SOUTH BEND — The wrong words typed on a court order has caused Clifford Clevenger’s suit against North Webster Police Department, Kosciusko County Sheriff’s Department and Wawasee Community School Corp., as well as specified employees of those three entities, to be dismissed in U.S. District Court, Northern District of Indiana, South Bend, and refiled locally, in Kosciusko Superior Court 1.
The original suit stemmed from Clevenger claiming his Fourth Amendment rights were violated by his unlawful arrest, false imprisonment and use of excessive force, as well as state laws of assault, battery, false imprisonment, false arrest and negligent infliction of emotional distress.
Clevenger was arrested at North Webster Elementary School Nov. 14, 2013, for violating a protective order, after arriving at the school to have lunch with his son. A school official denied him access and notified police. He alleges he had documentation the protective order was no longer in affect, however, officers believed the order was still in effect and placed him under arrest. He was later released and no formal charges for the protective order violation were filed.
U.S. District Court Judge Philip P. Simon ordered Aug. 14 Clevenger’s claim against the defendants dismissed without prejudice to refile in a state court. There were also motions, by all defendants, for summary judgement, which Simon ordered dismissed with prejudice. He also ordered the case dismissed.
Without prejudice means a new case may be brought or a new order issued on the same basis as the dismissed case or the original order. With prejudice means no new lawsuit on the same subject may be brought by the persons involved.
In the judge’s opinion and order, he states the case resulted from an “unfortunate typographical error made by a divorce court … The court order at issue states a ‘provisional order’ was terminated, when it apparently meant to say that the ‘protective order’ was terminated.”
Simon states “… motions of summary judgement are all granted as the arresting officers are entitled to qualified immunity because they had, at the very least, arguable probable cause to make the arrest. As for the municipalities, they don’t have liability … the use of force was reasonably necessary to make the arrest and plaintiff has not established a federal claim for false imprisonment… .”
The federal document noted Clevenger and Heather DeSomer were divorced and during one of the post-dissolution proceedings a protective order was issued Nov. 8, 2012. That order states Clevenger was to stay away from the residence, school, and/or place of DeSomer’s employment. It expired Nov. 8, 2014.
The dissolution court issued another order Aug. 14, 2013, which is the head of the controversy. The federal court order notes that order stated: “the provisional order entered by this court …. is hereby terminated.” Neither the words protective order, nor the date or cause number are stated in that order. “There is in fact something known as a ‘provisional order‘ under Indiana Divorce Laws. That order is commonly entered by a court when the divorce is first filed.” The judge notes “the fact that the state court in this case said that the provisional order … is hereby terminated” is not a fact that would have struck someone as odd.
Simon notes in his order while Clevenger was in the holding cell, the dissolution court issued another order. “It must have recognized the earlier order terminating the “provisional” order was an error, because the new order specifically states ‘the protective order entered by this court …. is herby terminated.’ “ Once the sheriff’s department received the new order, Clevenger was promptly released. “… makes clear that the August 2013 order did not actually vacate the protective order and it was still in force and effect until the court fixed its mistake.” Simon also noted the officers were not really mistaken when they believed the protective order was still in effect. It was, at least until it was amended by the judge.