Miller v. Whipker

Full title: RICK MILLER, Plaintiff, v. SHERIFF KENNETH J. WHIPKER, in his official…

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

Date published: Mar 31, 2004

IP 02-924-C-JDT/TAB (S.D. Ind. Mar. 31, 2004)

Opinion

IP 02-924-C-JDT/TAB.

March 31, 2004.

ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ¹

1 This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.

JOHN TINDER, District Judge

Plaintiff, Rick Miller, has brought this § 1983 action against Defendant Sheriff Kenneth J. Whipker, in his official capacity as Sheriff of the Bartholomew County Sheriff's Department, and Defendant Ray Sims, in his individual capacity. Mr. Miller alleges that Deputy Sims arrested him without probable cause in violation of the Fourth Amendment. He also alleges that the Bartholomew County Sheriff's Department maintains a policy or custom of arresting only the male in cross complaint domestic violence situations that arise between a man and woman, in violation of the Fourteenth Amendment Equal Protection Clause. This matter comes before the court on Defendants' Motion for Summary Judgment. The court holds as follows:

I. Background Facts

The story, according to Mr. Miller, follows: On the night of June 17, 2000 and early morning of June 18, 2000, Mr. Miller hosted an annual pig roast for his friends, employees, and clients. (Pl.'s Ex. A, Miller Aff. ¶ 5.) During the pig roast, Mr. Miller's wife, Julie Miller, became very intoxicated. ( Id. ¶ 6.) After the pig roast, Mr. Miller retreated to bed. ( Id. ¶ 7.) Sometime in the early morning hours of June 18, 2000, Mr. Miller was lying in bed when Mrs. Miller entered the bedroom and attacked Mr. Miller. ( Id. ¶ 8.) Upon hearing the commotion, Mr. Miller's adult daughter Ariane Miller entered the bedroom and joined in the attack on Mr. Miller. ( Id. ¶ 9.) During this attack, and while defending himself, Mr. Miller suffered injuries to his face, back, lip, eye, and side of his torso in the form of bruising, scratches, and lacerations. ( Id. ¶ 10.) Mr. Miller was able to get his wife and daughter out of the residence and to cease attacking him. However, on 3 occasions, Mrs. Miller reentered the residence and attacked Mr. Miller. ( Id. ¶ 11.) During the last attack, Mrs. Miller picked up a frying pan and attempted to hit Mr. Miller, but missed and hit herself in the face instead. ( Id. ¶ 12.) At no time when Mrs. Miller reentered the residence did he offensively strike her. At most, he restrained her and pushed her out of the residence. ( Id. ¶ 13.) The third time Mrs. Miller entered the residence, a neighbor who had entered the residence restrained Mrs. Miller after Mrs. Miller tried to strike Mr. Miller with the frying pan. ( Id. ¶ 14.) After things calmed down, Mr. Miller went back to bed. Mrs. Miller joined Mr. Miller in bed at approximately 7:00 a.m. ( Id. ¶ 15.) At that time, Mr. Miller informed Mrs. Miller that he was filing for divorce. In response to this, Mrs. Miller stormed out of the room. ( Id. ¶ 16.)

After the altercation, Ariane left the Miller residence and contacted the Bartholomew County Sheriff's Department. Ariane alleged that she was injured by Mr. Miller and signed a Misdemeanor Battery Affidavit. (Defs.' Ex. 2A, Ariane Miller Misdemeanor Battery Affidavit.) Deputy T.A. Smith of the Bartholomew County Sheriff's Department took Ariane's statement. (Defs.' Ex. 2, Smith Aff. ¶ 4.)

On Sunday, June 18, 2000, as a result of Ariane's complaint, Deputy Sims of the Bartholomew County Sheriff's Department was dispatched to the Miller residence for a welfare check. (Defs.' Ex. 4B, Sims Test. at 172-73.) Deputy Sims, however, did not know that Ariane had filed a battery complaint against Mr. Miller at the time he was dispatched or at the time of the arrest. Upon arriving at the Miller residence, Deputy Sims observed Mrs. Miller walking up the driveway. ( Id. at 173.) After exiting his vehicle, Deputy Sims approached Mrs. Miller and observed red marks under her left eye and on her neck. ( Id. at 187.) Deputy Sims took Mrs. Miller's statement as to what had occurred and reviewed with her the Misdemeanor Battery Affidavit. ( Id. at 173; Defs.' Ex. 4C, Julie Miller Misdemeanor Battery Affidavit.) Mrs. Miller informed Deputy Sims that Mr. Miller repeatedly punched her in the face and eye. (Defs.' Ex. 4B, Sims Test. at 191.) Mr. Miller stands 6'5" and weighs approximately 265 pounds. (Defs.' Ex. 4, Sims Aff. ¶ 6.) Mrs. Miller stands 5'3" and weighs approximately 120 pounds. (Pl.'s Ex. A, Miller Aff. ¶ 4.)

After speaking to Mrs. Miller, Deputy Sims entered the Miller residence to arrest Mr. Miller for battery. (Defs.' Ex. 4B, Sims Test. at 173.) At approximately 10:30 a.m., Deputy Sims entered Mr. Miller's room and informed him that he was under arrest. (Pl.'s Ex. A, Miller Aff. ¶ 17.) Deputy Sims did not interview Ariane or any other witnesses besides Mrs. Miller before making the arrest. (Defs.' Ex. 4B, Sims Test. at 185-86.) Instead, Deputy Sims arrested Mr. Miller based on the statements of Mrs. Miller and the alleged physical signs of injury to Mrs. Miller. ( Id. at 184-86.) According to Deputy Sims, he had no choice but to arrest Mr. Miller because there were physical signs of injury to Mrs. Miller and she had filled out a Misdemeanor Battery Affidavit. ( Id. at 186.)

Mr. Miller informed Deputy Sims that he was the victim of the incident and that Mrs. Miller had beaten him. (Pl.'s Ex. A, Miller Aff. ¶ 18.) Mr. Miller told Deputy Sims that he wanted to fill out a Misdemeanor Battery Affidavit against Mrs. Miller and Ariane. ( Id. ¶ 19.) Mr. Miller had readily visible injuries to his face, back, lip, eye, and the side of his torso, which included scratches, bruises, and lacerations. ( Id. ¶¶ 10, 22.) Deputy Sims telephoned his captain, Captain Shuerman, and "told [Captain Shuerman] what marks [Mr. Miller] had on him" and asked if he should arrest Mrs. Miller, too. (Defs.' Ex. 4B, Sims Test. at 197-98.) Captain Shuerman told Deputy Sims that it sounded like retaliation and told Deputy Sims not to arrest Mrs. Miller and not to take Mr. Miller's statement. ( Id.) Deputy Sims refused to take Mr. Miller's statement or to permit Mr. Miller to fill out a battery affidavit. ( Id. at 196-97.) Instead, Deputy Sims stated to Mr. Miller: "Rick, sorry, you're screwed." ( Id. at 198.) Additionally, Mr. Miller asked Deputy Sims to take photographs of his injuries. ( Id. at 200.) Deputy Sims refused to take photographs of Mr. Miller after checking with Captain Shuerman, who told Deputy Sims not to take pictures of Mr. Miller. ( Id.) Although Deputy Sims did not take a formal statement from Mr. Miller, Mr. Miller "told [Deputy Sims] his story." ( Id. at 197.)

Sheriff Kenneth Whipker is the official policymaker of the Bartholomew County Sheriff's Department. (Defs.' Ex. 3, Whipker Aff. ¶ 4.) In a letter dated October 12, 2000, Mr. Miller, through his attorneys, requested that Sheriff Whipker look into the matter of Mr. Miller's arrest and the conduct of the deputies. (Pl.'s Ex. B, Oct. 12, 2000 Letter.) Sheriff Whipker replied to Mr. Miller's letter on October 30, 2000. In the letter, Sheriff Whipker informed Mr. Miller that an investigation of the matter revealed that his deputies had followed proper procedures and protocols. (Pl.'s Ex. B, Oct. 30, 2000 Letter.)

On June 14, 2002, Plaintiff filed his Complaint in the United States District Court, Southern District of Indiana. Originally, Mr. Miller brought this action against the Bartholomew County Sheriff's Department and Ray Sims. On February 3, 2004, oral argument was held on this matter. At oral argument, Plaintiff moved to amend the Complaint to change the name of the Defendant to Sheriff Kenneth J. Whipker, in his official capacity as Sheriff of Bartholomew County Sheriff's Department, and remove Bartholomew County Sheriff's Department as a named defendant. With no objection from opposing counsel, the court granted the amendment. Additionally, at oral argument, Plaintiff clarified that he brings suit against Deputy Sims in his individual capacity only. The caption in this Entry has been changed to accommodate these modifications, and the Clerk of the Court is DIRECTED to change the docket accordingly.

Furthermore, on February 12, 2004, Plaintiff filed a motion to withdraw his equal protection claim against Deputy Sims, in his individual capacity. Plaintiff's Motion is GRANTED; therefore, Defendants' Motion for Summary Judgment on the Fourteenth Amendment claim against Deputy Sims is moot.

Plaintiff originally brought suit under both the Federal and Indiana Constitutions. On February 12, 2004, Plaintiff moved to withdraw his claims under the Indiana Constitution. Plaintiff's Motion is GRANTED; therefore, Defendants' Motion for Summary Judgment on the claims brought under the Indiana Constitution is moot.

The claims that remain are Plaintiff's claim of arrest without probable cause and Plaintiff's claim that the Bartholomew County Sheriff's Department has a policy or custom of arresting the male in cross-complaint domestic violence calls when both the man and woman complain, both brought pursuant to 42 U.S.C. § 1983.

On May 6, 2003, Defendants filed this Motion for Summary Judgment. On July 2, 2003, Plaintiff filed his Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment. On July 15, 2003, Defendants filed a Reply. A Surreply was filed by Plaintiff on July 21, 2003, in response to which Defendants filed a Motion to Strike Portions of Plaintiff's Surreply on July 29, 2003.

II. Motions to Strike

Defendants have raised multiple motions to strike, which the court must address first, in order to determine which evidence may be considered by the court in the summary judgment discussion.

A. Defendants' Motion to Strike Section C of Plaintiff's Surreply

Defendants argue that subpart C of Plaintiff's Surreply should not be considered by the court in Defendants' Motion for Summary Judgment because no new evidence was cited in Defendants' Reply. Local Rule 56.1(d) permits a nonmovant to file a surreply only in certain situations. The rules states:

If, in reply, the moving party relies upon evidence not previously cited or objects to the admissibility of the non-moving party's evidence, the nonmoving party may file a surreply brief limited to such new evidence and objections, no later than seven days after service of the reply brief.

S.D. Ind. L.R. 56.1(d).

The court agrees that no new evidence was cited in Defendants' Reply Brief. Rather, Defendants' Reply objects to Plaintiff's Exhibits B, C, and D, as well as portions of Mr. Miller's Affidavit, and also continues to argue points of law. Accordingly, Plaintiff was only permitted to submit a surreply limited to addressing the objections to evidence that were raised by Defendants in the Reply Brief. In subpart C of Plaintiff's Surreply, however, Plaintiff only argues points of law. Therefore, Defendants' Motion to Strike subpart C of Plaintiff's Surreply is GRANTED.

B. Defendants' Motion to Strike Plaintiff's Exhibit B

Plaintiff's Exhibit B contains two letters. The first letter is dated October 12, 2000, and appears to be written by Michael Thomasson, Plaintiff's attorney, and is addressed to Sheriff Kenny Whipker of the Bartholomew County Sheriff's Department. The second letter is dated October 30, 2000, and appears to be written by Sheriff Whipker and addressed to Mr. Thomasson. Defendants argue that these letters should not be considered for purposes of the summary judgment motion for three reasons: First, because there is no deposition, affidavit, or certification to support the authenticity of the letters, Defendants move to strike them. Second, Defendants argue that the letter dated October 12, 2000 is hearsay because it was submitted for the purpose of demonstrating the truth of the matters contained in the letter. Third, Defendants argue that both letters are irrelevant and should be excluded under Federal Rule of Evidence 402 because they concern post-arrest actions and not actions leading up to the arrest of Mr. Miller.

The October 12, 2000 letter contains numerous factual assertions about the events of the night leading to the arrest of Mr. Miller. Because Mr. Thomasson did not witness the events of the night, the facts contained in the letter must have been relayed to him by Mr. Miller or some other party who was able to witness the events. Consequently, the contents of the letter are inadmissible because they are not based on personal knowledge. Also, the contents appear to be tendered for the truth of the matters asserted. Defendants' Motion to Strike the October 12, 2000 letter contained in Plaintiff's Exhibit B is GRANTED.

Defendants argue that the October 30, 2000 letter should be excluded because it has not been authenticated by deposition, affidavit, or certification. In deciding a motion for summary judgment, the court is permitted to consider "any material that would be admissible or usable at trial," which includes "properly authenticated and admissible documents or exhibits." Smith v. City of Chi., 242 F.3d 737, 741 (7th Cir. 2001) (internal quotations omitted) (citing Woods v. City of Chi., 234 F.3d 979, 988 (7th Cir. 2000), cert. denied, 534 U.S. 955 (2001)). However, "[t]here is no single way to authenticate evidence." United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994), cert. denied, 514 U.S. 1084 (1995). "In particular, the direct testimony of a custodian or a percipient witness is not a sine qua non to the authentication of a writing." Id. (citing United States v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994)). "[A] document's `[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances,' can, in cumulation, even without direct testimony, provide sufficient indicia of reliability to permit a finding that it is authentic." Id. (citations omitted). Under Rule 901, all that is required is a "prima facie showing of genuineness"; it is up to the jury to determine the true authenticity of the evidence, as well as its probative value. United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997) (citations omitted).

The court finds that there is sufficient evidence of the authenticity of the October 30, 2000 letter for it to be considered in this summary judgment analysis. The letter appears to be written on letterhead from the Bartholomew County Sheriff's Department, see United States v. Hoag, 823 F.2d 1123, 1127 (7th Cir. 1987), and appears to be signed by Sheriff Whipker. Defendants have introduced into evidence the Affidavit of Sheriff Whipker (Defs.' Ex. 3), which includes Sheriff Whipker's signature. Although the letter is signed "Kenny" and the affidavit is signed with Sheriff Whipker's full name, the signatures are sufficiently similar for the court to believe the letter was written by Sheriff Whipker. See United States v. Papia, 910 F.2d 1357, 1366-67 (7th Cir. 1990); Traction Wholesale Ctr. Co. v. Nat'l Labor Relations Bd., 216 F.3d 92, 105 (D.C. Cir. 2000).

Furthermore, the court is not persuaded by Defendants' argument that because the October 30, 2000 letter was written four months after Mr. Miller's arrest, it is irrelevant. Plaintiff argues that Sheriff Whipker condoned the practices and procedures used by the Deputies who arrested him. The contents of the October 30, 2000 letter include Sheriff Whipker's statement that he asked "Captain Stan Franke to evaluate the officers' investigation concerning the criminal case against Rick Miller" and Sheriff Whipker's position that proper procedures were followed in the criminal case against Mr. Miller. Additionally, in the letter, Sheriff Whipker states his belief that the officers "both followed the procedures outlined by the Bartholomew County Prosecutors [sic] Office in domestic violence cases." The letter also states, "The officers' [sic] did what they were supposed to do in domestic violence cases and investigations." Defendants' Motion to Strike the October 30, 2000 letter contained in Plaintiff's Exhibit B is DENIED.

C. Defendants' Motion to Strike Plaintiff's Exhibit C

Defendants contend that Plaintiff's Exhibit C should be excluded because: 1) the documents are not authenticated by affidavit, certification, deposition, or any other process; 2) the documents are hearsay; and 3) the documents are not relevant. Plaintiff's Exhibit C consists of materials produced by Defendants in response to Plaintiff's Second Request for Production of Documents and Records. Specifically, Plaintiff requested "[c]opies of any and all training tapes, videos, and manuals on how deputies should respond to a domestic battery incident." ( See Pl.'s Ex. C, Defs.' Resp. Pl.'s 2d Req. Produc. Docs. Records at 1.) In response to Plaintiff's request, Defendants produced "copies of three video tapes pertaining to domestic violence training," and "copies of the Bartholomew County Sheriff's Office Training Division material and pamphlets pertaining to domestic violence/sexual assault interdiction." ( Id.) Additionally, Plaintiff requested "[a]ny and all documents pertaining to the Bartholomew County Sheriff's Departments procedures on how officers should respond to domestic battery incidents." ( Id.) For this discovery request, Defendants replied: "See documents produced under Response to Request No. 1. . . . Otherwise, defendant does not have a written policy specific to responding to domestic violence incidents." ( Id. at 2.)

The court is satisfied that the contents of Plaintiff's Exhibit C are what Plaintiff purports they are. Plaintiff attached a copy of Defendants' response to Plaintiff's Discovery request to Plaintiff's Exhibit C; thus, it is apparent that the documents were produced by Defendants in response to Plaintiff's discovery request for domestic violence training materials. The act of producing documents has been held to authenticate documents implicitly. See United States v. Lawrence, 934 F.2d 868, 871 (7th Cir. 1991) (citing United States v. Brown, 688 F.2d 1112, 1115-16 (7th Cir. 1982)); Indianapolis Minority Contractors Ass'n v. Wiley, No. IP 94-1175-C, 1998 WL 1988826, at *6 (S.D. Ind. May 13, 1998) (citations omitted); Renaldi v. Sears Roebuck Co., No. 97 C 6057, 2001 WL 290374, at *9 (N.D. Ill. Mar. 21, 2001) (citations omitted).

Next, Defendants argue that the materials contained in the training materials are hearsay. Mr. Miller argues that Bartholomew County maintains an express policy of arresting the male in cross complaint domestic abuse situations. Mr. Miller offers the training materials as evidence of the existence of an express policy, which is a material fact to his claim of municipal liability. Under Federal Rule of Evidence 807(A), the court is permitted to admit hearsay evidence of a material fact as long as there are equivalent circumstantial guarantees of trustworthiness to Rule 803 or 804. Moreover, most of the training materials to which Mr. Miller cites are based on hypothetical scenarios that do not purport to assert any statements of fact. For example, the first arrest scenario cited by Plaintiff begins, "Two officers respond to a domestic." ( See Pl.'s Ex. C, Training Materials at tab 2, p. 7.) Although the slide show does contain some assertions of fact, e.g., "One in three women are likely to experience violence in intimate relationships" ( see Pl.'s Ex. C, Slide Show, set one, at 3), the purpose for which the slide show has been produced is not for the truth of the statements asserted on any of the slides.

Lastly, Defendants argue that the documents in Exhibit C are irrelevant because there is no date indicated on the documents, the purpose of the documents is not indicated, and there is no indication of whether the documents were ever viewed by the officers who arrested Mr. Miller. Additionally, Defendants argue that the fact that the documents were in the possession of the Sheriff as of February 27, 2003 does not suggest that they were ever used prior to the arrest of Mr. Miller on June 18, 2000 or even in the possession of the Sheriff at the time.

First, Defendants have testified as to the purpose of the documents by producing them in response to Plaintiff's discovery request for training materials for domestic violence. Second, the court has found several dates in the training materials which suggest that the materials were available in 2000. In section two of the materials, entitled Impact of Arrest, the lesson plan cover sheet states that the materials were prepared on "02-03-98." ( See Pl.'s Ex. C, Training Materials at tab 2, p. 2.) In section three, entitled Legal Issues, the materials indicate that "A protective order file will be incorporated into the law enforcement data system by July 1, 1998." ( See Pl.'s Ex. C, Training Materials at tab 3, p. 9.) In section seven, entitled Overview to Assault, another lesson plan cover sheet indicates that the materials were prepared on "02-03-98." ( See Pl.'s Ex. C, Training Materials at tab 7, p. 2.) Finally, there appear to be two sets of slide shows. In the second set, on the bottom left hand corner of every slide is the following notation: "02/01." ( See Pl.'s Ex. C, Slide Show, 2nd set.) It is reasonable to infer that the notations represent the date on which the slides were created. February 2001 is only 7 or 8 months after Mr. Miller was arrested.

This leaves the argument that there is no proof that Deputy Sims saw the training materials. However, Plaintiff need not demonstrate that Deputy Sims viewed the training materials in order to survive summary judgment in his claim against Bartholomew County. Mr. Miller contends that Bartholomew County maintains an express policy of treating complaints of men differently than complaints of women in domestic violence situations. As evidence of this assertion, Mr. Miller offers the training materials contained in Exhibit C. Assuming for the limited purpose of this motion to strike that the training materials demonstrate an unconstitutional policy, the question of causation would be for the trier of fact to decide because it would be reasonable for a trier of fact to infer that such policy was the moving force behind Mr. Miller's constitutional injury. See Bd. of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404-05 (1997) ("Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. . . . [T]he conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains."); Estate of Novack v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000) ("That a constitutional injury was caused by a municipality may be shown directly by demonstrating that the policy itself is unconstitutional." (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694-95 (1978))); Myers v. County of Orange, 157 F.3d 66, 73 (2d Cir. 1998) ("`The critical question . . . is whether there is sufficient evidence in the record of [a] municipal policy, custom or practice, so that a jury could reasonably infer that the individual conduct in this case was causally connected to the policy.'" (quoting Gentile v. County of Suffolk, 926 F.2d 142, 152 (2d Cir. 1991))), cert. denied, 525 U.S. 1146 (1999)); see also Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) ("To the extent that the `causal link' is not too attenuated, the jury must decide whether the government policy or custom proximately caused the constitutional violation." (citation omitted)). On the grounds asserted, Defendants' Motion to Strike Plaintiff's Exhibit C is DENIED.

D. Defendants' Motion to Strike Plaintiff's Exhibit D

Defendants move to strike Plaintiff's Exhibit D on the grounds that 1) the documents are unauthenticated by affidavit, deposition or certificate; 2) the documents are hearsay; and 3) that the documents are irrelevant. The first document in Exhibit D is a letter, dated April 23, 2003, which reads: "Enclosed are redacted copies of the investigation files for the year 2000 regarding domestic battery," and excluding investigation files dealing with minors. ( See Pl.'s Ex. D, Apr. 23, 2003 Letter.) The letter is typed on Miller Carson Boxberger Murphy letterhead, and is signed by Jeremy M. Dilts, attorney for Defendants, and addressed to Mr. Sean G. Thomasson of Thomasson Thomasson, P.C., attorney for Plaintiff. ( Id.)

Mr. Miller has taken the information from the documents in Plaintiff's Exhibit D and derived the following conclusion from them:

[O]ut of approximately 123 domestic reports the Bartholomew County Sheriff's Department responded to in 2000, only 17 listed the victim as a male, which equates to approximately 13%. Out of those 17 reports that listed the victim as a male, at least 7 reports dealt with a male to male altercation (instead of a male to female). Consequently, such statistics would lower the above referenced percentage to roughly 10%. Consequently, 90% of the time Deputies responded to a domestic violence call dealing with a male/female altercation, they cited the victim as a female and the aggressor as a male.

(Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. at 12.)

Exhibit D does not pose authentication problems because, like with Exhibit C, Defendants have sufficiently authenticated the documents in Exhibit D in the act of producing them in response to Plaintiff's request. Although the documents are being offered for the truth of the matter asserted, they would likely fall under Federal Rule of Evidence 803(8) as a public record exception to the hearsay rule.

However, the court finds that Exhibit D should be excluded from consideration because Exhibit D is not relevant to any material issue in the case. The asserted fact that the Bartholomew County Sheriff's Department's police records for domestic disputes between a man and a woman only list the man as the victim 10% of the time does not demonstrate gender discrimination. Disparate impact does not equal disparate treatment, the latter being the concern in equal protection claims. Anderson v. Cornejo, 355 F.3d 1021, 1024 (7th Cir. 2004) (citing Washington v. Davis, 426 U.S. 229 (1976)). "[D]isparities that cannot be chalked up to random variance may have causes other than race, sex, or another proscribed ground of decision." Id. For example, it is common knowledge that domestic violence is much more frequently perpetrated against women than against men. See U.S. Dep't of Justice, Bureau of Justice Statistics Factbook, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends 4 (1998) ("[F]emales are 5 to 8 times more likely than males to be victimized by an intimate."). Moreover, Plaintiff's statistics do not reveal how many of the cases involved cross-complaints. Thus, even assuming that there were 116 reports of altercations between a man and a woman in Bartholomew County in 2000, and that in only 10 of those cases, the male was listed as the victim, there is no evidence that in the remaining 106 cases the male party attempted to file a complaint. Without knowing how many of the 116 altercations involved cross-complaints, the statistics do not evidence disparate treatment. See Strauss v. City of Chi., 760 F.2d 765, 768-69 (7th Cir. 1985). In Strauss, the plaintiff attempted to demonstrate the existence of a pattern of conduct by the municipality by offering statistical evidence that showed that only six to seven percent of all registered complaints against the police department were sustained, arguing that it must be assumed that the city's review methods were weighted against complainants. Id. at 768. The Seventh Circuit held that "[t]his reasoning is specious, for the number of complaints filed, without more, indicates nothing. People may file a complaint for many reasons, or for no reason at all." Id. at 768-69. Cf. Chavez v. Ill. State Police, 251 F.3d 612, 638 (7th Cir. 2001) ("[P]arties may not prove discrimination merely by providing the court with statistical analysis. The statistics proffered must address the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated." (citing Schweiker v. Wilson, 450 U.S. 221, 223 (1981)); Bennett v. Roberts, 295 F.3d 687, 697 (7th Cir. 2002). Exhibit D does not have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. For this reason, Defendants' Motion to Strike Plaintiff's Exhibit D is GRANTED.

E. Defendants' Motion to Strike Paragraphs 6 to 16 of Mr. Miller's Affidavit

Next, Defendants move to strike paragraphs 6 to 16 of Mr. Miller's Affidavit on the grounds that the paragraphs are irrelevant. The contested paragraphs relay Mr. Miller's account of the altercation between Mr. Miller, Mrs. Miller, and Ariane, which took place late in the evening of June 17, 2000 and early in the morning on June 18, 2000. Defendants argue that because the circumstances of the evening, as Mr. Miller perceived them, were not known to the investigating officers, they are not relevant to the action at hand; the relevant inquiry is what the arresting officers knew at the time of the arrest.

In the record, there is evidence that Deputy Sims was informed of the events that had transpired before Mr. Miller's arrest, as Mr. Miller perceived them. During Deputy Sims' testimony at Mr. Miller's custody or marital dissolution hearing, Deputy Sims testified: "He told me his story." (Defs.' Ex. 4B, Sims Test. at 197.) Thus, it is reasonable to infer that, at the time of the arrest, Mr. Miller told Deputy Sims his version of the altercation. Defendants' Motion to Strike paragraphs 6 to 16 of Mr. Miller's Affidavit is DENIED.

F. Defendants' Motion to Strike Paragraphs 25 and 26 of Mr. Miller's Affidavit

Defendants move to strike paragraphs 25 and 26 of Mr. Miller's Affidavit. Paragraph 25 of Mr. Miller's Affidavit states: "Further, because Affiant was arrested and his [w]ife and adult daughter were not, and because of the actions of the Bartholomew County Sheriff's Department, Affiant suffered loss of reputation in the business community. In that Affiant was labeled as a `wife and child beater.'" (Pl.'s Ex. A, Miller Aff. ¶ 25.) Defendants move to strike this paragraph on the grounds that it is based on speculation and inadmissible under Federal Rule of Evidence 602 because Mr. Miller has not submitted evidence from a member of the business community attesting to the alleged fact. However, Mr. Miller is permitted to offer his own personal assessment of how the arrest affected his reputation. See Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir. 1983) (plaintiff's testimony about injury to his reputation was evidence supporting jury award (citing Busche v. Burkee, 649 F.2d 509, 518, 520 (7th Cir. 1981))). Defendants' Motion to Strike paragraph 25 of Mr. Miller's Affidavit is DENIED.

Defendants also move to strike paragraph 26 of Mr. Miller's Affidavit, which states: "Affiant estimates that this loss of reputation caused Affiant to lose approximately $19,000-$20,000.00 in business." (Pl.'s Ex. A, Miller Aff. ¶ 26.) Defendants argue that because Mr. Miller has produced no evidence of financial records or loss of reputation, the assertions in paragraph 26 are self-serving and speculative. The Seventh Circuit has explained: "[I]t is not the mere self-serving nature of a nonmovant's affidavit that renders such evidence infirm. Rather, it is the absence of personal knowledge or the failure to set forth `specific facts' as required by Rule 56(c) of the Federal Rules of Civil Procedure that is problematic." Williams v. Seniff, 342 F.3d 774, 789 (7th Cir. 2003) (citing Payne v. Pauley, 337 F.3d 767, 772-74 (7th Cir. 2003)). As the owner of his business, Mr. Miller has personal knowledge of the financial state of his business and may also offer an opinion as to the cause of monetary loss. Defendants' Motion to Strike paragraph 26 of Mr. Miller's Affidavit is DENIED.

III. Summary Judgment Standard

A court will grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c); citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The court is required to "construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Morfin v. City of E. Chi., 349 F.3d 989, 996-97 (7th Cir. 2003) (internal quotations and citations omitted). But the nonmoving party has the burden of coming forward with specific facts from the record which show that there is a genuine issue of material fact. Id. at 997 (citing Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000)). In a motion for summary judgment, the court "may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne, 337 F.3d at 770 (citations omitted). "Rather, `[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Id. (citation omitted). If a reasonable jury could return a verdict in favor the nonmovant, summary judgment should not be granted. Id. (citation omitted).

IV. Probable Cause Qualified Immunity

Mr. Miller alleges that Deputy Sims arrested him without probable cause. Defendants argue that there was probable cause to arrest Mr. Miller, and in the alternative, even if Deputy Sims lacked probable cause for the arrest, he is entitled to qualified immunity.

In order to determine if Deputy Sims is entitled to qualified immunity, the court first must determine whether the facts, taken in the light most favorable to Mr. Miller, demonstrate that Deputy Sims violated Mr. Miller's constitutional right. Payne, 337 F.3d at 775 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001); Beauchamp v. City of Noblesville, 320 F.3d 733, 742 (7th Cir. 2003)). If a constitutional right was violated, the court must then ask whether the constitutional right was clearly established at the time Mr. Miller was allegedly injured. Id. (citing Saucier, 533 U.S. at 201; Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003)). "The relevant inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation the officer confronted." Id. at 775-76 (citing Saucier, 533 U.S. at 202). When engaging in this two part inquiry, the court must keep in mind that "the doctrine of qualified immunity leaves `ample room for mistaken judgments' by police officers." Id. at 776 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

A police officer has probable cause to arrest if the officer reasonably believes, "in light of the facts and circumstances within [his] knowledge at the time of the arrest," the suspect committed an offense. Id. (citing United States v. Hayes, 236 F.3d 891, 894 (7th Cir. 2001)). The test for probable cause is an objective test. Id. The court must determine "whether probable cause existed on the facts as they appeared to a reasonable police officer, even if the reasonable belief of that officer is ultimately found to be incorrect." Id. (citing Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998)). Furthermore, "[i]n cases involving the issue of whether probable cause existed to support an arrest, `the case should not be permitted to go to trial if there is any reasonable basis to conclude that probable cause existed.'" Thompson v. Wagner, 319 F.3d 931, 935 (7th Cir. 2003) (quoting McDonnell v. Cournia, 990 F.2d 963, 968 (7th Cir. 1993)).

Defendants argue that Deputy Sims' arrest of Mr. Miller was not solely based on the statements of Mrs. Miller. Deputy Sims also had knowledge that Mr. and Mrs. Miller's daughter Ariane had filed a complaint of battery against Mr. Miller. Mr. Miller, however, contends that Deputy Sims arrested Mr. Miller solely based upon the statements of Mrs. Miller and the alleged physical signs of injury. At a custody or marital dissolution hearing, Deputy Sims testified that he did not talk to Ariane before arresting Mr. Miller. ( See Defs.' Ex. 4B, Sims Test. at 186.) Furthermore, at oral argument, Defendants conceded that there is no evidence Deputy Sims knew about Ariane's complaint against Mr. Miller. Again, because the court must construe all facts in the light most favorable to the nonmovant, the court must infer that at the time of the arrest Deputy Sims did not know that Ariane filed a complaint against Mr. Miller.

Defendants at oral argument argued that the knowledge of Ariane's complaint against Mr. Miller should be imputed to Deputy Sims. In some situations, the knowledge of one police officer may be imputed to another officer. For example, "[w]hen law enforcement officers are in communication regarding a suspect, the knowledge of one officer can be imputed to the other officers under the collective knowledge doctrine." United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000) (citing United States v. Hensley, 469 U.S. 221, 232-33 (1985); Tangwall v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998); United States v. Nafzger, 974 F.2d 906, 910-11 (7th Cir. 1992)). In the present case, however, there is no evidence that Deputy Sims had communicated with any officer with knowledge of Ariane's complaint. Additionally, "when a superior officer, in communication with an inferior officer, orders that officer to make an arrest, it is proper to consider the superior's knowledge in determining the overall reasonableness of the police conduct as it relates to probable cause." United States v. Swift, 220 F.3d 502, 508 (7th Cir. 2000) (citing United States v. Edwards, 885 F.2d 377 (7th Cir. 1989); United States v. Woods, 544 F.2d 242 (6th Cir. 1976)). The record establishes that Deputy Sims telephoned his captain, but the court must infer that the captain did not know of Ariane's complaint without evidence demonstrating otherwise.

There is a dispute as to what facts were within Deputy Sims' knowledge at the time of the arrest. However, the undisputed evidence of the facts within Deputy Sims' knowledge at the time of arrest follow: On Sunday June 18, 2000, Deputy Sims was dispatched to Mr. Miller's residence for a welfare check. Upon arriving, Deputy Sims observed Mrs. Miller walking up the driveway. Upon exiting his vehicle, Deputy Sims approached Mrs. Miller and observed red marks under her left eye and on her neck. Deputy Sims took Mrs. Miller's statement as to what had occurred and reviewed with her the Misdemeanor Battery Affidavit. Mrs. Miller advised Deputy Sims that Mr. Miller, a gentleman who was 6'5" tall and weighed approximately 265 pounds, repeatedly punched Mrs. Miller in the face and eye, a woman approximately 5'3" tall and weighing approximately 120 pounds. Deputy Sims then entered the residence to arrest Mr. Miller for battery. Additionally, on Mrs. Miller's Misdemeanor Battery Affidavit, Deputy Sims indicated that he believed probable cause existed because 1) there were visible signs of injury or impairment to the victim, which he described in writing as "red mark on neck red mark on left eye," and 2) Mrs. Miller's demeanor indicated abuse, which Deputy Sims described in writing as "Very afraid[;] [s]tated he would kill her for this." (Defs.' Ex. 4C, Julie Miller Misdemeanor Battery Affidavit.) Based on the visible signs of physical injury on Mrs. Miller and Mrs. Miller's statements, it was reasonable for Deputy Sims to believe that Mr. Miller committed the offense of battery.

Plaintiff argues that because this was an alleged domestic abuse violence situation, Deputy Sims should have conducted some type of investigation other than taking the word of the alleged victim. When an officer "receives information sufficient to raise a substantial chance of criminal activity from a person whose truthfulness he has no reason to doubt, that information is sufficient to establish probable cause." Smith v. Lamz, 321 F.3d 680, 685 (7th Cir. 2003) (citing Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998)). "The complaint of a single witness or putative victim alone generally is sufficient to establish probable cause to arrest unless the complaint would lead a reasonable officer to be suspicious, in which case the officer has a further duty to investigate." Beauchamp, 320 F.3d at 743 (citations omitted).

Mr. Miller argues that Deputy Sims lacked probable cause to arrest him because the arrest for battery was primarily based on the statements of Mrs. Miller, who Mr. Miller claims was not a reasonable or reliable witness. Plaintiff contends that Deputy Sims should have been suspicious of Mrs. Miller's complaint for two reasons. First, Mr. Miller argues that Mrs. Miller's version of the events of the fight, that Mr. Miller repeatedly punched her in the eye and face, was not supported by her injuries. When Deputy Sims approached Mrs. Miller, he observed her injuries to consist of red marks on her left eye and neck. Plaintiff argues that if Mrs. Miller's version of the facts was true, a reasonable person would expect Mrs. Miller's face to be severely damaged, particularly given the fact that Mr. Miller is 6'5" tall and weighs 265 pounds.

The court disagrees. Bruising and swelling from battery may not develop until days after the battery takes place, if at all. Deputy Sims observed Mrs. Miller only hours after the altercation. Moreover, to require a police officer to conduct a detailed physical examination during the interview of a putative witness in order to determine whether a putative victim's injuries match her story precisely is to require too much. It is a police officer on the scene of a domestic disturbance who must determine probable cause to arrest, not an emergency room physician. A police officer is not expected to be an expert on the effect of blunt trauma to the human anatomy.

Second, Mr. Miller argues that Deputy Sims should have regarded Mrs. Miller's statements as suspicious because there was a good chance that Mrs. Miller was pursuing a private grudge against Mr. Miller. The evidence Mr. Miller cites to support this argument is the alleged fact that Mrs. Miller did not report the alleged battery until after Mr. Miller informed her that he wanted a divorce. As discussed in the motion to strike, it is unclear whether Deputy Sims knew that Mr. Miller had told Mrs. Miller that he wanted a divorce only the night before. However, because the court must resolve all questions of fact in favor of the nonmovant in a motion for summary judgment, the court must assume that Mr. Miller told Deputy Sims before his arrest that the previous night he had told Mrs. Miller that he wanted a divorce.

But the Seventh Circuit does not require a flawless account from a completely unbiased witness or putative victim for probable cause. In Spiegel v. Cortese, 196 F.3d 717 (7th Cir. 1999), cert. denied, 530 U.S. 1243 (2000), the Seventh Circuit stated:

Of course it is true that where information from or about a putative victim of crime would lead a reasonable officer to be suspicious, the officer should conduct further investigation. But police officers need not exclude every suggestion that a victim is not telling the truth. Many putative defendants protest their innocence, and it is not the responsibility of law enforcement officials to test such claims once probable cause has been established. Consequently, the law does not require that a police officer conduct an incredibly detailed investigation at the probable cause stage. Accordingly, the inquiry is whether an officer has reasonable grounds on which to act, not whether it was reasonable to conduct further investigation. Nothing suggests that a victim's report must be unfailingly consistent to provide probable cause. The credibility of the putative victim or witness is a question, not for police officers in the discharge of their considerable duties, but for the jury in a criminal trial. We refuse to require law enforcement officers to delay arresting a suspect until after they have conclusively resolved each and every inconsistency or contradiction in a victim's account.

Spiegel, 196 F.3d at 724-25 (internal quotations, citations, and alterations omitted). Although the fact Mr. Miller had told Mrs. Miller that he wanted a divorce the night before she called the police is a factor the trier of fact may consider in determining her credibility, it is not a factor that makes Deputy Sims reliance on her account of the facts unreasonable for purposes of probable cause to arrest.²

2 At oral argument, Plaintiff argued that Mr. Miller asked Deputy Sims to test Mrs. Miller for alcohol intake. However, upon rechecking the record, Plaintiff withdrew the assertion at the end of oral argument. Accordingly, Plaintiff's assertion is not included in the court's analysis.

Mr. Miller's second argument raises still another issue. Mr. Miller would not have been able to tell Deputy Sims that he had told his wife about his plans to divorce her until after Deputy Sims entered the house to arrest Mr. Miller. At the time Deputy Sims entered the residence, he already had decided to arrest Mr. Miller, and given the information within his knowledge at the time, Deputy Sims had probable cause to make the arrest. And, in the Seventh Circuit, it is clear that once Deputy Sims had probable cause to arrest, there was no further duty to investigate. See id. at 723 ("[T]his court has emphasized that once probable cause has been established, officials have `no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.'" (quoting Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995))). However, the Seventh Circuit has also held that "[t]he continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause." BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (citing People v. Quarles, 410 N.E.2d 497 (Ill.Ct.App. 1980)). If the court takes the facts as alleged by Mr. Miller, then after entering the residence, Deputy Sims would have seen that Mr. Miller had visible injuries to his face, back, lip, and the side of his torso, which included scratches, bruises, and lacerations. "A police officer may not close her or his eyes to facts that would help clarify the circumstances of an arrest." Id. Plaintiff urges that even though Deputy Sims had probable cause when he entered the residence, the probable cause was dissipated by the additional evidence that became evident to him while making the arrest. Given the nature of Mr. Miller's injuries, compared to the relatively less severe apparent injuries of Mrs. Miller, one can argue that it may have been unreasonable for Deputy Sims to proceed with the arrest.

Nonetheless, the court finds that Deputy Sims had probable cause to arrest Mr. Miller. Mr. Miller was arrested for Class A Misdemeanor Battery. The Indiana battery statute states, in relevant part:

(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:

(1) a Class A misdemeanor if:

(A) it results in bodily injury to any other person. . . .

Ind. Code Ann. § 35-42-2-1 (2003). Although there was some evidence, of which Deputy Sims had knowledge, tending to suggest that Mr. Miller might be a victim in the dispute, there was still sufficient evidence that Mr. Miller had committed the crime of battery to justify his arrest. It should be noted that, if Mr. Miller's account of the facts is true, the court is troubled by the fact that Defendants refused to take Mr. Miller's statement or take pictures, given the fact that Mr. Miller also had visible signs of injury. Another approach may have been to arrest both Mr. Miller and Mrs. Miller for battery, as recognized by Deputy Sims when he called his captain and asked whether he should arrest both Mr. and Mrs. Miller. However, these are more equal protection concerns, as recognized by Plaintiff. With respect to the issue of probable cause, even after construing all the facts in the light most favorable to Mr. Miller, the court cannot find that it was lacking.

Because the court finds that Mr. Miller's constitutional right regarding probable cause was not violated, the court need not proceed to the second step of the test. Defendants' Motion for Summary Judgment on qualified immunity will be GRANTED. ³

3 It appears to the court that Mr. Miller's custom and policy assertions regarding the Sheriff's potential liability for the arrest by Deputy Sims were focused on the equal protection theory, not the lack of probable cause theory. So, the court does not address whether a custom or policy to arrest suspects without probable cause existed. Regardless, because the arrest was not a constitutional violation, the Sheriff cannot be liable.

V. Equal Protection A. Res Judicata/Waiver

Defendants argue that Mr. Miller is precluded from raising the issue of selective prosecution, which is the underlying basis for his allegation of constitutional injury, because the claim could have been raised during Mr. Miller's state court criminal trial. Federal courts are required by the Full Faith and Credit Act to give state court judgments the same preclusive effect as they would have in state court. Licari v. City of Chi., 298 F.3d 664, 666 (7th Cir. 2002) (citations omitted); accord Pliska v. City of Stevens Point, 823 F.2d 1168, 1172 (7th Cir. 1987) (citations omitted). This rule also applies when a plaintiff, in federal court, raises a federal constitutional challenge in a civil rights action, and the claim was not raised in an earlier state court proceeding, although it could have been. Pliska, 823 F.2d at 1172 (citations omitted). An exception to this rule exists for a plaintiff who did not receive a full and fair opportunity in state court to litigate the claim. Licari, 298 F.3d at 666-67 (citing Pliska, 823 F.2d at 1172). As long as the state court proceedings satisfied the minimum requirements of Due Process, a plaintiff is considered to have been afforded full and fair opportunity to litigate the claim. Id.

An Indiana court requires that four elements be met in order for res judicata to bar a claim:

"(1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies."

In re Marriage of Dean, 787 N.E.2d 445, 448-49 (Ind.Ct.App. 2003) (quoting Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind.Ct.App. 2000)).

Mr. Miller was found not guilty of battery in Indiana state circuit court, and such judgment was entered. The first two elements of the test have been satisfied and are not contested. Next, although Mr. Miller did not raise the claim of selective prosecution in his state court proceeding, it appears that he could have. Indiana courts recognize that the claim of selective prosecution can serve as the basis for dismissal of a criminal action. Albright v. State, 501 N.E.2d 488, 497 (Ind.Ct.App. 1986). The claim should be made by written motion and a hearing is set, removed from the jury, in which both sides can present evidence. Id. The court's findings are then subject to appellate review. Id.

The fourth element of the res judicata test requires that the earlier controversy to have been adjudicated between the same parties or a party in privity to one of the parties. Defendants were not parties to the state court trial. Defendants argued in their Brief that the fourth element is satisfied because Defendants were in privity with the State of Indiana. (Defs.' Mem. Supp. Mot. Summ. J. at 8.) "The term `privity' describes the relationship between persons who are parties to an action and those who are not parties to an action but whose interests in the action are such that they may nevertheless be bound by the judgment in that action." Small, 731 N.E.2d at 27-28 (citing Marsh v. Rodgers ( In re Rodgers), 659 N.E.2d 171, 173 (Ind.Ct.App. 1995)). "The term includes those who control an action, though not a party to it, and those whose interests are represented by a party to the action." Id. at 28. Several courts have held that there is no privity between a State and police officers or between a State and the Sheriff in state criminal proceedings. See Kraushaar v. Flanigan, 45 F.3d 1040, 1050-51 (7th Cir. 1995); McCoy v. Hernandez, 203 F.3d 371, 374-75 (5th Cir. 2000); Tierney v. Davidson, 133 F.3d 189, 195 (2d Cir. 1998); Wilson v. Attaway, 757 F.2d 1227, 1237 (11th Cir. 1985); Duncan v. Clements, 744 F.2d 48, 51-53 (8th Cir. 1984); McCurry v. Allen, 688 F.2d 581, 587 (8th Cir. 1982); Davis v. Eide, 439 F.2d 1077, 1078 (9th Cir.), cert. denied, 404 U.S. 843 (1971).

At oral argument, Defendants responded to the privity obstacle by arguing that under the doctrine of collateral estoppel, privity is not necessary. In Indiana, issue preclusion "acts to bar a subsequent attempt to relitigate the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and is presented in a subsequent action." Endres v. Ind. State Police, 794 N.E.2d 1089, 1094 (Ind.Ct.App. 2003) (citing Mendenhall v. City of Indianapolis, 717 N.E.2d 1218, 1225 (Ind.Ct.App. 1999), trans. denied). Additionally, issue preclusion only applies to matters that were expressly adjudicated in the earlier proceeding. Id. The Seventh Circuit has explained that "[t]he crucial distinction between the preclusive effect of res judicata and collateral estoppel is that res judicata bars not only those issues which were actually decided in the prior action but also any issues which could have been raised." Lee v. City of Peoria, 685 F.2d 196, 198 (7th Cir. 1982) (citing Whitley v. Seibel, 676 F.2d 245, 248 (7th Cir. 1982)).

Even if the equal protection claim had been decided in state court, the question of Mr. Miller's equal protection right would not have been necessary to the state court judgment. In Donald v. Polk County, a case on which Defendants heavily rely, the parents of a child who was taken by the Department of Social Services filed suit against state officials under § 1983, alleging, among other things, that the officials violated their constitutional right to privacy and family life by "conspiring to `perpetrate a fraud upon the court,'" "by using their investigation, reports, petitions to the court, and sworn testimony to create the false impression that [the child] was being abused." 836 F.2d 376, 381 (7th Cir. 1988). The Seventh Circuit found held that under Wisconsin law, the doctrine of collateral estoppel barred the claim because the state court jury, which found that the child had been physically abused, "necessarily" decided the question of whether the defendants' testimony, petitions, and reports were fraudulent because otherwise the defendants would not have met their burden of proof. Id. at 382. In Donald, because the plaintiffs could have raised the alleged fraud in the state court proceeding, but failed to, they were estopped from raising it in a subsequent civil suit. Id. In the present case, it is clear that it was not necessary to the state court judgment that the court find that Mr. Miller's equal protection rights had not been violated.

Additionally, in Lee v. City of Peoria, the Seventh Circuit's application of res judicata to the plaintiff's claim that was not raised in state court was, in part, supported by the fact that if the plaintiff succeeded in the federal court § 1983 claim, the state court judgment would be nullified or impair rights that were established in the state court action. 685 F.2d at 201 (discussing approach of Restatement (Second) of Judgments § 22(2)(b)); see also Wright Miller, Federal Practice and Procedure § 4471.2 n. 102 ("Although failure to advance a defense in a prior action ordinarily does not preclude a subsequent action based on the same facts, preclusion is applied when successful prosecution of the second action would nullify the initial judgment or impair rights established by it." (explaining Lee v. City of Peoria)). In the present action, a judgment favorable to Mr. Miller would not threaten the results of the earlier state court adjudication because the earlier state court adjudication resulted in a favorable outcome to Mr. Miller.

Defendants also argue that Mr. Miller is prevented from bringing his claim of selective prosecution in the present action because he waived the issue by not raising it in his state court criminal proceeding. The authority that Defendants cite for this argument, Ind. Dep't of Pub. Welfare v. Chair Lance Serv., Inc., 523 N.E.2d 1373, 1379 (Ind. 1988), holds that where a party does not raise an issue during the "principal litigation," the issue is waived for subsequent proceedings. Specifically, in Chair Lance, the court held that where a party petitioned for attorney fees after the principal suit was fully adjudicated, the party could not litigate the issue in a subsequent proceeding. Mr. Miller's state court criminal trial cannot be characterized as the principal proceeding to which this present suit, a § 1983 civil rights action, is a subsequent proceeding. The specific waiver doctrine raised by Defendants is inapplicable to the present case.

B. Policy or Custom ⁴

4 Plaintiff failed to raise this argument in his Brief; Defendants also failed to address it — aside from asserting that the Bartholomew County Sheriff's Department does not have an express policy of arresting the male in a cross complaint domestic violence situation, Defendants presented no analysis of case law. However, at oral argument, and after the court questioned Plaintiff about the claim during an informal telephone conference several days before the argument, Plaintiff acknowledged that it intended to allege an unconstitutional policy/custom claim against the municipality. The court therefore addresses this argument in this Entry based on Plaintiff's assertions at oral argument.

Mr. Miller has brought action against Sheriff Whipker in his official capacity, and alleges that the Bartholomew County Sheriff's Department maintains a double standard based on gender in dealing with domestic battery complaints. An official capacity suit against the Sheriff of a county is understood as a claim against the county. Luck v. Rovenstine, 168 F.3d 323, 325 (7th Cir. 1999) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991); Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)); Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992) (citations omitted).

Section 1983 liability cannot be imposed against a municipality based on a theory of respondeat superior. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (citing Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999) (citing Monell, 436 U.S. at 691)). Instead, "`[i]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.'" Id. (quoting Monell, 436 U.S. at 694). Thus, in order to bring suit against Bartholomew County, Mr. Miller must demonstrate that a municipal policy or custom caused the deprivation of his constitutional rights under the Fourteenth Amendment. Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003) (citing Kujawski v. Bd. of Comm'rs, 183 F.3d 734, 737 (7th Cir. 1999)). Mr. Miller must demonstrate "the requisite culpability (a `policy or custom' attributable to municipal policymakers) and the requisite causation (the policy or custom was the `moving force' behind the constitutional deprivation)." Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002) (citations omitted). In sum, to establish liability against Bartholomew County, there are three things Mr. Miller must show: "(1) he suffered a deprivation of a federal right; (2) as a result of either an express municipal policy, widespread custom, or deliberate act of a decision-maker with final policy-making authority for the [municipality]; which (3) was the proximate cause of his injury." Ienco v. City of Chi., 286 F.3d 994, 998 (7th Cir. 2002) (citing Monell, 436 U.S. at 690-91; Frake v. City of Chi., 210 F.3d 779, 781 (7th Cir. 2000), cert. denied, Angarone v. Ienco, 537 U.S. 1028 (2002)). For the purpose of this discussion, an underlying constitutional injury is presumed.

An unconstitutional policy or custom may take any one of the following three forms: "(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a `custom or usage' with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority." Rasche, 336 F.3d at 597-98 (citing Palmer, 327 F.3d at 594-95).

1. Express Policy

Mr. Miller argues that Deputies of the Bartholomew County Sheriff's Department are trained, and thus have an express policy, of arresting the man in cross complaint domestic violence situations when both a man and a woman complain. The evidence presented by Plaintiff of such an express policy consists of training materials for the Department for domestic calls and the testimony of Deputy Sims.

Mr. Miller argues that his case is precisely like the case in Myers v. County of Orange, 157 F.3d 66. In Myers, the Second Circuit Court of Appeals upheld a jury award against the County of Orange, for the district attorney's office, and the City of Port Jervis, for the police department, after the jury had found that both the defendants maintained a "first come, first served" complaint policy. The Second Circuit held that there was evidence that the defendants had express unconstitutional policies. The district attorney's office had a written policy that stated: "Police are directed not to entertain cross complaints" until the first complaint had been dismissed or prosecuted. Id. at 69. The police department, according to testimony provided by at least three police officers, maintained a similar, but unwritten, policy. Id. The Second Circuit held that the first come, first served policies violated the Fourteenth Amendment equal protection clause because there was no rational basis for such a policy.

In contrast to the evidence of express policy in Myers, Mr. Miller has not presented sufficient evidence of the existence of an express policy. Deputy Sims testified at a hearing in a custody or marital dissolution matter involving the Millers that the legislature requires him to treat men and women differently.

Q. Excuse me sir. That state mandates that when [there are] visible signs of injuries, someone's got to be arrested, correct?

A. Correct.

Q. Does that apply to both men and women?

A. Not necessarily.

Q. You mean this standard, you have one standard for the guy, oh I guess we do, golly moses. We have one standard for the guy and one standard for the woman don't we?

A. That's what the legislature and the courts have decided, yes.

( See Defs.' Ex. 4B, Sims Test. at 200-01.) Deputy Sims' testimony, however, is much more ambiguous than the testimony of the three police officers in Myers because in the present case there is no indication whether Deputy Sims was expressing his own belief or alleging that the police department maintains a policy of treating men and women differently. Furthermore, in Myers, the Second Circuit noted that at least three police officers testified to the existence of a policy. The evidence in the present case consists only of Deputy Sims' ambiguous testimony.

Next, the written materials submitted by Plaintiff do not sufficiently demonstrate the existence of an express policy on the part of Bartholomew County of arresting only the man. Plaintiff points specifically to four parts of the domestic violence training materials that Plaintiff received during discovery. First, Plaintiff cites to the following statement in the materials: "Dual arrest lessens the state's ability to prosecute the case effectively, often causing the case to be dismissed." (Pl.'s Ex. C, Training Materials at tab 2, p. 8.) This sentence is ambiguous. Unlike the policy in Myers, the statement in the present case is not written as a directive. The statement cautions that dual arrests may lessen the ability of the state to prosecute either complaint, but the statement does not direct police officers to arrest only one complainant.

Moreover, the sentence must be examined in context. The sentence is found in the section of the training materials addressing problems relating to dual arrests. The introduction to the section sets out the context of the problem: "With arrest being the most effective deterrent to domestic violence, many states have adopted pro-arrest policies or mandatory arrest laws. A significant problem that can arise as a result of these initiatives is an increase in the number of dual arrests." (Pl.'s Ex. C, Training Materials at tab 2, p. 8.) The introduction further states: "While a small number of domestic violence incidents do involve mutual combatants and dual arrest is appropriate, experience has shown that if both parties have injuries that most often one party has acted in self-defense." ( Id.) The dual arrest section is then divided into two parts: 1) "Serious consequences of making an inappropriate dual arrest" and 2) "Scrutinizing Dual Arrest Situations." ( Id.) The sentence cited by Plaintiff is in the former. ( Id.) The two other serious consequences listed include the risk of liability for false arrest and further victimization of the victim. ( Id.) The latter part of the dual arrest section more specifically addresses the requirements and procedures for making a dual arrest. For example, the materials state: "Dual arrests can occur when officers have probable cause to believe that both parties have committed family violence crimes against each other." ( Id.) Additionally, another section states: "When complaints are made by two or more opposing parties, a police officer must evaluate each complaint separately in determining whether probable cause exists to make an arrest." ( Id. at 9.) Thus, the dual arrest section of the materials educates officers about the consequences of making inappropriate dual arrests and also trains officers to know when a dual arrest is appropriate. The section does not prohibit officers from making dual arrests or, more relevantly, from arresting the male in a cross-complaint situation between a male and female.

The second and third sections of the training materials to which Mr. Miller directs the court's attention are two hypothetical arrest scenarios. The first scenario reads as follows:

Two officers respond to a domestic. Upon investigation, the officers learn that the parties involved are not married. They note in the living room a TV with a broken screen. In the kitchen, several chairs are overturned, glass is on the floor, and the telephone is off the wall. The female states that she has been cut with a broken bottle. The officers observe that she is having difficulty standing. Scratches and bite marks on the inside of the arm of the male are observed and noted by the officers. The female tells the officer that she was injured by her husband and that she tried to "get him away from me" during the fight. The male party shows the officer his scratches and tells him that his girlfriend attacked him.

a) Based on the class' definition of a "good arrest," which party(ies) have committed an illegal act? ( Answer: The man)

(b) Which party(ies) should be arrested? ( Answer: The man)

(Pl.'s Ex. C, Training Materials at tab 2, pp. 7-8.)

The second scenario cited by Mr. Miller reads as follows:

You and another officer respond to a call of a family disturbance. When you arrive, you overhear shouts and crying. After knocking on the door, you are admitted by a young teenage girl. Upon entering the house, a woman comes out of the kitchen holding a wad of paper towels to her nose.

You ask the woman if she would like to sit down. While you stay with her, the other officer enters the kitchen (keeping within your sight) and sees a man running his hand under the kitchen faucet. The man has a small gash on his forearm, and he is mumbling to himself.

The other officer tells the man to remain calm and offers to assist him with the cut on his hand When he asks him what happened, the only statement the man makes is that he was defending himself.

As the other officer helps the man in the kitchen stop the bleeding, you ask the woman in the other room what happened. She explains that they had been eating supper when a discussion about what they were having to eat led to an argument. The man had thrown a glass of water in her face. (You notice that her sweater is wet.) She further states that she left the table and threw a rag at the man demanding that he wipe up the mess. He threw the rag back at her and ordered her to clean up the mess herself and shut up.

You make a mental not [sic] that the woman is speaking in a raspy voice and has red eyes. She continues by saying that, when she didn't respond, the man got up, went behind her, grabbed her around the neck, and started strangling her. She scratched his hands, trying to get him to release her. He finally let her go and hit her with the back of his hand, causing her nose to bleed. You don't see any visible marks on the woman's neck.

You then inquire about whom was sitting where at the table and ask who called the police. the woman describes how everyone was seated and said that her daughter ran into the bedroom during the fight and called 911. She also said that her daughter had told her that she had the police, but neither had told the man.

You confer with your partner in the doorway between the kitchen and the front room and discuss what you have surmised. While your partner stands in the doorway, you enter the kitchen and observe the following: 1) the linoleum on the floor and the table are both wet and the chair overturned where the woman stated she was sitting; 2) there are scuff marks on the floor between the sink and the table; and 3) there is a rag on the floor.

You then interview the daughter and ask her when she called the police. She states that she ran to the phone as soon as her stepfather started strangling her mom.

Note: Ask the students to answer the following questions. Record their responses on a flip chart or board.

1. What statements of the following persons are of most importance to your investigation?

a) Statements of the man: ( Answer — the man stated that he was defending himself.)

b) Statements of the woman: ( Answer — the woman stated that the man got up and grabbed her from behind around the neck, strangling her; she scratched him, trying to get him to release her; and he hit her with the back side of his hand; causing her nose to bleed.)

c) Statements of the daughter: ( Answer — the daughter stated that she called 911 as soon as she saw her stepfather start strangling her.)

2. What type of injuries did you observe? Where [sic] they offensive or defensive injuries?

a) Husband: ( Answer: gash on backside of left hand and scratches on hands. Gash is offensive, while scratches are defensive.)

b) Wife: ( Answer: Nosebleed, raspy voice and red eyes are offensive.)

3. What articles of clothing could be evidence in this case? ( Answer: the sweater.)

4. What weapons were used? ( Answer — man's hands.)

5. What facts and observations helped you reconstruct the crime scene? (Answer: 1) note what you see: the floor and table are both wet, the chair is overturned where the woman stated she was sitting, there are scuff marks on the floor between the sink and table, and there is a rag on the floor; 2) note who was sitting where at the table; and 3) note that the woman was speaking with a raspy voice and had red eyes. [sic]

6. What other information would you want to obtain in your investigation? ( Answer — copy of 911 call, written or recorded interview of neighbors, information about past complaints, photographs of injuries and crime scene, and investigation into whether the woman normally spoke with a raspy voice.)

7. Would you consider the woman's scratching of her husband a criminal act or self-defense? ( Answer — self defense.)

8. Do you have enough probable cause to make an arrest? (Answer — yes.)

9. What evidence would you present in court? ( Answer — written or recorded statements from the man, woman, and daughter, and other possible witnesses, including excited utterances; tape of 911 call; photographs of injuries and crime scene; information about whether the woman normally spoke in a raspy voice or has red eyes; and follow-up photographs taken two or three days after the battery which may show additional injuries.)

(Pl.'s Ex. C, Training Materials at tab 4, pp. 16-19.)

Mr. Miller argues that the Bartholomew County Sheriff's Department Deputies are trained to always suspect that the man is the aggressor when responding to domestic violence situations. With respect to the first hypothetical, although the scenario advises the police officer to arrest "The man," there is no indication that the man should be arrested because he is a man and the other party a woman. Rather, it appears that because the man only has defensive wounds, and there is no other evidence that he was battered, there is insufficient probable cause to arrest the woman.

Additionally, the second scenario involves not just a situation where both the male and female parties of a domestic violence call allege that they are the victim; rather, in this scenario, a third party, the daughter, witnesses the man strangling the woman. Although in both of the scenarios Plaintiff has cited it is "the man" who is the aggressor, this fact alone falls short of establishing that Bartholomew County maintains a policy of arresting the man and not the woman. The fact that the aggressor in all of these scenarios is male is likely a reflection of the fact that in the overwhelming number of cases, women are victims of domestic violence. See U.S. Dep't of Justice, Bureau of Justice Statistics Factbook, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends 1, 3 (1998) ("More than 960,000 incidents of violence against a current or former spouse, boyfriend, or girlfriend occur each year, and about 85% of the victims are women.").

Finally, Mr. Miller cites generally to a slide show presentation that was produced by Defendants as part of the domestic violence training materials. The slide show discusses the issue of domestic violence overwhelmingly in the context of women being the victim and men being the aggressor. For example, the title of the slide show is "Domestic Violence: It's Not Just Her Problem, It's Ours." (Pl.'s Ex. C, Slide Show, set 1, at 1.) On the eighth slide, a picture of a battered woman is shown, and under the picture, "Fact: One in three women are likely to experience violence in intimate relationships." ( Id. at 3.) In a slide entitled "Myths and Facts About Domestic Violence," the slide states as a myth, "Violent men cannot control their violence," and as a fact, "Violent men use this as an excuse, however, violence is frequently premeditated." ( Id. at 5.) On the same page, the next slide continues, "Myth: Women enjoy being abused." ( Id.) The next slide after that states: "Myth: A woman can always leave if she really wanted to. Fact: Abused women are usually constrained from leaving." ( Id.) Another slide shows a picture of a battered woman and asks: "Is this your Wife, Mother, Sister, Niece, Friend, Co-Worker, or You." ( Id. at 13.) Only one slide in the slide show addresses the issue of domestic battery against victims who are not female: "Women are typically the victims. BUT NOT ALWAYS." (Pl.'s Ex. C, Slide Show, set 2, at 3.)

Plaintiff argues that the slide show sends the message that domestic abuse victims are female and that men are the aggressors. It is true that the overwhelming emphasis of the slide show appears to be on women as the victims of domestic violence. Although there is one slide that addresses the fact that women are not always the victims, the general theme of the slide show appears to be that domestic abuse is "Her" problem. Nevertheless, this emphasis on women as the victim of domestic abuse in the slide show may, again, reflect the fact that overwhelmingly women are the victims of domestic violence. The slide show does not state or suggest that when police officers confront a domestic violence situation where both the man and woman claim to be the victim, the man should be arrested.

Simply put, the evidence Mr. Miller has proffered falls short of demonstrating the existence of an official policy. See McNabola v. Chi. Transit Auth., 10 F.3d 501, 511 (7th Cir. 1993) (overturning jury finding that CTA had a policy of terminating white per diems because, despite jury finding, there was no such "official" command by CTA). The training materials submitted by Plaintiff possibly suggest that the Bartholomew County Sheriff's Department does not sufficiently address that men are also victims of domestic violence in its training program; however, this possible shortcoming is not equivalent to an official policy that directs police officers to arrest the male complainant in cross complaint situations.

2. Custom or Practice

If Mr. Miller does not have sufficient evidence of a formal policy, he can still demonstrate municipal liability by demonstrating the existence of a widespread practice or custom. McNabola, 10 F.3d at 511. " Monell authorizes the imposition of liability against a municipal entity `for constitutional deprivations visited pursuant to governmental "custom" even though such custom has not received formal approval through the body's official decisionmaking channels.'" Id. (citing Monell, 436 U.S. at 690-91; Pembaur v. City of Cincinnati, 475 U.S. 469, 482 n. 10 (1986)). A custom has been defined as "a widespread practice that, although not codified in written law or regulation, is so permanent and well-settled that it has the force of law." Looper Maint. Serv., Inc. v. City of Indianapolis, 197 F.3d 908, 912 (7th Cir. 1999). Although the practice of unconstitutional conduct may lack official approval, it can still provide the basis of municipal liability if the plaintiff can demonstrate that the policymaker acquiesced to the practice. McNabola, 10 F.3d at 511 (citing Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1326 (7th Cir. 1993); Felton v. Bd. of Comm'rs, 5 F.3d 198, 203 (7th Cir. 1993)). Thus, Mr. Miller can demonstrate municipal liability "`by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned, thus, in either event adopting, the misconduct of subordinate officers.'" Novack, 226 F.3d at 531 (quoting Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995)).

Mr. Miller attempts to present evidence of a widespread practice in the form of redacted copies of investigation files of domestic battery cases in the year 2000 for Bartholomew County. As mentioned above in the motion to strike, the police reports do not demonstrate that it is the practice of the Bartholomew County Sheriff's Department to utilize a double standard in domestic violence cases. Thus, the only evidence of a constitutional violation Mr. Miller is able to present, presumably, is that of his own arrest. In order to demonstrate a custom, Mr. Miller cannot rely only one example of constitutional violation. "When a plaintiff chooses to challenge a municipality's unconstitutional policy by establishing a widespread practice, proof of isolated acts of misconduct will not suffice; a series of violations must be presented." Palmer, 327 F.3d at 596 (two incidents of unconstitutional conduct too few to establish widespread practice) (citing Jackson, 66 F.3d at 152; Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)); see also Gable, 296 F.3d at 538 (three incidents too few to establish widespread custom); Garrison, 165 F.3d at 572 (plaintiff did not demonstrate city custom of ignoring complaints of sexual harassment where she was unaware of any incidents other than her own). Consequently, Mr. Miller is unable to demonstrate culpability on the part of Bartholomew County by demonstrating custom through widespread practice.

3. Official with Policymaking Authority

In some circumstances, § 1983 municipal liability can be imposed based on a single decision made by a municipal policymaker. Eversole, 59 F.3d at 715 (citing Pembaur, 475 U.S. at 480). But liability does not arise with every action taken by an employee with decisionmaking authority. Id.

"Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. . . . The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable."

Id. (quoting Pembaur, 475 U.S. at 481-83). Mr. Miller's official capacity claim against Sheriff Whipker can survive summary judgment if Mr. Miller can show 1) that Sheriff Whipker was an official with municipal policymaking authority, and 2) a genuine issue of material fact exists concering whether Sheriff Whipker's conduct was the cause of Mr. Miller's equal protection deprivation. See Luck, 168 F.3d at 326.

To determine which official has final policymaking authority, the court must examine Indiana state law. Eversole, 59 F.3d at 716 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)). In Indiana, "the county sheriff is the final policymaker for law enforcement in his or her particular jurisdiction." Id. (citing Delk v. Bd. of Comm'rs, 503 N.E.2d 436, 440 (Ind.Ct.App. 1987); Ind. Code §§ 36-2-13-1 to 36-2-13-14 (Burns 1994)).

With respect to step two, however, there is no evidence on the record that Sheriff Whipker caused the violation of Mr. Miller's equal protection rights. In order to establish municipal liability, Sheriff Whipker must have actually taken part in the constitutional wrongdoing, and not merely failed to have corrected it. Fiorenzo v. Nolan, 965 F.2d 348, 351 (7th Cir. 1992) (no liability; sheriff was out of town when unconstitutional action was ordered and only found out about it afterward); Cygnar v. City of Chi., 865 F.2d 827, 847 (7th Cir. 1989); see also Woods v. City of Mich. City, 940 F.2d 275, 278 (7th Cir. 1991) ("`[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.'" (quoting Pembaur, 475 U.S. at 483 (citing Tuttle, 475 U.S. at 823))).

Mr. Miller has failed to present any evidence demonstrating that Sheriff Whipker took part in his unconstitutional arrest. The record shows that Deputy Sims arrested Mr. Miller, and Deputy Sims received his orders not to take Mr. Miller's statement and not to photograph Mr. Miller's injuries from Captain Schuerman. ( See Defs.' Ex. 4B, Sims Test. at 196-97, 200.) A Captain of the Sheriff's Department is not the final policymaker under Indiana law, and consequently, the Captain's instructions do not demonstrate an unconstitutional policy or custom under the third method. See McNabola, 10 F.3d at 510 ("decisions of an employee without authority to set official policy provide an insufficient basis for the imposition of liability against the governmental entity under section 1983." (citing Praprotnik, 485 U.S. at 123; Pembaur, 475 U.S. at 483)).

Although policymaking authority may be delegated to another by an official who possesses it, Fiorenzo, 965 F.2d at 350 (citing Pembaur, 475 U.S. at 483), there is no evidence on the record that Sheriff Whipker delegated his authority to the Captain. Furthermore, Sheriff Whipker's failure to investigate a subordinate officer's discretionary decisions does not establish that policymaking authority was delegated. See Praprotnik, 485 U.S. at 130. Because Mr. Miller has failed to produce evidence that demonstrates that Sheriff Whipker participated in his arrest or delegated policymaking authority to Captain Shuerman, Mr. Miller cannot prove municipal liability under the third method.

4. Ratification Theory

The Seventh Circuit has recognized that "`[s]upervisory liability may attach . . . where a supervisor, with knowledge of a subordinate's conduct, approves of the conduct and the basis for it.'" Baskin v. City of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998) (quoting Kernats v. O'Sullivan, 35 F.3d 1171, 1182 (7th Cir. 1994) (other citations omitted)). But "the case law has made it clear that a plaintiff cannot establish a § 1983 claim against a municipality by simply alleging that the municipality failed to investigate an incident or to take punitive action against the alleged wrongdoer." Id. (citing Wilson v. City of Chi., 6 F.3d 1233, 1240 (7th Cir. 1993), cert. denied, 511 U.S. 1088 (1994); Cygnar, 865 F.2d at 847). Moreover, the mere failure to correct the unconstitutional action is not enough. Fiorenzo, 965 F.2d at 351. In order to attach liability to the municipality under ratification theory, Mr. Miller must show that Sheriff Whipker knew about the conduct and facilitated it, approved it, condoned it, or turned a blind eye to it in fear of what he might see. Jones v. City of Chi., 856 F.2d 985, 992 (7th Cir. 1988). In other words, Sheriff Whipker must have acted "either knowingly or with deliberate, reckless indifference." Id. at 992-93 (citations omitted).

Mr. Miller has presented evidence in the form of a letter from Sheriff Whipker that demonstrates that Sheriff Whipker learned of the circumstances of Mr. Miller's arrest, and condoned the manner of the arrest. In the letter, Sheriff Whipker states, in relevant part:

I asked Captain Stan Franke to evaluate the officers' investigation concerning the criminal case against Rick Miller. In his information to me, it appears that the Deputies followed proper procedures and protocols thoroughly conducting their investigation.

The officers' [sic] both followed the procedures outlined by the Bartholomew County Prosecutors [sic] Office in domestic violence cases. . . .

. . . The Prosecutors [sic] Office has reviewed this matter and was aware that Julie Miller jumped on Rick Miller and scratched his face. The officers' [sic] did what they were supposed to do in domestic violence cases and investigations. I personally believe that they accomplished this in an unbiased and professional manner and used their nearly forty years of experience to properly investigate it. Their actions were not questioned by the prosecutor's office.

In conclusion, I find it somewhat inflammatory that our deputies base their constitutional responsibilities on whether they like the people they arrest or investigate. . . .

(Pl.'s Ex. B, Oct. 30, 2000 Letter.)

In Kernats, 35 F.3d 1171, the plaintiff in a § 1983 suit alleged that the municipality should be held liable because the police chief ratified a subordinate officer's unconstitutional acts in a letter. The Seventh Circuit affirmed the dismissal of the plaintiff's claim. The Seventh Circuit explained:

Here the Kernats do not allege that Wade observed, directed, ignored, approved, participated in any way, or even knew about the incidents of November 30, December 1, or December 2, 1991, as they were taking place. The complaint simply states that Wade "ratified" O'Sullivan's conduct when he met with the Kernats several days later and when he wrote them a letter attempting to explain and justify O'Sullivan's actions. By this time, of course, any unconstitutional seizure that may have taken place had been accomplished and Wade could have done nothing to undo that fact. Wade's ex post attempt to dissuade the Kernats from taking their case to the media (or the courts) by rationalizing O'Sullivan's behavior is not the type of involvement in a constitutional violation that gives rise to § 1983 liability.

Kernats, 35 F.3d at 1182-83.

Similarly, in the present case, the court cannot find that Sheriff Whipker's letter alone is sufficient to attribute liability to Bartholomew County. There is no evidence that Sheriff Whipker observed, directed, ignored, participated in, or knew about Mr. Miller's arrest until after it took place. Furthermore, the fact that Sheriff Whipker, in a letter responding to Mr. Miller's attorney's request to investigate Mr. Miller's arrest attempted to rationalize the deputies actions in order to dissuade Mr. Miller from filing a lawsuit is insufficient to establish municipal culpability. As in Kernats, Sheriff Whipker's rationalization in the letter is not the type of involvement that gives rise to municipal liability.

Mr. Miller has failed to produce sufficient evidence for a reasonable trier of fact to find liability on the part of the Sheriff's Department under any theory of supervisory liability. Defendants' Motion for Summary Judgment on the equal protection claim will be GRANTED.

VI. Conclusion

For the foregoing reasons, Defendants' Motion for Summary Judgment for qualified immunity with respect to the claim of arrest without probable cause will be GRANTED; and Defendants' Motion for Summary Judgment with respect to the equal protection claim will be GRANTED.