United States District Court, N.D. Indiana, Fort Wayne Division
EDDIE J. ARRINGTON, Plaintiff,
CITY OF FORT WAYNE, et al. Defendants.
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on: (1) Defendant Lunz Excavating,
Inc.'s Motion for Summary Judgment (DE #50); (2)
Defendant's Motion for Summary Judgment, filed by Kelley
Towing (DE #52); and (3) Defendants, City of Fort Wayne and
John Caywood's Motion for Summary Judgment (DE #56), all
filed on February 23, 2017. For the reasons set forth below,
the motions are GRANTED. Arrington's
federal claims are DISMISSED WITH PREJUDICE
and this case is REMANDED to Allen Superior
Court for further proceedings.
March 10, 2016, Eddie J. Arrington (“Arrington”)
filed a complaint against the City of Fort Wayne
(“City”), Mayor Henry, John Caywood
(“Caywood”), Kelley Towing
(“Kelley”), and Lunz Excavation
(“Lunz”) in the Allen Superior Court. The
complaint alleges that the Defendants discriminated against
him based on his “race and aesthetic belief, ” by
depriving him of property in violation of the Fourteenth
Amendment and I.C. § 35-46-4-1. More specifically, he
alleges that, on March 10, 2014, a neighborhood code officer,
together with the Fort Wayne Police Department, entered his
property and unlawfully removed his car, truck, trailer,
riding lawn mower, grill and other items. Because the
complaint asserts federal claims, it was removed to this
have each filed a motion for summary judgment asserting that
judgment must be entered in their favor as a matter of law.
Each Defendant also served Arrington with a “Notice of
Summary Judgment Motion” that explained what a summary
judgment motion is and his obligations in response to the
motion. (DE ##54, 55, 59). The notice explained that factual
allegations must be supported with citations, and that the
court is not required to consider materials that are not
cited. Despite these notices, Arrington filed a single
response to the instant motions that is roughly two pages in
length and devoid of any citations. (DE #66). He also filed a
handful of exhibits, including a disk with two video
segments. (DE #67). Defendants filed a joint reply brief on
July 21, 2017, and the motion is now ripe for adjudication.
judgment must be granted when “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). A
genuine dispute of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every
dispute between the parties makes summary judgment
inappropriate; “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Id. In determining whether summary judgment is
appropriate, the deciding court must construe all facts in
the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor toward the nonmoving party does not
extend to drawing inferences that are supported by only
speculation or conjecture.” Fitzgerald v.
Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing
Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th
opposing a properly supported summary judgment motion may not
rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the
evidence she contends will prove her case.” Goodman
v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th
Cir. 2010). If the nonmoving party fails to establish the
existence of an essential element on which he or she bears
the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
Defendant has provided a statement of undisputed material
facts with citations to supporting evidence in compliance
with the requirements of Federal Rule of Civil Procedure 56
and Northern District of Indiana Local Rule 56-1.
Accordingly, to avoid summary judgment, Arrington must
demonstrate that there is a genuine dispute by citing
material facts he contends are in dispute in a statement of
genuine disputes or showing that the materials cited by the
Defendants do not establish the absence of a genuine dispute.
Fed. R.Civ. P. 56(c).
there are three separate motions for summary judgment before
the Court, the controlling facts are undisputed and identical
as to each motion. For that reason, the Court has borrowed
liberally from the response brief of the City, Mayor Henry,
and Caywood. (DE #57). Arrington's response brief does
not contain a statement of genuine disputes, but does cite to
several exhibits in the body of his response. Although not
strictly in compliance with this Court's rules, in light
of his pro se status, the exhibits cited by
Arrington have been considered by the Court. These exhibits,
however, do not directly contradict any of the
Defendants' assertions. Accordingly, where Defendants
have appropriately cited to the record, the facts they
present are deemed admitted.
City has enacted ordinances which regulate housing and
building standards for properties located within the City,
including an ordinance entitled “Minimum Housing and
Maintenance Standards, codified as Chapter 152 of the Fort
Wayne City Code of Ordinances.” (Caywood Aff. ¶
4). The City has also enacted an ordinance regulating the
manner of parking of motor vehicles within the City limits.
(Id. ¶ 5).
152.04.C(6) and (7) govern exterior property areas and
(C) Exterior Property Areas. ****
(6) Vehicles. Except as provided for in other
regulations, no inoperable motor vehicle shall be parked,
kept or stored on any premises, and no vehicle shall at any
time be in a state of major disassembly, disrepair, or in the
process of being stripped or dismantled. All operable
vehicles shall be parked on an approved surface.
(7) Prohibited outdoor storage. It shall be unlawful
and prohibited for an occupant to cause, keep, permit or
maintain a public nuisance. Public nuisance shall include,
but not be limited to, the following:
(a) Building materials stored on any premises, except the
following: building materials and equipment placed or stored
on premises, or for a period of no longer than 30 days prior
to a commencement of building, and no longer than ten days
after the completion of building on said premises.
(b) Any furniture, appliances or household items not
originally designed or manufactured solely for outdoor use,
including tools, auto parts, and other similar items.
(c) Any equipment, furniture, bicycles, or children's
toys which were originally designed or manufactured for
outdoor use and which are now dilapidated, deteriorated or
(Caywood Aff. Ex. 1 at 9).
152.04.E, governs trash and debris. It provides:
(E) Trash and Debris. All exterior property and
premises, and the interior of every structure, shall be free
from any accumulation of trash and debris.
(1) Disposal of Trash and Debris. Every occupant of
a structure shall dispose of all refuse in a clean and
sanitary manner by placing in refuse containers.
(2) Approved Refuse Containers. The owner of every
occupied premise shall be responsible to supply covered
refuse containers for trash sufficient to meet the needs of
(Caywood Aff. Ex. 1 at 11).
City's Neighborhood Code Enforcement Department
(“NCE”) is responsible for enforcement of both
the Indiana Unsafe Building Law (I.C. § 36-7-9 et
seq.) and the relevant sections of the City Building
Code. (Caywood Aff. ¶ 6). On March 10, 2014, the date of
the NCE's entry onto Arrington's properties to abate
violations of the City Code, Cindy Joyner was the Deputy
Director of NCE. (Joyner Aff. ¶¶ 2-3). Caywood held
the position of Administrator. (Id. ¶ 3;
Caywood Aff. ¶ 3). His duties included the supervision
of one field supervisor and eleven (11) Code enforcement
officers. (Caywood Aff. ¶ 3). He was not a policy maker
for NCE or the City. (Id.). NCE has policies and
procedures for its enforcement of the City Code.
(Id. ¶ 7; City Code Section 152.12, Enforcement
of Penalties; I.C. § 36-7-9-17).
NCE learns that a property may be in violation of Section 152
or 72, or the Unsafe Building Law, a Code enforcement officer
goes to the property, inspects the property, and takes
photographs of the items that violate the City Code. (Caywood
Aff. ¶ 8). The NCE then cites the property owner.
(Id.). The property owner has a right to an
administrative hearing. (Id.). If the
violations concern health and safety, NCE will give the
property owner ten days to abate the violation.
(Id.). If the violations are not abated, the NCE
issues a written Order to Abate (“OTA”), giving
the property owner an additional ten days to ...