United States District Court, S.D. Indiana, Indianapolis Division
BETH BREITWEISER, individually and on behalf of her minor children, M.B. and T.B., Plaintiff,
NOLA HUNT, Defendant.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
WALTON PRATT, JUDGE
matter is before the Court on a Report and Recommendation
(Filing No. 138) from the Magistrate Judge to grant
in part and deny in part Defendant Nola Hunt's
(“Hunt”) Motion for Summary Judgment (Filing
No. 116.) Hunt objects to the Report and Recommendation.
(Filing No. 141.) Plaintiff Beth Breitweiser
(“Breitweiser”) initiated this lawsuit against
Hunt and the Indiana Department of Child Services
(“DCS”), Director Mary Beth Boneventura, and
Regional Manager Peggy Surbey on October 23, 2015, asserting
various state law claims and violations of the Fourth and
Fourteenth Amendments. After a motion to dismiss, an amended
complaint, and a motion for judgment on the pleadings, the
claims were narrowed to Breitweiser's claims for
unreasonable search and seizure and violation of substantive
and procedural due process and Hunt remains as the sole
the claims narrowed, the Court referred Hunt's Motion for
Summary Judgment to the Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Mark J. Dinsmore issued a Report and
Recommendation, recommending that the Motion for Summary
Judgment be granted in part and denied in part (Filing
No. 138). Specifically, the Magistrate Judge concluded:
Breitweiser, the nonmovant, has demonstrated that she is
entitled to judgment as a matter of law on her Fourth
Amendment and procedural due process claims arising out of
Hunt's warrantless search of Breitweiser's Apartment.
Having given the parties notice and an opportunity to respond
to that prospect [Dkt. 132], the Magistrate Judge recommends
that the District Judge DENY Hunt's Motion [Dkt. 116] and
GRANT partial summary judgment in Breitweiser's favor
with respect to these claims.
Breitweiser, however, has failed to overcome Hunt's
qualified immunity defense with respect to Breitweiser's
due process claims for Hunt's alleged threats to remove
Breitweiser's children. Accordingly, the Magistrate Judge
recommends that the District Judge GRANT Hunt's Motion
[Dkt. 116] with respect to the remainder of Breitweiser's
substantive and procedural due process claims.
Id. at 27-28.
Court finds no error of law or fact in the Report and
Recommendation and therefore OVERRULES Hunt's objection
(Filing No. 141). The Court hereby ADOPTS the
Magistrate Judge's Report and Recommendation (Filing
No. 138), granting in part and denying in part
Hunt's Motion for Summary Judgment (Filing No.
116); for the following reasons.
facts of this case are set forth in detail in the Magistrate
Judge's Report and Recommendation which the Court adopts,
so only a brief synopsis of the factual background is stated
in this Order. In addition, the Court declines to repeat the
thorough legal analysis and conclusion of the Magistrate
Judge, but rather points the parties to the Report and
Recommendation for this information.
dispute in this matter arises out of a citizen's report
of child abuse or neglect, alleging that Breitweiser's
two children were subjected to hazardous living conditions
while temporarily living in an apartment attached to
Breitweiser's veterinary clinic. Hunt, the Case Manager
assigned to conduct an assessment of the report, gained entry
into the apartment without a warrant, to observe whether the
allegations in the initial report were accurate. After
photographing inside the apartment, Hunt filed a child in
need of services (“CHINS”) petition, alleging
that probable cause existed to believe the children were
endangered and that temporary wardship over Breitweiser's
children should be granted to DCS. Two months following the
initiation of the CHINS proceedings in juvenile court, DCS
voluntarily dismissed the case and sometime later, this
filed her Motion for Summary Judgment on Breitweiser's
Fourth and Fourteenth Amendment claims, arguing that no
constitutional violation occurred, and additionally,
qualified immunity provided her protection. Thereafter, the
undersigned referred the motion for summary judgment to the
Magistrate Judge for a report and recommendation.
district court judge may assign dispositive motions to a
magistrate judge, in which case the magistrate judge may
submit to the district judge only a report and recommended
disposition, including any proposed findings of fact.
Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752,
760 (7th Cir. 2009). See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b). “The magistrate
judge's recommendation on a dispositive matter is not a
final order, and the district judge makes the ultimate
decision to adopt, reject, or modify it.”
Schur, 577 F.3d at 760. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b)(3). After a magistrate
judge makes a report and recommendation, either party may
object within fourteen days. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(2). “A judge of the court shall make
a de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1).
Further, a judge “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” Id.
objects to the Report and Recommendation's finding
regarding qualified immunity and with respect to
Breitweiser's Fourth Amendment claims. In particular,
Hunt asserts: (1) Plaintiff has not offered a closely
analogous case showing that Hunt's conduct patently
violated the Fourth Amendment such that a reasonable official
in her position would know that such a violation was
occurring without guidance from the courts, and (2) there
were exigent circumstances sufficient to allow Hunt to search
the hybrid business/home without a warrant.
response to Hunt's objection to the Report and
Recommendation, Breitweiser asserts persuasively, that
“Hunt failed to make a specific objection to a portion
of the report and recommendation related to qualified
immunity. Rather, Hunt merely repackaged her twice rejected
argument, ” and the objection “is a mere
restatement of her failed summary judgment ...