch, and Nathan Johnson seek summary judgment in their favor on the § 1983 claims on the

basis that Plaintiffs have not shown that these individuals were involved in any of the claims.

Plaintiff Joseph Lozano, Jr. testified that he does not remember how Gibson was involved in the

case, that he does not know who Ciboch is but knows that he did not speak with him, and that he

does not know who Johnson is but knows that he did not speak with him.

Defendant James Wide, the Deputy Director of Communication for DCS, seeks summary

judgment in his favor because he had no role or involvement in the detention, retention, or

placement of the Lozano children and had no involvement in any decision regarding Paula Lozano,

Joseph Lozano, Jr., or Joseph’s three children.

Similarly, Louella F. Richey, the DCS Local Office Director for Porter County, seeks

summary judgment in her favor because Plaintiffs have not shown that she had any involvement,

other than in a supervisory role, which, by itself, is not a basis for § 1983 liability. See Palmer, 327

F.3d at 594. Richey’s only direct interaction with the Lozano family was a phone call to DCS by

Joseph, who wanted to visit B.L. at Riley Children’s Hospital. Richey told Joseph that there was an

Order of Protection in place and that she could not defy a court order.

Plaintiffs do not provide a response in support of their claims against any of these

Defendants. Thus, Plaintiffs have waived any argument and abandoned these claims. Palmer, 327

F.3d at 597-98. Finding that Plaintiff has not identified any personal involvement of these

defendants that would support a constitutional violation, the Court grants summary judgment in

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favor of Defendants Rachel Gibson, Terrance Ciboch, Nathan Johnson, James Wide, and Louella

F. Richey on all of Plaintiffs’ § 1983 claims.

3. Constitutional Claims Against Defendants Smith, Deardorff, Markley, and Dingman

a. Fourth Amendment right to be free from unreasonable seizure

In their Complaint, Plaintiffs allege a violation of their Fourth Amendment right to be free

from unreasonable seizure. (Cmplt. ¶ 16.c). As an initial matter, this claim, if otherwise supported

by evidence, can only proceed against Defendants Kathryn Deardorff and Shawna M. Smith,

because they were involved in the decision to detain the children on October 23, 2013; the remaining

individual Defendants Markley and Dingman were not. In addition, the claim can only be brought

by the Plaintiff children and not by Plaintiff Joseph Lozano, Jr. because Joseph was not seized; his

claim is properly analyzed under Fourteenth Amendment substantive due process, which is

addressed below. Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 480 (7th Cir. 2011); see also

Coley v. Abell, 682 F. App’x. 476, 478 (7th Cir. 2017).

The Fourth Amendment to the United States Constitution guarantees the “right of the people

to be secure in their persons, houses, papers, and effects against unreasonable searches and

seizures.” U.S. Const. amend. IV. The Fourth Amendment applies to DCS employees who perform

searches and seizures in connection with their investigations. Doe v. Heck, 327 F.3d 492, 509 (7th

Cir. 2003). A person is “seized” for purposes of the Fourth Amendment “if, in view of all the

circumstances surrounding the incident, a reasonable person would have believed that he was not

free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In this case, the Lozano

children were placed in foster care; the parties do not dispute that there was a seizure.

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But seizure alone is not a Fourth Amendment violation; the seizure must also be

unreasonable. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1010 (7th Cir. 2000) (quoting Donovan v.

City of Milwaukee, 17 F.3d 944, 949 (7th Cir. 1994)). “The test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical application, and its proper application

requires careful attention to the facts and circumstances of each particular case.” Id. (internal

quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

“In the context of removing a child from his home and family, a seizure is reasonable if it

is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent

circumstances, meaning that the state officers have reason to believe that life or limb is in immediate

jeopardy.” Id.(emphasis added) (internal quotation marks omitted) (quoting Tenenbaum v. Williams,

193 F.3d 581, 605 (2d Cir. 1999)); see also Xiong v. Wagner, 700 F.3d 282, 291 (7th Cir. 2012)

(quoting Hernandez, 657 F.3d at 474). The probable cause analysis is an objective one. Siliven v.

Ind. Dep’t of Child Servs., 635 F.3d 921, 927 (7th Cir. 2011). The case managers’ “subjective beliefs

are largely irrelevant to the probable cause inquiry.” Id. The court’s “focus is on the facts and

circumstances known to defendants at the time they decided to remove [the child], and whether a

prudent caseworker (meaning one of reasonable caution) could have believed that [the child] faced

an immediate threat of abuse based on those facts.” Id. 

In the motion for summary judgment, Defendants argue that there was probable cause to

remove the children from Elizabeth’s custody based on the circumstances of the physical injuries

suffered by B.L. However, Defendants do not argue that there was probable cause to keep the

children from Joseph. In response, Plaintiffs argue that the Lozano children’s constitutional rights

were violated on October 23, 2013, when FCM Deardorff seized them from their father, Joseph,

25
against whom there had never been any allegation of abuse and who did not pose an immediate

threat. Plaintiffs do not contest the seizure of the children from Elizabeth, noting that the available

evidence was that Elizabeth had abused them.

In their reply, Defendants argue, without citation to law, that the Lozano children were not

seized from Joseph because the children were not living with him, because he had not had contact

with them due to the practical consequences of the Order of Protection that prohibited him from

contacting Elizabeth, and because he believed that he was prevented from having contact with them.

However, as discussed in more detail below, the Order of Protection did not in fact prevent Joseph

from having contact with the children, and there is no evidence or argument before this Court that

Joseph was not a custodial parent. The February 4, 2014 DCS Motion for Change of Custody

indicates that Elizabeth and Joseph had joint legal and physical custody. Joseph and Elizabeth were

still married, and there was no marriage dissolution proceeding in place at the time. Nor does the

fact that Joseph could not contact Elizabeth pursuant to the Order of Protection, which, as a practical

matter, meant that he was effectively prohibited from being with the children most of the time,

change the possibility that he was still a custodial parent whose right to contact his children had not

been revoked. Defendants cite no case law under these circumstances to support the claim that the

children were not seized from Joseph. This argument is also disingenuous, given that Deardorff

completed two separate “Taking Custody of a Child Without a Verbal or Written Court Order:

Description of Circumstances” forms: one as to Elizabeth, see (Ex. QQ), and one as to Joseph, see

(Ex. RR).

At the time the children were taken into custody by DCS on October 23, 2013, there was not

a court order in place regarding their detention; therefore, their removal had to be justified by

26
probable cause or exigent circumstances. Plaintiffs contend that, while it may have been reasonable

to seize the children from Elizabeth, the DCS employees had no probable cause to keep them from

their father Joseph because there was no evidence that Joseph posed any threat to them. Again, there

is no evidence before the Court of any allegations of abuse against Joseph or allegations that Joseph

had threatened to harm the children. Plaintiffs argue that Defendants have not identified any

evidence that a DCS employee could have relied upon to support a finding of probable cause on

October 23, 2013, based on the children facing an immediate threat of harm from Joseph. Plaintiffs

note that Joseph and has family had previously contacted DCS asking them to check on the children

whom they believed had been showing signs of abuse while in Elizabeth’s care, demonstrating their

concern for the children’s safety.

In reply, Defendants point to the September 24, 2013 Order of Protection issued one month

earlier by the Porter Superior Court in favor Petitioner Elizabeth against Respondent Joseph, which

ordered:

1. The Respondent is hereby enjoined from threatening to commit or

committing acts of domestic or family violence, stalking, or a sex offense

against the Petitioner and the following designated family or household

members, if any:

[B.L.; O.L.; T.L.];

2. The Respondent is prohibited from harassing, annoying, telephoning,

contacting or directly or indirectly communicating with the Petitioner,

except: PARENTING TIME ORDERED BY ANY COURT IN A

DISSOLUTION OF MARRIAGE ACTION.

3. N/A

4. The Respondent is ordered to stay away from the residence,

x school, and/or x place of employment 

27
of the Petitioner. The Respondent is further ordered to stay away from the

following place(s) that is/are frequented by the Petitioner and/or Petitioner’s

family or household members;

_____________.

5. N/A

6. N/A

7. N/A 

THIS EX PARTE ORDER FOR PROTECTION EXPIRES

ON THE 24TH DAY OF SEPTEMBER, 2015.

Date: 9/24/2013

(Ex. G). Without citation to law or any supporting evidence, Defendants argue that “[i]t is insincere

to claim that Defendants Deardorff and Smith would not look at that order and believe there [was]

justification to keep the children from Joseph.” (ECF 50). The Court disagrees. Viewing the facts

of record in the light most favorable to Plaintiffs, Deardorff and Smith had previous interaction with

Elizabeth and the children and would have known that there were no allegations of violence or threat

of violence by Joseph or any reason to suspect that Joseph would harm the children. In addition,

Deardorff and Smith were Family Case Managers presumably with a working familiarity with the

various orders issued by courts and the difference between an Order of Protection and a No Contact

Order. The Order of Protection itself did not prevent Joseph from having contact with the children

or from being with the children. Although there was significant evidence on October 24, 2013, that

B.L. was being abused by someone, none of that evidence indicated that it was Joseph, and

Defendants do not argue otherwise.

In the form titled “Taking Custody of a Child without a Verbal or Written Court Order:

Description of Circumstances” that was completed as to Joseph, Deardorff selected two pre-printed

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facts establishing probable cause: “the child’s physical or mental condition is seriously impaired or

seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian,

or custodian to supply the child with necessary food, clothing, shelter, medical care, education or

supervision” and “ the child’s physical or mental health is seriously endangered due to injury by the

act or omission of the child’s parent, guardian, or custodian.” (Ex. RR). In the next section

requesting a brief description of the circumstances in which the child was found that warranted the

selection of those two categories, Deardorff wrote: “B.L. presented at the hospital with severe

injuries due to child abuse.” Id. These facts, while applicable to the form completed as to Elizabeth,

are not relevant to Joseph. In other words, the form completed as to Joseph does not explain why

the children were in danger from Joseph or give a factual basis for keeping them from him.

And, nowhere in Deardorff’s October 23, 2013 “Intake Officer’s Report of Preliminary

Inquiry and Investigation” (“Intake Officer’s Report”) is there any representation that Joseph was

a danger to the children. See (Ex. SS). None of the five paragraphs of facts supporting probable

cause mention Joseph. The Intake Officer’s Report lists Elizabeth as the children’s mother and

married but separated and lists Joseph as the children’s father and married but separated. For each

child, the form lists “legal custody” with Elizabeth as “(Mother - Physical Custody)”. Under the

heading “Reasonable Efforts/Best Interests,” Deardorff incorrectly states that “there is currently a

no contact order in place between father and his family, regarding mother and all of the children.”

(Ex. SS - DCS000143) (emphasis added). And, in the subsequent “Recommendation and

Reasoning,” Deardorff recommended, “Due to a current no contact order between father and the

children, visitation not be granted to father.” Id. (emphasis added). Defendants do not make any

29
other legal or factual arguments that would have been a basis known to Deardorff at the time for not

placing the children with Joseph on October 23, 2013.

The Court recognizes that Joseph himself testified at his deposition that he believed he was

prevented from seeing the children based on the Order of Protection. However, when the facts

available to the Court on this Motion for Summary Judgment are viewed in the light most favorable

to Plaintiffs, based on the plain language of the Order of Protection and the lack of any evidence that

Joseph was a threat to the children, a jury could find that a prudent case manager, using reasonable

caution, would not have believed that the children faced an imminent threat of danger from Joseph.3

In their Motion for Summary Judgment, Defendants argue that they are entitled to qualified

immunity on the removal of the children from Elizabeth; however, they do not assert qualified

immunity based on the decision to remove the children from Joseph. Qualified immunity shields

“government actors from liability for civil damages where their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have been aware.”

Siliven, 645 F.3d at 925 (citing Pearson v. Callahan, 555 U.S. 223, 230 (2009)). The Fourth

Amendment right regarding the removal of children from their home and family was clearly

established at the time of these events, and there is a genuine issue of material fact as to whether the

3

 In support of their Fourth Amendment argument, Plaintiffs also cite Brokaw for its correct statement of the

law that, even if a court order directed the child’s removal or if exigent circumstances or probable cause justified the

removal, “the manner in which the defendants seized [the child] may still make his seizure unreasonable.” (ECF 47, p.

11 (citing Brokaw v. Mercer Cnty., 235 F.3d 1000, 1011-12 (7th Cir. 2000)). But this analysis in Brokaw concerned the

physical circumstances of the removal itself. In Brokaw, the defendants were dressed in plain clothes, drove an unmarked

car, entered the home in the evening without knocking or identifying themselves, and refused to identify themselves

when asked to do so. Id. at 1012. They also “abruptly removed the screaming children from the home without

explanation. In effect they acted like kidnappers rather than law enforcement officers.” Id. 

There are no allegations in this case that the manner in which the Lozano children were removed was a Fourth

Amendment violation. Instead, Plaintiffs’ factual analysis in this section of the brief is based on the alleged

misrepresentations of fact by Deardorff to the Porter Juvenile Court in relation to the October 24, 2013 hearing and

resulting Detention/Initial Hearing Order. These misrepresentations are considered in the context of the Fourteenth

Amendment procedural due process claim, addressed below. See Brokaw, 235 F.3d at 1020.

30
conduct of Defendants Smith and Deardorff violated that clearly established right when they

removed the children from Joseph. Accordingly, they are not entitled to qualified immunity on this

claim. The Court further notes that Defendants’ separate argument for quasi-judicial immunity is

based on the Porter Juvenile Court’s October 24, 2013 Detention/Initial Hearing Order and, thus,

is not applicable to the initial October 23, 2013 detention without a court order.

 The Court denies the Motion for Summary Judgment on the children’s Fourth Amendment

claims against Defendants Shawna M. Smith and Kathryn Deardorff based on the children’s October

23, 2013 removal and placement in foster care rather than with Joseph. The Court grants summary

judgment in favor of all other defendants on this claim.

b. Joseph’s substantive due process rights - right to familial relations

A parent’s interest in the care and custody of his children is subject to the protection of the

Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). And a forced separation

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

Joseph’s substantive due process claim is properly analyzed under the Fourteenth Amendment based

on a fundamental right to familial relations. Xiong, 700 F.3d at 291; Hernandez, 657 F.3d at 480

(“[The child’s parents] were not seized; their continued withholding claims are properly analyzed

under substantive due process.”).

This right is not absolute, but must be balanced against the state’s interest in

protecting children from abuse. To achieve the proper balance, caseworkers must

have some definite and articulable evidence giving rise to a reasonable suspicion of

past or imminent danger of abuse before they may take a child into protective

custody. A reasonable suspicion requires more than a hunch but less than probable

cause.

Hernandez, 657 F.3d at 478 (internal quotation marks omitted) (quoting Siliven, 635 F.3d at 928).

31
Defendants only move for summary judgment on the continuing separation of Joseph and

his children; Defendants do not address the initial removal of the children on October 23, 2013

without a court order. Joseph’s substantive due process claim based on the children’s initial removal

“stand[s] or fall[s] with [the child’s] Fourth Amendment claim premised on his removal.” Xiong, 700

F.3d at 291 (quoting Hernandez, 657 F.3d at 478); see also VanWinkle on behalf of MV v. Nichols,

No. 1:15-CV-1082, 2017 WL 4224767, at *19 (S.D. Ind. Sept. 22, 2017). As with the children’s

Fourth Amendment claims related to their initial detention, genuine issues of material fact exist as

to whether a prudent case worker would have a reasonable suspicion that the children faced an

immediate threat of abuse from Joseph; there is no evidence that they had a reasonable suspicion of

past abuse from Joseph. Thus, the Court denies summary judgment on Joseph’s substantive due

process claim based on the initial detention by Smith and Deardorff.4

 For the same reasons set forth

in the previous section, Smith and Deardorff are not entitled to qualified immunity on this claim.

As for Joseph’s continuing separation from the children once they were detained, Defendants

argue, without citation to law, that Plaintiffs are challenging a single seizure, not two separate

seizures. However, this argument overlooks the court’s recognition in Hernandez that the court in

both Brokaw and Siliven addressed a claim based on an ongoing separation under substantive due

process distinct from the analysis of the initial seizure under the Fourth Amendment. See Hernandez,

657 F.3d at 479 (citing Brokaw, 235 F.3d at1018-19; Siliven, 635 F.3d at 928). Thus, Joseph’s claim

based on the ongoing separation is properly analyzed as a violation of substantive due process under

the Fourteenth Amendment.

4

 Although the parties do not clarify against which defendants this claim is brought, based on the arguments

in the Fourth Amendment context, it appears that Smith and Deardorff are the proper defendants.

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Defendants also seek summary judgment on the continuing separation claim on the basis that

FCM Nicole Markley was bound by the Porter Juvenile Court’s October 24, 2013 Detention/Initial

Hearing Order. Defendants assert that the only proper Defendants to this claim are FCM Nicole

Markely and FCMS Dingman (who supervised and approved Markley’s actions and reports) in their

individual capacities, and Plaintiffs’ response brief addresses this claim only as to Markely and

Dingman. Markley was prohibited by the Porter Juvenile Court’s October 24, 2013 Detention/Initial

Hearing Order from authorizing visitation between Joseph and the children. (Ex. M - DCS000149).

Thus, Markley had more than reasonable suspicion to continue to keep them apart. As quoted above,

the October 24, 2013 Detention/Initial Hearing Order from the Porter Juvenile Court specifically

stated: “The Court finds there is currently a protective order in place between father and the

children, and that there is the potential for a No Contact Order between mother and the children, and

therefore does not authorize either mother or father visitation with the children at this time.” (Ex.

M, p. 2- DCS 00015) (emphasis added). Then, on November 12, 2013, the Porter Juvenile Court

issued a “Continued Initial Hearing Order,” in which the court allowed Joseph to have supervised

visits with the children but did not place the children with Joseph. (Ex. O - DCS000155-158). 

Plaintiffs offer no response to this argument. Instead, Plaintiffs argue that there are issues

of fact about whether Markley and Dingman had reasonable suspicion to keep Joseph and the

children apart based on the earlier September 24, 2013 Porter Superior Court Order of Protection;

but, unlike the initial detention, the Order of Protection is not the factual basis for the continuing

separation. And, Plaintiffs offer no explanation as to why Markely and Dingman could have defied

the Porter Juvenile Court’s October 24, 2013 Detention/Initial Hearing Order or what they should

have done differently in light of the Detention/Initial Hearing Order. In fact, Plaintiffs do not even

33
address Markely and Dingman’s reliance on the October 24, 2013 Detention/Initial Hearing Order.

Defendants argue that, on this basis, Markely and Dingman are entitled to qualified immunity. The

Court agrees. Although the law regarding a substantive due process claim for the detention of a child

was generally established by the time of the fall of 2013, the Court finds that the right was not

clearly established based on the circumstances presented in this case. See VanWinkle, 2017 WL

4224767, at *20 (finding that the substantive due process claim as it related to the time period after

the June 19, 2013 court order was obtained was not clearly established because a reasonable officer

might not have known that the conduct at issue was unlawful). The Court finds that Markley and

Dingman are entitled to qualified immunity on Joseph’s substantive due process claims based on his

continuing separation from his children because Plaintiffs have not identified any cases (within or

outside of the Seventh Circuit Court of Appeals) discussing the implications of a court’s order that

the children be detained and whether such an order protects a family case manager like Markley and

a supervisor like Dingman from liability under § 1983. Id.

5

To the extent that Plaintiffs are arguing that Markely and/or Dingman should have done

something different after the Porter Juvenile Court Detention/Initial Hearing Order was entered,

Plaintiffs do not identify what should have been done differently. In contrast, Defendants argue that,

based on the circumstances at that point, Markely and Dingman had reasonable suspicion that

supported each step they took to get Joseph reunited with his children. For example, Joseph was

living at his parents at the time he sought to be reunited with his children, the parents did not initially

pass their background checks, Markely requested a wavier for the parents on November 25, 2013,

5

 Because Defendants Markely and Dingman are entitled to qualified immunity and because this claim does not

survive against any other defendants, it is unnecessary for the Court to consider Defendants’ assertion of quasi-judicial

immunity as to this claim.

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Dingman approved the waiver, and on December 5, 2013, the DCS attorney filed for a change in

placement to have the children placed with Joseph.

 Accordingly, the Court grants summary judgment in favor of Defendants Markely and

Dingman on Joseph’s Fourteenth Amendment substantive due process claims based on the

continuing separation from his children and grants summary judgment in favor of all the remaining

defendants on this claim as well.6

c. Children’s substantive due process rights

A child cannot maintain a substantive due process claim based on his or her initial removal

because the Fourth Amendment addresses that seizure. Hernandez, 657 F.3d at 474 (“Substantive

due process may not be called upon when a specific constitutional provision (here, the Fourth

Amendment) protects the right allegedly infringed upon.” (quoting Doe v. Heck, 327 F.3d 492, 518

n.23 (7th Cir. 2003))); see also Brokaw, 235 F.3d at 1017-18; VanWinkle, 2017 WL 4224767, at

*18. In other words, “if a plaintiff’s sole purpose in bringing a familial relations claim is to recover

damages for a physical seizure, then that claim is more appropriately analyzed under the Fourth

Amendment. On the other hand, if, . . . a familial relations claim specifically alleges that the

government’s physical seizure coincided with other conduct amounting to an interference with the

parent-child relationship, the plaintiff may also maintain a substantive due process claim.”

Hernandez, 657 F.3d at 479-80 (internal quotation marks omitted) (quoting Heck, 327 F.3d at 518

n. 23). 

6

 In the context of the substantive due process claim, Plaintiffs also argue that Deardoff made misrepresentations

that led to the entry of the Porter Juvenile Court’s October 24, 2013 Detention/Initial Hearing Order. However, these

allegations are properly analyzed under the procedural due process claim below.

35
However, the children’s allegations that their right to familial relations was violated by the

ongoing separation from their father in the weeks following the October 24, 2013 Detention/Initial

Hearing Order is properly analyzed as a Fourteenth Amendment substantive due process claim. See

Brokaw, 235 F.3d at 1018-19 (“Equally fundamental is the substantive due process right of a child

to be raised and nurtured by his parents.” (citing Santosky v. Kramer, 455 U.S. 745, 760 (1982));

but see Xiong, 700 F.3d 282 (analyzing the children’s ongoing detention claim between the time of

the initial seizure and the court hearing two days later under the Fourth Amendment framework

(citing Herandez, 657 F.3d at 480)). Like their Fourth Amendment rights, the children’s

constitutional right to family integrity is not absolute and must be balanced against the state’s

interest in protecting children from abuse. Brokaw, 235 F.3d at 1019. “In balancing these competing

interests, courts have recognized that a state has no interest in protecting children from their parents

unless it has some definite and articulable evidence giving rise to a reasonable suspicion that a child

has been abused or is in imminent danger of abuse.” Id. (citing Croft, 103 F.3d at 1126).

Nevertheless, the children’s substantive due process claim based on their continued

separation from Joseph fails for the same reason that Joseph’s claim fails—Defendants Markley and

Dingman are entitled to qualified immunity because they were acting pursuant to the Porter Juvenile

Court’s October 24, 2013 Detention/Initial Hearing Order and because Plaintiffs have not identified

any steps Markley and Dingman should have taken under the circumstances in their efforts to

ultimately reunite Joseph and his children on December 5, 2013. Therefore, the Court grants

summary judgment in favor of all Defendants on the children’s substantive due process claims.

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d. Procedural due process rights - Joseph and the children

The Fourteenth Amendment Due Process Clause provides: “No State shall . . . deprive any

person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1. Under

42 U.S.C. § 1983, an individual may bring a claim against a person acting under the color of state

law for a violation of this constitutional right. Colbert v. City of Chicago, 851 F.3d 649, 656 (7th

Cir. 2017). A procedural due process claim requires a “two-part analysis: First, we determine

whether the defendants deprived the plaintiff of a protected liberty or property interest, and if so,

then we assess what process was due.” Brokaw, 235 F.3d at 1020 (citing Hamlin v. Vaudenberg, 95

F.3d 580, 584 (7th Cir. 1996)).

The protected liberty interest Plaintiffs were deprived of is that of familial relations. See

Brokaw, 235 F.3d at 1020. As for the process that was due, the United States Supreme Court held

that parental rights cannot be denied without an “opportunity for them to be heard at a meaningful

time and in a meaningful manner.” Brokaw, 235 F.3d at 1020 (quoting Mathews v. Eldridge, 424

U.S. 319, 333 (1976)). The amount of process due varies with the particular situation. Id. (citing

Mathews, 424 U.S. at 334). “However, no matter how much process is required, at a minimum it

requires that government officials not misrepresent the facts in order to obtain the removal of a child

from his parents.” Brokaw, 235 F.3d at 1020 (citing Malik v. Arapahoe Cnty. Dep’t of Soc. Servs.,

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

In the Motion for Summary Judgment, Defendants argue that the October 24, 2013 postdeprivation hearing the day after the children’s detention was more than adequate to satisfy the

requirements of procedural due process. However, Plaintiffs argue in several places in their response

brief that there is a genuine issue of material fact as to whether FCM Deardorff misrepresented facts

37
to the Porter Juvenile Court and the extent to which the Porter Juvenile Court’s October 24, 2013

Detention/Initial Hearing Order denying Joseph custody and/or visitation was based on the

misrepresented facts.7

In support, Plaintiffs first point to the Verified Petition Alleging Children in Need of

Services, filed by DCS on October 24, 2013, which provides: “The father of the children does not

have legal custody and the Porter Superior Court issued an Order of Protection on September 26,

2013, which prohibits him from having contact with the children due to issues of domestic violence.

The Order is in effect until September 24, 2015.” (Ex. L - DCS000146, ¶ 6(5)). However, this

Petition was completed by DCS attorney Julie Carter, who is not a defendant in this case. It is

unclear where Carter obtained this information; although, it is possible that she obtained it from

Deardorff’s October 23, 2013 Intake Officer’s Report. (Ex. SS). Plaintiffs assert that the earlierdated Intake Officer’s Report “repeats the falsehood that Joseph was under a no contact order and

that he did not have legal custody.” (ECF 47, p. 12). As noted above, the Intake Officer’s Report

lists only Elizabeth as having “legal custody” and also three times states that there a “no contact

order in place” between Joseph and the children. (Ex. SS, p. 7 - DCS000143). 

Plaintiffs argue that Joseph had legal custody of his children, that he and Elizabeth were

married at the time, and that no court had entered an order taking away Joseph’s legitimate legal

custody of his children. Thus, the statement in the Verified Petition that “the father does not have

legal custody” is a material misrepresentation if it influenced the court’s detention decision. 

7

 In their reply brief, Defendants address these misrepresentations by Deardorff in the context of Plaintiffs’

Fourth Amendment claims. However, these claims are properly addressed in the context of the Fourteenth Amendment

procedural due process claim.

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Plaintiffs also argue that the description of the Porter Superior Court’s September 24, 2013

Order of Protection as a “no contact order” in Deardorff’s Intake Officer’s Report and in Carter’s

Verified Petition were material misrepresentations as to the nature of the September 24, 2013 Order

of Protection. Plaintiffs are correct that there is a difference between a “no contact order” issued by

the juvenile court based on a petition filed under Indiana Code § 31-34-25-1 and an ex parte “order

of protection” issued by a superior court pursuant to Indiana Code § 34-26-5-9. (ECF 47, pp. 12-13).

Although attorney Carter’s Verified Petition properly named the order as an “Order of Protection,”

it incorrectly represented that the order prevented Joseph from having contact with his children and

that the prohibition was because of issues of domestic violence. The September 26, 2013 Order of

Protection enjoined Joseph “from threatening to commit or committing acts of domestic or family

violence, stalking, or a sex offense against the Petitioner and the following family or household

member, if any: O.L., B.L., T.L.” (Ex. G). It further states: “Respondent is prohibited from

harassing, annoying, telephoning, contacting or directly or indirectly communicating with the

Petitioner, except: parenting time ordered by any court in dissolution of marriage action.” Id.

Plaintiffs reason that, although there was no dissolution matter pending, the fact that the Porter

Superior Court contemplated a parenting time order evidences the intention of the Porter Superior

Court that Joseph be permitted to continue parenting his children.

Defendants are correct that the Porter Juvenile Court’s October 24, 2013 Order, issued the

day after the children were detained, did not make a finding that Joseph did not have custody or that

there was a “No Contact Order” against Joseph, as the order provided: “The Court finds there is

currently a protective order in place between father and the children, and that there is the potential

for a No Contact Order between mother and the children, and therefore does not authorize either

39
mother or father visitation with the children at this time.” (Ex. M, p. 2- DCS 00015). However, this

decision was based on the representations made in the documents filed with the Porter Juvenile

Court and made in open court. The fact that the order did not explicitly state that Joseph did not have

custody does not mean that the court did consider the representations in deciding not to allow him

visitation.

Also, at the hearing in open court before the Porter Juvenile Court on October 24, 2013,

Elizabeth requested dismissal of the Porter Superior Court’s September 24, 2013 Order of

Protection. (ECF 48-1, p. 10 (Pl. Ex. 2)).8 And, the Porter Superior Court Order dated October 24,

2013 dismissing its Order of Protection is based on that oral motion by Elizabeth in the Porter

Juvenile Court: “Petitioner has requested dismissal under oath and on the record in Porter Juvenile

Court in a CHINS hearing under cause numbers 64C01-1310-JC-1027, 1028, 1029.” Id. There is no

record before this Court of what representations were made verbally to the Porter Juvenile Court that

date. However, the Assessment of Alleged Child Abuse or Neglect completed by Deardorff provides

that DCS requested at the Porter Juvenile Court hearing on October 24, 2013, that the children

remain in the foster home “due to a current no contact order between father and the children,

visitation not be granted to father” and also that a “no contact order was dropped that mom took out

against dad and all paternal relatives on this day per mom’s request.” (ECF 39-24, p. 15 (Ex. X -

DCS 000030)). Although it appears that the Porter Juvenile Court’s Detention/Initial Hearing Order

was issued before the Porter Superior Court’s order dismissing the September 24, 2013 Order of

8

 In their reply brief, Defendants assert that the “juvenile court was not presented with evidence that the order

was dropped until four days after the hearing.” (ECF 50, p. 7). While the Porter Juvenile Court may not have received

the Porter Superior Court’s order dismissing the Order of Protection until a later date, the evidence of record shows that

Elizabeth made the request to have that Order of Protection dismissed in open court before the Porter Juvenile Court

and in front of the DCS representatives present.

40
Protection, it appears that DCS requested at the juvenile court hearing that the children be kept from

Joseph based on the Order of Protection even though at the very same hearing Elizabeth requested

dismissal of the same Order of Protection. 

This Court recognizes that the Porter Juvenile Court was not in a position to dismiss the

Porter Superior Court’s Order of Protection; nevertheless, the nature of the representations by

Deardorff to the juvenile court to keep the children in foster care are concerning. The Court finds

that, based on this evidence, there is a genuine issue of fact as to whether Deardorff made material

misrepresentations to the juvenile court that led the court to keep the children in foster care rather

than placing them with Joseph. The Court denies summary judgment on the Fourteenth Amendment

procedural due process claim against Defendant Kathryn Deardorff but grants summary judgment

on this claim as to all other Defendants.

e. Right to petition the government 

The First Amendment provides a right to petition the government for redress of grievances.

U.S. Const. amend. 1. “‘The law is settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions . . . for speaking out.’”

Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012) (quoting Hartman v. Moore, 547 U.S. 250,

256 (2006)). To make out a prima facie case of First Amendment retaliation, Plaintiffs must show

that (1) they engaged in activity protected by the First Amendment; (2) they suffered a deprivation

that would likely deter First Amendment activity; and (3) the First Amendment activity was at least

a motivating factor in DCS’s decision. Id. Once a plaintiff makes out a prima facie case, the burden

shifts to the defendant to show that the harm would have occurred without the First Amendment

41
activity. Id. at 251-52 (citing Spiegla v. Hull, 371 F.3d 928, 941-43 (7th Cir. 2004); Brown v. Cnty.

of Cook, 661 F.3d 333, 335 (7th Cir. 2011)).

In their Complaint, Plaintiffs allege a violation of their First Amendment right to petition the

government. In their response brief, Plaintiffs clarify that DCS retaliated against the Lozanos for

making repeated reports to DCS by keeping the children from Joseph. Defendants seek summary

judgment on this claim on the basis that they have shown that the children would have not have been

placed with Joseph even if the Lozanos had not made complaints about Elizabeth to DCS. 

As for their prima facie case, Plaintiffs have established the first two prongs. Joseph and his

family engaged in protected speech by filing a complaint with DCS about Elizabeth, and Joseph’s

children were not placed with him when they were removed from Elizabeth’s care on October 23,

2013. 

As for causation, Plaintiffs cite Joseph’s testimony that, on October 3, 2013, when Joseph

met with FCM Smith at the DCS offices, Smith told Joseph to have his friends and family stop

calling about child abuse. (Joseph Dep. 88:5-13; 88:21-89:4). Although Smith denies making this

statement, for purposes of summary judgment, the Court views this fact in the light most favorable

to Plaintiffs and considers Joseph’s testimony. Nevertheless, the Court finds that this statement by

Smith is insufficient to establish causation. First, the statement was allegedly made on October 3,

2013, and DCS continued to investigate the complaints made against Elizabeth on October 10, 2013,

and October 15, 2013, ultimately removing the children from Elizabeth and taking them into custody

on October 23, 2013. Second, the statement was made by Smith; FCM Deardorff took the children

into custody on October 23, 2013, and FCM Markley was initially responsible for placing the

children. There is no evidence that Smith communicated a similar statement or sentiment to

42
Deardorff or Markley. Thus, Plaintiffs have not presented evidence that the reports to DCS were a

motivating factor in the decision not to place the children with Joseph on October 23, 2013.

Moreover, even if the statement by Smith could be considered as a motivation for Deardorff

and Markley’s actions, Defendants have shown that they would have reached the same result even

without the protected speech, and Plaintiffs offer no argument in opposition, waiving any such

argument. Deardorff’s recommendation that the children be taken into custody was based on the

September 24, 2013 Order of Protection, which was issued by the Porter Superior Court prior to the

October 3, 2013 statement by Smith. Although Plaintiffs argue in relation to the Fourth and

Fourteenth Amendment claims that Deardorff should not have relied on the September 24, 2013

Order of Protection to detain the children, Plaintiffs neither argue nor offer evidence that Deardorff

did not actually rely on the September 24, 2013 Order of Protection or that her reliance was a pretext

for retaliation. As discussed above, once the Porter Juvenile Court issued its order on October 24,

2013, Markely and Dingman took reasonable steps to reunite the children and Joseph by December

5, 2013, steps which Plaintiff have not shown were unreasonable. No reasonable jury could conclude

that Defendants retaliated against Plaintiffs for the exercise of First Amendment rights, and the

Court grants summary judgment in favor of all Defendants on this claim.

f. Equal protection

In their Complaint, Plaintiffs allege a deprivation of equal protection rights by Defendants

“failing to comply with applicable state and federal statutes and regulations designed to balance the

need to protect neglected and abused children against the constitutional rights of parents to raise

their children and the children’s rights to be with their parents.” (ECF 4, ¶ 16(d)). In the Motion for

Summary Judgment, Defendants argue that Plaintiffs do not identify any type of protected class. See

43
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.”).

Plaintiffs offer no response in support of this claim, abandoning it. Accordingly, the Court grants

summary judgment in favor of Defendants on Plaintiffs’ Equal Protection claim.

g. Due process claims based on statutes and regulations

In the Complaint, Plaintiffs allege a deprivation of “due process rights by failing to comply

with applicable state and federal statutes and regulations designed to balance the need to protect

neglected and abused children against the constitutional rights of parents to raise their children and

the children’s rights to be with their parents.” (ECF 4, ¶ 16(d)). First, a violation of a state statute

does not give rise to a claim under § 1983. See Armstrong v. Daily, 786 F.3d 529, 542 (7th Cir.

2014). Second, Plaintiffs do not offer any support in their Complaint for their allegations that

Defendants violated unnamed federal statutes and regulations or the statutes listed in the

Complaint—41 U.S.C. § 5106, 42 U.S.C. § 671(a)(15), 45 C.F.R. § 1356.21, 42 U.S.C. § 675(1)(A),

and 42 U.S.C. § 675(5). And, Plaintiffs offer no response in support of these claims, waiving a

response and abandoning the claims. The Court grants summary judgment in favor of Defendants

on Plaintiffs’ Due Process claims related to statutes or regulations.

B. State Law Claims

Defendants move for summary judgment on all of Plaintiffs’ state law claims. First,

Defendants argue that the individually-named Defendants are immune under the Indiana Tort Claims

Act for any and all actions taken or inaction in relation to the events underlying this lawsuit. Under

the Indiana Tort Claims Act, there is no remedy against an individual employee so long as the

44
employee was acting within the scope of employment. Ball v. City of Indianapolis, 760 F.3d 636,

645 (7th Cir. 2014) (citing Ind. Code § 34-13-3-5(b); Julian v. Hanna, 732 F.3d 842, 848-49 (7th

Cir. 2013)). In their response brief, Plaintiffs agree. The Court grants summary judgment in favor

of the individual defendants on all of Plaintiffs’ state law claims. Second, as for Defendants State

of Indiana and Indiana Department of Child Services, Defendants assert several bases for finding

that they are not liable for the state law claims. Plaintiffs offer no substantive response in support

of the claims, and, in fact, concede all of Defendants’ arguments on the state law claims. Therefore,

the Court grants summary judgment in favor of Defendants State of Indiana and DCS on Plaintiffs’

state law claims as well.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the

Motion for Summary Judgment [DE 38]:

The Court GRANTS summary judgment in favor of Defendants Rachel Gibson, Terrance

Ciboch, Nathan Johnson, James Wide, and Louella F. Richey on all claims (federal and state law

claims).

The Court GRANTS summary judgment in favor of all Defendants on all of Plaintiffs’ state

law claims.

The Court GRANTS summary judgment in favor of Defendants Indiana Department of

Child Services and State of Indiana on all § 1983 claims.

The Court GRANTS summary judgment in favor of all Defendants on the § 1983 Fourteenth

Amendment equal protection claims and § 1983 Fourteenth Amendment due process claims based

on federal or state statutes.

45
The Court DENIES summary judgment on the § 1983 Fourth Amendment claim against

Defendants Shawna M. Smith and Kathryn Deardorff based on the children’s October 23, 2013

initial removal and placement in foster care rather than with Joseph, but GRANTS summary

judgment on the Fourth Amendment claims against all other Defendants. 

The Court DENIES summary judgment on Joseph’s § 1983 Fourteenth Amendment

substantive due process claim against Defendants Shawna M. Smith and Kathryn Deardorff based

on the children’s October 23, 2013 initial removal, but GRANTS summary judgment in favor of all

Defendants on Joseph’s § 1983 Fourteenth Amendment substantive due process claims based on the

ongoing separation from his children.

The Court GRANTS summary judgment in favor of all Defendants on the children’s § 1983

Fourteenth Amendment substantive due process claims.

The Court DENIES summary judgment on the § 1983 Fourteenth Amendment Procedural

Due Process claim against Defendant Kathryn Deardorff, but GRANTS summary judgment in favor

of all other Defendants on this claim.

Therefore, the case will proceed to trial on (1) Plaintiffs B.L., O.L, and T.L.’s § 1983 Fourth

Amendment claim against Defendants Shawna M. Smith and Kathryn Deardorff based on their

initial removal on October 23, 2013; (2) Plaintiff Joseph Lozano’s § 1983 Fourteenth Amendment

substantive due process claim based on the children’s initial removal on October 23, 2013; and (3)

Plaintiffs’ § 1983 Fourteenth Amendment procedural due process claim against Kathryn Deardorff

based on material misrepresentations made to the Porter Juvenile Court in relation to the October

46
24, 2013 detention/initial hearing that ultimately led to the October 24, 2013 Detention/Initial

Hearing Order.

SO ORDERED this 5th day of December, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

47