Opinion
IP 99-167-C-T
August 8, 2002
ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
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 to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
The County and State Defendants filed separate Motions for Summary Judgment. Plaintiff opposes both Motions. This court will GRANT Defendants' Motions.
I. Factual and Procedural Background
On August 11, 1997, Kevin James robbed a McDonald's restaurant in Carmel, Indiana. A high-speed police chase ensued, with police following James for nineteen miles on I-465. Marion County Sheriff's Department Sergeant David Durant was off- duty at the time of the chase, but heard about it on his radio. Durant then called his supervisor, Captain Benny Diggs, and asked if he should use the Stinger Spike System at the Harding Street exit of I-465. Diggs conditionally approved the request and Durant positioned his car on the inside lanes of I-465. As James' vehicle approached Durant's position, Durant employed the Stinger Spike System. James' vehicle then swerved and collided with the Bublitzes' Dodge Caravan. As a result of the collision, Rebekah and Nathaniel Bublitz died. Lester Bublitz, individually, and on behalf of the Estates of Rebekah and Nathaniel Bublitz, (the Plaintiffs) brought this suit against Jack L. Cottey, the City of Carmel, Captain Benny Diggs, Sergeant David Durant, Lieutenant Harry Hall, Trooper Gregory Anslow, and Trooper Robert Trimpe, alleging violations of 42 U.S.C. § 1983, 1985, 1986, 1988, the Fourth and Fourteenth Amendments, a claim for damages under the Indiana Constitution, and a claim for attorney's fees. Defendants filed these Motions for Summary Judgment. Plaintiffs oppose the Motions. The court now rules as follows.
The Stinger Spike System is a tire deflation device consisting of hollow spikes that are pushed into tires as a vehicle runs over the stinger. (Kilgrow Aff. ¶ 4.)
The claims against the City of Carmel were dismissed from this lawsuit on November 14, 2000.
In their Response, Plaintiffs contend that this action was brought pursuant to 42 U.S.C. § 1981, 1983, 1985, 1986, 1988, the Fourth Amendment, Fifth Amendment, and the Fourteenth Amendment. In addition, Plaintiffs assert "claims for relief derived from a common nucleus of operative facts which invoke this Court's pendant jurisdiction to consider claims arising under State Law." (Resp. at 2.) A review of their amended complaint shows that, although raised in their original complaint, the Plaintiffs did not raise 42 U.S.C. § 1981 or the Fifth Amendment in their amended complaint. Further, the above quote is taken verbatim from their amended complaint and does not provide adequate notice for whatever state law claim the Plaintiffs are intending to raise. Therefore, the court will not address these issues.
The Defendants also filed a Motion to Strike Plaintiffs' Designation of Expert Witnesses. Given the resolution of the Motions for Summary Judgment, the Motion to Strike will be moot and is DENIED for that reason.
II. Summary Judgment Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
III. County Defendants
The County Defendants, Sheriff Jack L. Cottey, Sergeant David Durant, Captain Benny Diggs, and Lieutenant Harry Hall, have filed for Summary Judgment alleging that they are entitled to judgment in their favor because: (1) their actions did not violate the constitutional rights of the Plaintiffs; (2) they are entitled to qualified immunity; (3) Cottey and Hall were not personally involved in a violation of Plaintiffs' constitutional rights; and (4) there was no failure to train. However, because of this court's resolution of the first issue, the other three contentions need not be addressed.
Liability under 42 U.S.C. § 1983 requires proof that the defendants were acting under color of state law and that the defendants' conduct violated the plaintiff's rights, privileges, or immunities secured by the Constitution or laws of the United States. Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994) (citations omitted). The first step in analyzing a § 1983 claim is to identify the specific constitutional right allegedly infringed.
In this case, Plaintiffs contend violations of both their Fourth Amendment and Fourteenth Amendment rights. The Fourth Amendment provides: "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. VI. Plaintiffs' Fourteenth Amendment claims are brought under the Due Process Clause. Defendants contend that the Plaintiffs' claims must be evaluated under the Fourteenth Amendment standard because no seizure occurred based on County of Sacramento v. Lewis, 523 U.S. 833 (1998). In Lewis, a motorcycle was involved in a high-speed chase with a police car, when the motorcycle lost control and the police car slammed into the motorcycle. The Court determined that there was no search or seizure as is required to invoke the Fourth Amendment because "a police pursuit in attempting to seize a person does not amount to a `seizure' within the meaning of the Fourth Amendment." Id. at 844.
The Plaintiffs contend that the Fourth Amendment standard is the correct one to apply to their claims based on the following language from Lewis:
a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is governmentally caused and a governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied.
Id. The argument continues that the Defendants in this case intentionally used the Stinger Spike System to terminate James' freedom of movement, and caused the Plaintiffs' freedom of movement to be terminated as well.; therefore the Fourth Amendment is applicable. However, the Supreme Court in Lewis was fairly clear, that high-speed chases, in the absence of an actual search or seizure, are not actionable under the Fourth Amendment. The governmental termination of freedom of movement must be intentionally applied to a specific person, in this case, the Plaintiffs. Brower v. County of Inyo, 489 U.S. 593, 595 (1989) ("Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful. This is implicit in the word `seizure,' which can hardly be applied to an unknowing act. The writs of assistance that were the principal grievance against which the Fourth Amendment was directed, did not involve unintended consequences of government action. Nor did the general warrants issued by Lord Halifax in the 1760's, which produced `the first and only major litigation in the English courts in the field of search and seizure,' including the case we have described as a `monument of English freedom' `undoubtedly familiar' to `every American statesman' at the time the Constitution was adopted, and considered to be `the true and ultimate expression of constitutional law.' In sum, the Fourth Amendment addresses `misuse of power,' not the accidental effects of otherwise lawful government conduct."). Here, it is clear that the Defendants did not intend to terminate Plaintiffs' freedom of movement. See Medeiros v. O'Connell, 150 F.3d 164, 169 (2d Cir. 1998) ("[W]here the hostage is hit by a bullet intended for the hostage-taker, the mishap is the unintended consequence of government action, and the governing principle is that such consequences cannot form the basis for a fourth amendment violation.") (quotations and citations omitted); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990). Therefore, the Fourteenth Amendment standard applies to Plaintiffs' claims.
The Fourteenth Amendment, as interpreted by the Supreme Court, provides that:
the touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness, or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective. . . . Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense. . . . To this end, for a half a dcentury now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. . . . [T]he substantive component of the Due Process Clause is violated by executive action only when it can properly be characterized as arbitrary or conscience shocking in a constitutional sense.
Lewis, 523 U.S. 845-47 (citations and quotations omitted).
In this case, Durant and the other Defendants' actions do not "shock the conscience" and therefore, they cannot be held liable under the Fourteenth Amendment. Durant employed the Stinger Spike System in an attempt to terminate the high-speed chase of James. There is no evidence that Durant had any intention of harming the public. James was leading a high-speed chase through Indianapolis, which presented a high potential for harm to innocent bystanders. The Stinger Spike System is advertised as a low-liability stopping device that "saves lives, reduces accidents, slower, shorter pursuits, promotes officer safety." That the Bublitzes got caught in the chase, although tragic, was purely accidental. Durant did nothing that would "shock the conscience."
Plaintiffs argue that even if the Fourteenth Amendment is applicable, this court should apply the deliberate indifference standard, rather than the shocks the conscience standard. The deliberate indifference standard is most often applied in situations where there is time for actual deliberation, such as when someone is already in police custody. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The Plaintiffs contend that the Defendants had time to deliberate before using the Stinger Spike System and therefore, the deliberate indifference standard is appropriate. This argument is based on the length of the chase and the three to five minute gap from when Durant received approval to use the Stinger Spike System and his actual employment of the System. Although it is true that the Supreme Court has stated that "as the very term `deliberate indifference' implies, the standard is sensibly employed only when actual deliberation is practical," Lewis, 523 U.S. at 851, the Court went on to note that police chase situations generally did not involve the luxury of deliberation because of the necessity of quick decisions and many competing interests, id. at 853. This is just one of those situations. Although the police chase spanned a total of nineteen minutes, this time did not afford the police involved time for deliberate thought. During this time, the police were chasing James and attempting to apprehend him with the least risk to civilians. Even though Durant received permission to use the Stinger Spike System three to five minutes before he actually did, the decision to use it was based on the traffic he assessed at the time James approached him. These are not the type of decisions that involve actual deliberation, nor should this court review those decisions in a vacuum, apart from the difficult circumstances under which the decisions were made. Therefore, the deliberate indifference is not appropriate for this case.
Because Durant's actions do not shock the conscience, he cannot be held liable under the Fourteenth Amendment. Because Durant's actions do not rise to the level of a constitutional violation, the other Defendants' actions in failing to supervise, ordering the action, or failure to train Durant cannot constitute a constitutional violation either. Summary judgment for the County Defendants is therefore appropriate.
IV. State Defendants
Defendants Robert Trimpe and Gregory Anslow, both Indiana State Troopers, also move for summary judgment in their favor. In support of their motion, the Defendants claim that they were not personally involved in any deprivation of the Plaintiffs' constitutional rights, and in any event, there is no causal connection between any of Defendants' actions and Plaintiffs' injuries. Plaintiffs appear to concede that Anslow had no involvement in any deprivation of their constitutional rights, but argue that Trimpe is liable for Plaintiffs' constitutional deprivations because they can show that Trimpe "acted or failed to act with deliberate or reckless disregard of plaintiff's constitutional rights rising to the level of shocking the conscience, or that the conduct causing the constitutional deprivation occur[red] at h[is] direction or with h[is] knowledge and consent." (Pls.' Resp. at 10.)
Defendants also contend that they are entitled to qualified immunity on the federal claims against them. Given the resolution of their first contention, the court does not need to address the qualified immunity claim.
Even if their failure to argue Defendant Anslow's liability is not viewed as a concession, there is no evidence that Anslow caused or participated in the Plaintiffs' injuries. Anslow was not involved in the chase and did not even arrive on the accident scene until an hour after the accident. (Anslow Dep. at 16, 61-63.)
In support of their contention, Plaintiffs point out that Trimpe participated in the high-speed chase of James and provided information to the State Police dispatcher on where the stop sticks were being employed to assist with the use of the stop sticks. The Seventh Circuit has noted that
[s]ection 1983 creates a cause of action based upon personal liability and predicated upon fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation. Without a showing of direct responsibility for the improper action, liability will not lie against a supervisory official. A causal connection, or an affirmative link, between the misconduct complained of and the official sued is necessary. In short, [i]ndividual liability for damages under section 1983 is predicated upon personal responsibility.
Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986) (quotations and citations omitted).
However, "[t]o recover for damages under 42 U.S.C. § 1983, a plaintiff must establish defendant's personal responsibility for the claimed deprivation of a constitutional right," not a defendant's direct participation in the deprivation. "An official satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent." Id.
In this case, there is no evidence that Trimpe was a supervisory official who directed any conduct at the Plaintiffs that caused a constitutional deprivation or that Trimpe acted with deliberate indifference to the Plaintiffs' constitutional rights. Trimpe blocked an interstate exit, in an effort to prevent accidents to innocent bystanders, and then followed the chase from a half mile back. Trimpe was not involved in the actual use of the stop sticks that caused the accident. He did not direct Durant in how to use the stop sticks or where to use them. Any information that Trimpe provided to dispatch was "little, to none" and involved relaying the location of the pursuit. (Trimpe Dep. at 34.) Although the State Police were assisting in the efforts to apprehend James, there is no evidence that the State Police directed the use of the stop sticks by Durant or that any information Trimpe reported to State Police Dispatch caused Durant to use the stop sticks. In sum, there is no evidence that the Defendants caused or participated in any constitutional deprivations that the Plaintiffs may have suffered.
V. Claim for Damages under the Indiana Constitution
Plaintiffs also make a claim for damages under Article I, Section 11 of the Indiana Constitution. This court has previously held that no such cause of action exists.
See Boczar v. Kingen, No. IP 99-0141-C T/G, 2000 WL 1137713, at *24-25 (S.D.Ind.
March 9, 2000). In that case, the court addressed that issue as follows:
The court holds that the Plaintiffs cannot prevail against any Defendant on a claim for damages directly under Article I, Section 12 of the Indiana Constitution. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Court recognized an implied right of action for damages under the United States Constitution against federal agents for violations of federal constitutional rights. The Indiana Supreme Court has not directly addressed whether there is an analogous cause of action under the Indiana Constitution. One federal district court has held that a plaintiff may bring a damages action under the equal protection clause of the Indiana Constitution. See Discovery House v. Consolidated City of Indianapolis, 43 F. Supp.2d 997, 1004 (N.D.Ind. 1999). Judge Hamilton of this court, however, declined to recognize an implied right to sue for damages under the Indiana Constitution. See Craig v. Christ, No. IP 96-570-C H/G, Entry on Defs.' Mots. for Summ. J. and to Dismiss and City's Mot. to Strike at 5 (Dec. 15, 1998). The undersigned finds Judge Hamilton's decision more persuasive than that in Discovery House.
In reaching the decision in Discovery House, the court relied on the Indiana Supreme Court's implicit acceptance of such an action in Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), and the decisions of lower Indiana courts in Hilburt v. Town of Markleville, 649 N.E.2d 1036 (Ind.Ct.App. 1995), and Orr v. Sonnenburg, 542 N.E.2d 201 (Ind.Ct.App. 1989). See Discovery House, 43 F. Supp.2d at 1004. The Indiana Supreme Court did not expressly recognize a cause of action for damages under the Indiana Constitution in Bayh. The court did not decide the issue in Hilburt, but rather, merely assumed such an action could be maintained. Though the court upheld a damages award under the Indiana Constitution in Orr, the court simply concluded without discussion, that such an action could be maintained. Thus, as the Discovery House court acknowledged, none of these decisions expressly recognized a cause of action for damages under the Indiana Constitution. It is unlikely that the Indiana courts would recognize an implied right of action for damages under the Indiana Constitution for at least two reasons. First, Indiana's courts have been hesitant to recognize implied rights of action under Indiana statutory law. By analogy, the Indiana courts would begin with the intent of the framers of the Indiana Constitution to determine whether there is a private cause of action for damages for constitutional violations. It is unlikely that the framers intended such an action because they would have understood sovereign immunity to bar such an action. This court declines to recognize a cause of action for damages directly under the Indiana Constitution absent clear indication from the Indiana Supreme Court (or even Indiana's appellate courts) that such an action may be maintained.
Id. (citations omitted).
Plaintiffs have presented no compelling reason to reexamine this issue. Therefore, this court continues to decline to find a cause of action for money damages for a violation of the Indiana Constitution.
VI. Conclusion
For the foregoing reasons, Defendants' Motions for Summary Judgment will be GRANTED with respect to the claims brought pursuant to 42 U.S.C. § 1983 and the Indiana Constitution. Judgment will not be entered, though, until the resolution of certain related matters. Specifically, in the Plaintiffs' Amended Complaint, Plaintiffs also contended that Defendants violated 42 U.S.C. § 1985, 1986, and 1988. These issues were not addressed in Defendants' Motions for Summary Judgment or in the parties' related briefs. However, from the titles of the Motions, Defendants appear to have been attempting to seek judgment on the entire case, not just a partial summary judgment on some of the claims. 42 U.S.C. § 1985 prohibits conspiracies to interfere with civil rights and § 1986 deals with failing to prevent a violation of civil rights. Section 1988 provides for attorney's fees to the prevailing party in a civil rights action, and is totally derivative of those claims, and without prevailing under §§ 1983, 1985, or 1986, Plaintiffs cannot be awarded attorney's fees. Because it does not appear that there is any violation of Plaintiffs' civil rights under § 1983, this court does not see how claims under §§ 1985, 1986, and 1988 survive these Motions for Summary Judgment. The Plaintiffs are hereby ordered to submit a memorandum to this court explaining how the outcome on the 42 U.S.C. § 1985 and 1986 claims should be any different than on the § 1983 claims. The Plaintiffs will have 10 days to file this Supplement. Defendants will then have 10 days to respond. If nothing is filed, Summary Judgment will be entered in favor of the Defendants on all counts of the complaint.
ALL OF WHICH IS ORDERED this 8th day of August 2002.