United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
case arises out of a property dispute between pro se
Plaintiff Wayde Coleman and Defendants the City of
Indianapolis (the “City”), David
Lichtenberger, and Pamela Schneeman (the
“Individual Defendants”) (collectively,
“Defendants”). Presently pending before
the Court is Mr. Coleman's Objection to the Report and
Recommendation on Defendants' Motion Dismiss,
Defendants' Motion to Transfer Case, and Mr.
Coleman's Motion to Amend the Complaint. [Filing No.
58.] For the reasons set forth herein, the Court
OVERRULES Mr. Coleman's Objection, and
ADOPTS AS MODIFIED the Magistrate
Judge's Report and Recommendations.
case centers around property owned by Mr. Coleman (the
“Property”). Over the span of nearly ten
years, Mr. Coleman has been involved in disputes with the
City over taxes and fees owed on the Property, including
several attempted tax sales. Those actions have been the
subject of a number of pro se lawsuits filed by Mr.
Coleman in both state and federal court. Mr. Coleman's
Complaint in this matter details these various lawsuits, as
well as the facts underlying them. In presenting the facts
and procedural history, which are intertwined, the Court
draws in part from its prior recitation of those facts,
Coleman v. City of Indianapolis, et al, 2015 WL
5432131 (S.D. Ind. 2015) (“Coleman I”),
and in part from the Magistrate Judge's Report and
Recommendations, [Filing No. 49].
2006, Mr. Coleman acquired ownership of the Property. Because
of delinquent taxes and unpaid special assessments,
penalties, and costs, on March 15, 2010, the Marion Circuit
Court issued a “Judgment and Order for Sale”
allowing the Property to be offered in the 2009 Marion County
Tax Sale, which was held in March 2010. When the Property did
not sell in the tax sale, by operation of law, Marion County
acquired a tax sale certificate for the Property. In November
2010, the Marion Circuit Court, on the motion of the Marion
County Auditor, issued an Order for Issuance of Tax Deed.
Although the court's order authorized Marion County to
exchange its tax sale certificate for a tax deed to the
Property, Marion County did not act until 2014, when it
decided to offer the Property for sale in the surplus real
estate auction to be held on March 21, 2014. In the meantime,
Mr. Coleman attempted to make payments to the County but was
told that partial payments were not permitted and that he
would have to make the full payment of approximately $12, 000
to keep the Property. Mr. Coleman determined that, through a
clerical error, the County Clerk had sent notices to an
incorrect address (the Property's address instead of the
address at which he resided). He sent several letters of
appeal, but received no response.
making an inquiry, Mr. Coleman received notice that the
Property was to be offered in the surplus real estate auction
in March 2014. He then filed suit against the City in the
Marion Superior Court (Coleman I), alleging that he
never received notice of the transfer of his property in 2010
and that the transfer violated his constitutional rights in
numerous respects. On March 12, 2014, the City removed that
case to this Court, where it was assigned to Judge William
Coleman later amended his complaint to add claims related to
the City's alleged failure to provide notice of the tax
sale or to respond to his requests for appeal. On March 20,
2014, the County exchanged its tax sale certificate for the
tax deed. Unaware that the County had taken ownership of the
Property, Mr. Coleman made repairs on it, believing that such
repairs might lessen the amount in fees assessed. In late-May
2014, the County sent Mr. Coleman a letter advising him that
it had taken ownership of the Property, and that he had no
legal right of entry.
September 2015, Judge Lawrence dismissed most of Mr.
Coleman's claims, concluding under the
Rooker-Feldman doctrine that this Court lacked
subject matter jurisdiction over them. Coleman I,
2015 WL 5432131, at *3-4. The Court later granted the
City's motion for summary judgment on Mr. Coleman's
remaining claims. Coleman I, 2016 WL 7454459, at *3
(S.D. Ind. 2016). In its order granting summary judgment, the
Court noted that, following its dismissal of the claims
barred by Rooker-Feldman, Mr. Coleman was successful
in state court. Id. (“[Mr.] Coleman then
pursued those claims in state court. While it does not appear
that his claims for damages have been resolved, the state
court has issued a ruling setting aside the tax deed, finding
it void because Marion County had not provided [Mr.] Coleman
with all of the notices due pursuant to statute before the
Judgment was obtained. Accordingly, [Mr.] Coleman is once
again the owner of record of the Property.”) After Mr.
Coleman regained ownership of the Property, he filed a
complaint for damages in Marion County Circuit Court.
Wayde Coleman v. Treasurer's Office et al, Cause
No. 49C01-1606-CT-023136 (“Coleman II”).
The court in that action granted the City's motion for
summary judgment without a substantive opinion on November
15, 2017, and Mr. Coleman appears to have appealed that
that brings the Court to the instant Complaint, filed by Mr.
Coleman on May 12, 2017. [Filing No. 1.] On the
basis of the factual allegations described above, Mr. Coleman
enumerates twelve causes of action: (1) “Right to be
secure in his person, personal property, and/or home”;
(2) Right to be secure in his person, personal property,
and/or home from fraud, concealment or
misrepresentation”; (3) “Right to be free from
unreasonable seizure of home”; (4) “Right to be
free from deprivation of liberty”; (5) “Right to
be free from deprivation of property without due process
clause”; (6) “Right to petition the government
for redress of grievances without being in fear of
retaliation”; (7) “Failing to investigate”;
(8) “Incorporate due process…Brady Violation 33
U.S. at 83”; (9) “Right to be free from malicious
abuse of process”; (10) “Transferring of property
without proper notice”; (11) “Monell claim
municipality for failure to train and discipline”; and
(12) “Due process failure to give proper notice of all
tax/surplus sale listings, redemption periods/collecting on
tax deed.” [Filing No. 1.]
have moved to dismiss Mr. Coleman's Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
[Filing No. 24.] Defendants have also filed a Motion
to Transfer Mr. Coleman's case to Judge Lawrence, on the
basis that he presided over Coleman I. [Filing
No. 23.] In response to the Motion to Dismiss, Mr.
Coleman filed a Motion to Amend his Complaint. [Filing
No. 33.] This Court referred those three motions to the
Magistrate Judge, who issued his Report and Recommendations
as to each. [Filing No. 49.] The Magistrate Judge
recommended granting Defendants' Motion to Dismiss,
denying Mr. Coleman's Motion to Amend, and denying as
moot Defendants' Motion to Transfer. [Filing No.
49.] Mr. Coleman timely filed his objection to the
Report and Recommendation. [Filing No. 58.]
Rule of Civil Procedure 72(b)(3) provides that the Court will
review recommendations on dispositive motions de
novo. Under de novo review, the Court is free
to accept, reject, or modify the recommended disposition.
Fed.R.Civ.P. 72(b)(3). Although no deference is owed to a
magistrate judge's recommendation under the de
novo standard, Blake v. Peak Prof. Health Servs.
Inc., 1999 WL 527927, *2 (7th Cir. 1999), it is
important to remember that this Court is essentially
functioning as an appellate court in this context. Thus, even
under de novo review, “arguments not made
before a magistrate judge are normally waived.”
United States v. Melgar, 227 F.3d 1038, 1040 (7th
Cir. 2000). As the Seventh Circuit Court of Appeals has
observed, “there are good reasons for the rule, ”
even in the context of de novo review.
Id.Failure to fully develop arguments before the
magistrate judge may prejudice a party, and “a
willingness to consider new arguments at the district court
level would undercut the rule that the findings in a
magistrate judge's report and recommendation are taken as
established unless the party files objections to them.”
motion is non-dispositive, the Court must modify or set aside
any part of the magistrate judge's order that is
“clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a); see also 28 U.S.C. §
636(b)(1)(A). “The clear error standard means that the
district court can overturn the magistrate judge's ruling
only if the district court is left with the definite and firm
conviction that a mistake has been made.” Weeks v.
Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943
(7th Cir. 1997). “An order is contrary to law when it
fails to apply or misapplies relevant statutes, case law, or
rules of procedure.” Pain Center of SE Indiana, LLC
v. Origin Healthcare Solutions, LLC, 2014 WL 6674757, *2
(S.D. Ind. 2014) (citations and quotation marks omitted).