Opinion
Case No. 1:03-cv-1135-DFH-TAB.
April 22, 2005
ENTRY ON SHERIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Eric Crumes, Sr. alleges that defendant David Myers arrested him without probable cause, used excessive force against him, and caused groundless criminal charges to be filed against him. The criminal charges were eventually dismissed. Crumes alleges violations of his rights under the Fourth Amendment to the United States Constitution and under state law. At the time of the arrest, Myers was a "special deputy" appointed by the Marion County Sheriff.
Crumes has sued Myers and the two corporations, as well as former Marion County Sheriff Jack Cottey in his individual and official capacities. Crumes contends that Sheriff Cottey violated state law when he appointed Myers a special deputy. Myers had a prior criminal record that disqualified him. Crumes seeks relief from Sheriff Cottey, in both his individual and official capacities, on the theory that Sheriff Cottey acted with deliberate disregard for the risk that Myers would violate citizens' constitutional rights as in this case.
Constitutional claims of improper hiring or appointment like this are difficult to prove. They require the plaintiff to meet "rigorous requirements of culpability and causation." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 415 (1997). In light of the high standard for granting a motion for judgment on the pleadings, however, the court denied the sheriff's earlier motion for judgment on the pleadings. Crumes v. Myers, 2004 WL 1784796 (S.D. Ind. July 26, 2004). The sheriff has now moved for summary judgment. As explained below, the court grants the sheriff's motion. Although the court finds a genuine issue of material fact with respect to the culpability requirement, the evidence would not allow a reasonable jury to find that Crumes has met the "rigorous requirement" for causation in this case. The information actually known to Sheriff Cottey and his department showed that Myers had a prior felony conviction for theft that had later been reduced to a misdemeanor. That information was not sufficient to signal, in the words of Brown, "that this officer was highly likely to inflict the particular injury suffered by the plaintiff." 520 U.S. at 412 (emphasis in original). Crumes' arguments to the contrary amount to a sweeping indictment of Myers' character for honesty and obeying the law. The evidence still lacks a sufficiently specific link between Myers' background and the particular injuries suffered by Crumes.
The Applicable Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).Undisputed Facts
In light of this standard, the following facts are deemed true for purposes of Sheriff Cottey's motion. The court expresses no view on whether Crumes will actually be able to prove his allegations against Myers, but Sheriff Cottey's motion and the court's decision assume that he will be able to prove them.
In December 2001, plaintiff Crumes was a resident of a condominium complex in Indianapolis. Defendant David Myers was president of Myers Protective Services, Inc. and Myers Investigations, Inc. The condominium manager had contracted with Myers and/or his corporations to provide security services for the complex and its residents.
Defendant Sheriff Cottey conferred non-employee special deputy powers on defendant Myers on June 14, 1999. The sheriff acted pursuant to Indiana Code § 36-8-10-10.6, which authorizes a sheriff to appoint special deputies who may then, subject to limitations imposed by the appointing sheriff, exercise the powers of a deputy sheriff.
At approximately 11:00 p.m. on December 15, 2001, plaintiff Crumes was sitting in his parked car in the condominium complex checking voice mail messages on his cellular telephone. Defendant Myers drove up in his private security vehicle and parked behind Crumes, shining a spotlight into Crumes' car. Myers got out of his car and asked Crumes for his driver's license. Crumes handed Myers his license and asked if there was a problem. He told Myers that he lived in the complex and asked Myers to identify himself. Myers responded that he was a Marion County Sheriff. He then corrected himself and told Crumes that he was a Marion County Special Deputy.
Myers took Crumes' driver's license back to his vehicle. Crumes' license showed that his address was within the complex. The license plates on his vehicle were current, his vehicle was registered, and he had never been arrested and was not the subject of an arrest warrant or any other legal proceeding.
Some time passed as Crumes waited for Myers to return with his driver's license. Crumes thought that Myers was taking too much time. He got out of his car, walked back to Myers' vehicle and asked when Myers would be finished with his license. Crumes alleges that Myers screamed at him to "get back in your vehicle." Crumes again told Myers that he lived in the complex, that his driver's license reflected that fact, and that the license plates on his car were valid. Again, Myers screamed at Crumes to "get back in your vehicle." Crumes began walking back to his car, at which point he stated "This is bull s***. I live here."
Upon hearing this, Myers got out of his car and approached Crumes, who was now seated in the driver's seat of his own car. According to plaintiff, Myers loudly asked, "What did you say?" Crumes answered, "I said this is bull s***. You guys work for us." Myers then ordered Crumes out of his vehicle and told Crumes he was under arrest for disorderly conduct. Crumes asked to speak with Myers' supervisor. Myers said that he was the supervisor and Crumes was headed to jail. Myers then opened the driver's side door and attempted to pull Crumes out of the car by his arm. Crumes asked Myers what he was doing and told Myers that he had not done anything to justify such treatment. Myers then hit him on the hands and placed a handcuff on one wrist.
Crumes then got out of his car voluntarily. He asked Myers to call the Indianapolis Police Department, Marion County Sheriff's Department, or Indiana State Police to assist in the situation. To that, Myers put his hand on his gun and said, "turn your f*** ing a** around." Crumes alleges that Myers continued in his attempt to arrest Crumes and in the process "inflicted unnecessary pain" on him.
Crumes informed Myers that he was carrying a firearm under his vest. Myers removed the firearm and then spoke into his two-way radio saying, "Code one. Man with a gun." Myers finished placing the handcuffs on Crumes, roughly moved Crumes over to his security vehicle, and "shoved" Crumes onto the hood. Crumes called to neighbors who saw the incident to call the Indianapolis Police Department late shift supervisor for assistance. Myers then pushed Crumes' head toward the hood of the car. Crumes alleges that he suffered physical injury after he was handcuffed.
Crumes was charged with disorderly conduct, battery, and resisting law enforcement. His bond was set at $30,000, and he spent one night in jail. After an evidentiary hearing, the state criminal court found that Myers did not have probable cause or reasonable suspicion for the stop, nor for the ensuing investigation. The state court also found that there was no probable cause for battery or for resisting law enforcement. All charges were dismissed.
The allegations against Myers would, if proved, establish violations of Crumes' Fourth Amendment rights and the torts of assault, battery, and false arrest. Crumes also seeks to hold Sheriff Cottey liable for the alleged violations, in both his individual and official capacities. Myers' past criminal record meant that his appointment as a special deputy was contrary to state law and the written policies of the Marion County Sheriff's Department. Indiana Code § 36-8-10-10.6 provides in relevant part:
(a) The sheriff may appoint as a special deputy any person who is employed by a governmental entity as defined in IC 35-41-1 or private employer, the nature of which employment necessitates that the person have the powers of a law enforcement officer. During the term of his appointment and while he is fulfilling the specific responsibilities for which the appointment is made, a special deputy has the powers, privileges, and duties of a county police officer under this chapter, subject to any written limitations and specific requirements imposed by the sheriff and signed by the special deputy. A special deputy is subject to the direction of the sheriff and shall obey the rules and orders of the department. A special deputy may be removed by the sheriff at any time, without notice and without assigning any cause.
(b) The sheriff shall fix the prerequisites of training, education, and experience for special deputies, subject to the minimum requirements prescribed by this subsection. Applicants must:
* * *
(2) never have been convicted of a felony, or a misdemeanor involving moral turpitude. . . .
Sheriff Cottey had adopted separate departmental regulations on the appointment of special deputies, which provided that the special deputy appointee must not:
A. Have been convicted of any felony charges.
B. Have been convicted of any misdemeanor charges in the last five (5) years involving moral turpitude. Misdemeanor convictions will be reviewed by Department Staff who will then make a determination as [to] whether or not the applicant will be accepted.
Cplt. ¶ 47. Those regulations are inconsistent with the state statute's requirement that a special deputy "never" have been convicted of a felony or a misdemeanor involving moral turpitude.
On March 27, 1995, Myers pled guilty to felony theft. On April 17, 1996, Myers' petition for modification of sentence was granted. His conviction was downgraded from a felony to a Class A misdemeanor.
Before Myers was appointed a special deputy, he disclosed the theft conviction, and Sheriff Cottey and his subordinates considered the available information. The arrest report on Myers indicated that Myers, while a college student studying criminal justice, had stolen an infrared device from a retail store. He tried to return it for a cash refund but was unable to do so because he had no sales receipt. He then figured out what he thought was a solution to the problem. He bought an identical item for cash. He made an extra copy of the sales receipt from that purchase. He then went to two separate stores. Using the original and duplicate sales receipts, he returned both the stolen and the purchased items for cash refunds. The manager of the store from which Myers actually bought the second device eventually caught the problem. He saw that he had been billed for two returns on what he thought was the same sale. Myers was interviewed by a police officer, confessed to his actions, and pled guilty. His felony conviction was reduced, as noted, to a misdemeanor after he stayed out of trouble for a year. He has no other criminal record. Myers did not use force as part of the theft and was not charged with a crime involving the use of force.
Crumes has offered evidence that Myers lied about his experience when he applied to become a special deputy in Marion County. He falsely told the Marion County Sheriff's Department that he was a special deputy in Bartholomew County, when he in fact was not. Crumes has not come forward with evidence that anyone in the Marion County Sheriff's Department was aware of that deception, however.
Discussion
The sheriff's motion for summary judgment assumes that Myers acted under color of state law and violated Crumes' Fourth Amendment rights by taking him into custody, using excessive force against him, and causing unfounded criminal charges to be filed. The sheriff's motion also assumes that Myers' actions were tortious under state law. The court considers first Crumes' official capacity claims against Sheriff Cottey and then his individual capacity claims.
I. Official Capacity Claims
For those well-versed in the complex web of rules that govern civil rights litigation, it is a commonplace that § 1983 does not authorize respondeat superior liability against local governments like a sheriff's department for injury inflicted solely by its employees or agents without final policy-making authority. See Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). Instead, the plaintiff must show that a constitutional violation was caused by a government policy, custom, or practice reflecting the final policy-maker's deliberate indifference to constitutional rights. See Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003). Without proof of such a policy, custom, or practice, the plaintiff's federal damages remedies are limited to individual capacity claims against the individual officer or other actor who violated his constitutional rights. For purposes of the sheriff's motion, the parties and the court assume that Crumes can show that Sheriff Cottey was the final policy-maker for the department he ran. The decisive issue is whether any policy-making action by Sheriff Cottey caused Myers' alleged violations of Crumes' constitutional rights.
For cases asserting that hiring or appointment decisions violated the plaintiff's constitutional rights, the Supreme Court established "rigorous requirements of culpability and causation" in Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 415 (1997). The plaintiff in Brown alleged and ultimately proved that a reserve deputy sheriff had used excessive force to arrest her, resulting in serious injuries. The reserve deputy in question was the sheriff's relative. He had a criminal history with several misdemeanor convictions, including assault and battery, resisting arrest, and public drunkenness, all arising from a campus fight. 520 U.S. at 413-14 n. 2. The plaintiff also sued the county. She argued that the sheriff's decision to hire the special deputy, notwithstanding his criminal history, reflected deliberate indifference to the danger that he had violent tendencies and posed a special threat of constitutional violations. A jury found in favor of the plaintiff on the claim against the county.
The Supreme Court ultimately reversed, finding that the evidence was not sufficient to hold the county liable for the constitutional violations by the special deputy. The Court assumed, as the court does in this case, that the sheriff was the final policy-maker for the county. The Court then explained that such claims based on hiring decisions would have to meet "rigorous requirements of culpability and causation" in order to protect the county from being held liable on evidence that would support only a respondeat superior theory. 520 U.S. at 415. Holding the county liable for the sheriff's hiring decision would require proof that the sheriff's decision "reflected a conscious disregard for a high risk that [the reserve deputy] would use excessive force in violation of respondent's federally protected right." Id. at 415-16.
The Brown Court set a high bar in such cases to prove both culpability (at least deliberate indifference to constitutional rights) and causation (the resulting injury was a "plainly obvious consequence" of the hiring decision). The Court explained that cases like these "involving constitutional injuries allegedly traceable to an ill-considered hiring decision pose the greatest risk that a municipality will be held liable for an injury that it did not cause." 520 U.S. at 415. The Court further explained:
In the broadest sense, every injury is traceable to a hiring decision. Where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability. As we recognized in Monell and have repeatedly reaffirmed, Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights. A failure to apply stringent culpability and causation requirements raises serious federalism concerns, in that it risks constitutionalizing particular hiring requirements that States have themselves elected not to impose. Cf. Canton v. Harris, 489 U.S. 378, 392 (1989).520 U.S. at 415.
With the benefit of hindsight and using the summary judgment lens to view the facts, of course, it is easy to call Sheriff Cottey's decision to appoint Myers a special deputy an ill-advised mistake. The same could be said of Sheriff Moore's decision to appoint the reserve deputy in Brown.
One fact that distinguishes the two cases is that the hiring decision in Brown was legal under state law, which prohibited appointment only of persons with felony records. 520 U.S. at 405 ("Sheriff Moore's hiring decision was itself legal, and Sheriff Moore did not authorize Burns to use excessive force. Respondent's claim, rather, is that a single facially lawful hiring decision can launch a series of events that ultimately cause a violation of federal rights.").
In this case, Myers' appointment was contrary to state law. Myers was convicted of felony theft in 1995, which was changed to misdemeanor theft in 1996. Crumes has come forward with evidence showing that the sheriff's appointment of Myers was contrary to state law and to the local written policy. Even giving effect to the post hoc discount of the theft conviction from felony to misdemeanor, the misdemeanor conviction was still for a crime of moral turpitude. See Dashto v. INS, 59 F.3d 697, 699 (7th Cir. 1995) (in immigration law, theft is a crime of moral turpitude); Soetarto v. INS, 516 F.2d 778, 780 (7th Cir. 1975) ("Theft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen."); Fletcher v. State, 340 N.E.2d 771, 774 (Ind. 1976) (theft involves "dishonesty or false statement" and is therefore admissible against a witness with a prior conviction for theft). Based on the timing, Myers' 1999 appointment was also contrary to the sheriff's own written policy, which barred appointments as special deputies of persons convicted of such a misdemeanor in the past five years.
The alleged violations of both state law and the sheriff's written policy are not conclusive on the federal constitutional question, but they are evidence that tends to support plaintiff's claim of deliberate indifference to the threat Myers posed to constitutional rights. See Havey v. County of Dupage, 820 F. Supp. 359, 362 (N.D. Ill. 1993) (denying motion to dismiss where plaintiff alleged that county failed to follow its own policies intended to prevent suicide by jail inmates); Riddle v. Innskeep, 675 F. Supp. 1153, 1163 (N.D. Ind. 1987) (denying summary judgment in juvenile's claim for stabbing by another juvenile who had been placed in center contrary to county policies). A reasonable jury could find on this record that Sheriff Cottey knew of Myers' criminal record. For example, the record contains a printout of the records of Myers' conviction and arrest bearing a date when Myers' application was under consideration in 1999. In other words, Sheriff Cottey appointed Myers as a special deputy in the face of a state law prohibiting the appointment, and despite the terms of his own policy prohibiting the appointment. From this evidence, a reasonable jury could find that Sheriff Cottey acted with deliberate indifference to the public welfare and to the general risk that Myers would violate constitutional rights.
Such a risk, however, was not sufficiently specific in Brown. 520 U.S. at 412. In Brown, the Court explained that while inadequate screening of an applicant may reflect "indifference" to the applicant's background, "[f]or purposes of a legal inquiry into municipal liability under § 1983, however, that is not the relevant `indifference.' A plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Id. at 411. In strong language that sent a clear signal to the lower courts, the Supreme Court explained:
a finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong. What the District Court's instructions on culpability, and therefore the jury's finding of municipal liability, failed to capture is whether Burns' background made his use of excessive force in making an arrest a plainly obvious consequence of the hiring decision.520 U.S. at 412 (emphasis in original).
In Brown, the reserve deputy's record of criminal (but misdemeanor) violence was not sufficient to prove the specific linkage between the deputy's past and a high risk that he would commit the particular constitutional violations at issue. "Sheriff Moore's hiring decision could not have been `deliberately indifferent' unless in light of that record Burns' use of excessive force would have been a plainly obvious consequence of the hiring decision." Id. at 415.
The Brown Court did not merely remand for a new trial under better, more specific jury instructions. Instead, the Court held as a matter of law that the evidence of the reserve deputy's prior criminal violence was not tied sufficiently to the use of excessive force in the case to allow a reasonable jury to find municipal liability. Id. at 414-15.
The information known to the Sheriff's Department in this case — Myers' theft conviction and the events reported in the arrest report — presents a weaker case for causation than the evidence in Brown. In Brown, the reserve deputy was accused of excessive force. His prior criminal record included at least misdemeanor convictions for assault, battery, and resisting arrest (all in connection with a fight on a college campus). Id. at 413-14. In other words, there was at least the common thread of force or violence linking the criminal history to the events in suit.
Here, even that modest and insufficient thread is lacking. Here, the sheriff's department knew that Myers had stolen property from a store and had pursued a fraudulent scheme to exchange it for cash. That crime bears no specific connection to the constitutional violations in this case: unreasonable seizure of the person, use of excessive force, and causing unfounded criminal charges to be filed.
To be sure, Crumes' brief opposing summary judgment presents a damning indictment of Myers' character based on the 1995 theft and efforts to profit from it. But Crumes' attempts to equate Myers' exercise of unauthorized control over a store's property with his exercise of unauthorized control over the person of Crumes, and to equate false use of the copied sales receipt with a false accusation against Crumes, are so glib as to erase the boundaries that Brown established. Crumes' argument amounts to an overall attack on Myers' character: because he had a prior conviction for theft, he should not have been trusted with law enforcement powers. No case has gone so far as a matter of federal constitutional law, and Brown bars such an extension.
In this case, a finding of municipal liability would require proof of deliberate indifference to the risk that Myers would violate the particular constitutional rights that he allegedly violated, not just any constitutional rights. A reasonable jury could not find that an "obvious consequence" of deputizing a shoplifter would be that the shoplifter would eventually use excessive force in the course of an invalid arrest. As a matter of law, the evidence of the special deputy's prior criminal conduct was not tied sufficiently to the use of excessive force against Crumes to allow a reasonable jury to find municipal liability. Cf. Rasche v. Village of Beecher, 336 F.3d 588, 599 (7th Cir. 2003) (applying Brown and upholding summary judgment in favor of municipality: "The Rasches do not articulate how the obvious consequence of enacting the zoning ordinances was that the ordinances would be used to retaliate against Rasches' or other citizens' exercise of their First Amendment rights.").
II. Individual Claims and Qualified Immunity
Crumes also seeks relief from Sheriff Cottey in his individual capacity. Cottey argues that he is entitled to qualified immunity because any actions of his did not violate clearly established constitutional rights of Crumes. Without deciding the issue of qualified immunity, however, the absence of evidence of causation entitles Cottey to summary judgment on the individual capacity claims.
The doctrine of respondeat superior does not apply to § 1983 actions against individuals, as well as to claims against municipalities. To be held individually liable, a defendant must be "personally responsible for the deprivation of a constitutional right." Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001), quoting Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). Plaintiff Crumes seeks to hold Cottey individually liable for exactly the same decision that is the basis for his official capacity claims: Cottey's decision to appoint Myers as a special deputy, notwithstanding his criminal record.
The court assumes that Crumes can show that Cottey acted with deliberate indifference to constitutional rights in general when he appointed Myers, for the reasons noted above. However, the court could not find that the same actions by the policy-maker himself were actionable in individual capacity claims but not in official capacity claims. To find that the action of the individual policy-maker caused the violation of constitutional rights, the court would need evidence that would meet the causation standards of Brown. See Morris v. Crawford County, 299 F.3d 919, 921 (8th Cir. 2002) (affirmance of summary judgment for sheriff on official capacity claim under Brown also required affirmance of summary judgment on individual capacity claim; individual capacity claim would be identical to the official capacity claim); Barney v. Pulsipher, 143 F.3d 1299, 1308, 1311 (10th Cir. 1998) (applying Brown standard to both official capacity and individual capacity claims alleging deliberate indifference to constitutional rights in sheriff's hiring decision: "Without any evidence of sexual misconduct in Mr. Pulsipher's background or any evidence of previous incidents of sexual misconduct by Box Elder County jailers, plaintiffs have failed to raise a fact question on whether the Sheriff and the Commissioners acted with deliberate indifference under either an objective or subjective standard."), cited with approval in Kitzman-Kelley v. Warner, 203 F.3d 454, 459 (7th Cir. 2000); see also Kelly v. Municipal Courts of Marion County, 97 F.3d 902, 909 (7th Cir. 1996) ("Individual liability under 42 U.S.C. § 1983 can only be based on a finding that the defendant caused the deprivation at issue."). The evidence here does not meet the Brown causation standard, so Cottey is entitled to summary judgment on the individual capacity claims.
Conclusion
Sheriff Cottey's motion for summary judgment is granted. After consulting counsel, the court will promptly set a new date for trial on Crumes' claims against Myers and his companies.
So ordered.