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Westgard v. Kennard

United States District Court, S.D. Indiana, Indianapolis Division

July 12, 2017

JOHN KENNARD, in his capacity as Designee of the Brown County Health Officer, NORMAN OESTRIKE MD, in his capacity as the Brown County Health Officer, THEODORE ADAMS, in his capacity as the elected prosecutor of Brown County, SCOTT D. SOUTHERLAND, in his capacity as the elected Sheriff of Brown County, Defendants.


          Jane Magntis-Stinson, Chief Judge

         This case arises from a dispute regarding a piece of property in Brown County, Indiana. Pro se Plaintiff Thomas Westgard has filed suit against various county officials, including John Kennard, an environmental specialist with the Brown County Health Department; Norman Oestrike, the Health Officer of the Brown County Health Department; Theodore Adams, the Prosecutor of Brown County; and Scott Southerland, the Sheriff of Brown County.[1] Mr. Westgard alleges that the Defendants have violated and will continue to violate his rights under the United States Constitution and 42 U.S.C. § 1983 by entering his property without a warrant and without his consent. Presently pending before the Court is Mr. Westgard's Motion for Preliminary Injunction. [Filing No. 5.] For the reasons described below, the Court denies Mr. Westgard's Motion.



         This dispute centers around a 15-acre parcel of property located in Brown County, Indiana. [Filing No. 1 at 2.] The property is undeveloped except for some fencing and three “rough shacks, ” two of which were built by Mr. Westgard. [Filing No. 1 at 2.] Mr. Westgard stores items on the property, occasionally camps there overnight, and engages in activities such as foraging for mushrooms and persimmons. [Filing No. 1 at 2.] Mr. Westgard alleges that he was initially a tenant on the property, which was wholly owned by Anders Jorgensen, but on December 3, 2015, Mr. Jorgensen conveyed to Mr. Westgard a 10% interest in the property. [Filing No. 1 at 9.]

         Mr. Westgard alleges that on May 5, 2015, he did some agricultural work on the property and spent that night in one of the shacks. [Filing No. 1 at 5.] The following morning, on May 6, 2015, Health Officer Kennard drove onto the property through an unlocked gate with another health department employee and two Brown County sheriff's deputies. [Filing No. 1 at 5.] Mr. Westgard alleges that “No Trespassing” signs were prominently displayed at the entrance to the property. [Filing No. 1 at 6.] Mr. Kennard drove down the driveway through a wooded area approximately one quarter of a mile and came to a stop. [Filing No. 1 at 6.] According to Mr. Kennard, he “observed two shacks from a distance, but did not deem the shacks to be livable.” [Filing No. 24-1 at 3.] Mr. Kennard also attests that “[a]t no time did [he] or any other health officials enter the shacks on the Subject Property or even get close enough to look into a window or door. No one inspected any personal property or belongings that were on the property.” [Filing No. 24-1 at 3.]

         According to Mr. Westgard, he approached the vehicles and asked Mr. Kennard whether he had a warrant (presumably to enter the property). [Filing No. 1 at 6.] Mr. Westgard alleges that Mr. Kennard responded that he had a warrant, but that a copy of it would have to be obtained from the Brown County prosecutor's office. [Filing No. 1 at 6.] Mr. Kennard expressed concerns regarding whether a family was living on the property in a tent (as had previously been observed), and whether any associated sewage and trash were being properly disposed of. [Filing No. 1 at 6.] Mr. Westgard stated that, as Mr. Kennard could observe, the tent had been removed, and therefore there were no longer any enforcement issues. [Filing No. 1 at 6.] Mr. Westgard does not allege that Mr. Kennard either exited the vehicle or approached or entered any of the property's structures.

         Later that day, Mr. Westgard visited the Brown County prosecutor's office in order to obtain a copy of the warrant. [Filing No. 1 at 7.] Mr. Westgard spoke to prosecutor Adams, who allegedly stated that there was no warrant regarding Mr. Kennard's entry on the property. [Filing No. 1 at 7.] Mr. Westgard alleges that Mr. Adams stated that:

Kennard, Adams, and Southerland engaged in an official policy and practice wherein Kennard issues periodic emails to Adams and Southerland. Said emails advise Adams and Southerland that Kennard intended to visit certain properties where he expected property owners and/or tenants to object to Kennard's presence in or on their property. Kennard requests a sheriff's escort, and after approval by Adams, Southerland assigns sheriff's deputies to intimidate residents and owners who object to warrantless, nonconsensual invasions of their homes and property.

[Filing No. 1 at 7.] Upon learning of this “invasion, ” Mr. Westgard became “outraged and furious.” [Filing No. 1 at 7.] Mr. Westgard informed Mr. Adams that the property entries were “criminal acts, ” and that they “were obligated to seek a search warrant before they could enter private property.” [Filing No. 1 at 7.] Later that afternoon, Mr. Kennard informed Mr. Westgard that his authority to enter the subject property was pursuant to Indiana statute and the Brown County septic ordinance. [Filing No. 1 at 8.] Mr. Westgard and Defendants then exchanged emails over the next several months regarding the legality of the entry on the subject property. [Filing No. 1 at 7-9.]

         On January 17, 2017, Mr. Kennard emailed Mr. Jorgensen and Mr. Westgard a notice stating that the Brown County Health Department would be visiting their property during the week of January 30, 2017 for another inspection. [Filing No. 1 at 10.] In response to that letter, Mr. Westgard visited Mr. Adams' office. [Filing No. 1 at 10.] Mr. Adams was not there, so Mr. Westgard left a handwritten note stating that Mr. Kennard had no legal right to enter the property, and that any sheriff assisting in such an entry would be an accessory to trespass and burglary. [Filing No. 1 at 10.] Mr. Adams responded to that note by email, stating:

I am in receipt of your letter. Without researching this area of the law again, I am certain I have previously cited statutory authority giving the Health Department authority to enter one's property for an inspection with proper notice (Title 16, I believe). I am sure you can find the statute. I cannot legally conclude that any officer would be committing a prima facie crime, least of all burglary. I know nothing (outside of what you have informed me) of this planned inspection, nor would any ordinance violation be pursued by the Brown County Prosecutor's Office. Our office would only become involved if a criminal act has been committed, such as a failure to vacate. I suggest calling either John Kennard pursuant to the notice (and the email, below) or the Health Department's attorney, John Reames, to voice any concerns.

[Filing No. 1 at 10.] Mr. Westgard then contacted Mr. Kennard and the Health Department, objecting to the proposed visit to his property. As far as the Court has been informed, that proposed January visit never occurred. Regarding any future visit to the property, Mr. Kennard attests that “[a]ny future inspection would similarly consist of driving onto the Subject Property, using the driveway, briefly driving around the Subject Property, and examining the conditions on the land. We would specifically look for signs anyone was living on the property, trash and debris left out in the open.” [Filing No. 24-1 at 3.]

         On January 25, 2017, Mr. Westgard filed a Complaint in this Court asserting claims against several Brown County officials: Health Officers Kennard and Oestrike; Prosecutor Adams; and Sheriff Southerland.[2] Mr. Westgard alleges violations of 42 U.S.C. § 1983 and the First, Third, Fourth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. [Filing No. 1 at 11-19.] He also alleges violations of Indiana Code Sections 36-7-8-3 and 16-19-3-6. [Filing No. 1 at 16-17.] Mr. Westgard requests a preliminary injunction enjoining Defendants from entering the property as proposed on January 17, 2017; a permanent injunction prohibiting Defendants from entering the property without a warrant; a declaratory judgment that Defendants' enforcement of certain statutes, rules, and ordinances violates the United States Constitution; and an order “that Defendants shall establish a legal process by which Plaintiff and those similarly situated shall receive notice and an opportunity to be heard before a warrant is issued for search of their persons and property by Defendants.” [Filing No. 1 at 19.]

         This Court screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).[3] [Filing No. 15.] The Court dismissed all claims against Defendants in their individual capacities, and it dismissed all claims based on the First, Third, Eighth, Ninth, and Fourteenth Amendments. [Filing No. 15 at 3-7.] The Court also declined to exercise supplemental jurisdiction over Mr. Westgard's state law claims. [Filing No. 15 at 6.] Therefore, Mr. Westgard is left with only an official capacity claim against Defendants Kennard, Oestrike, Southerland, and Adams for violating his rights under the Fourth Amendment and 42 U.S.C. § 1983.[4]

         Presently pending before the Court is Mr. Westgard's Motion for Preliminary Injunction, [Filing No. 5], which Defendants oppose, [Filing No. 22; Filing No. 24]. ...

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