Opinion
IP 00-0587-C-T/K
January 30, 2002
ENTRY ON DEFENDANTS' MOTION FOR PARTIAL 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.
Defendants filed a Motion for Partial Summary Judgment. Plaintiff opposes the Motion. This court will GRANT Defendants' Motion.
I. Factual and Procedural Background
These facts are not disputed. Additional facts may be set forth in the Discussion section as necessary. That section also will address any disputes about factual submissions proffered by Reinbold.
This lawsuit arises out of a traffic altercation on October 22, 1998. On that day, Don Harris, a police officer with the City of Greenwood, was dispatched to the parking lot of Sam's Club for an allegedly drunk driver. When Harris arrived at Sam's Club, Complainant, William J. Chamberlain, told him that a blue Honda cut him off, gave him "the bird," and headed towards Sam's Club. Chamberlain then followed the Honda to get its license plate number. When Chamberlain turned into the Sam's Club parking lot, the other person stopped their car, put it into reverse, and skidded the tires, heading towards Chamberlain. The driver of the Honda then got out of the car and started calling Chamberlain a "pussy."
As Harris was getting information from Chamberlain, Douglas Reinbold exited Sam's Club and was identified as the driver of the blue Honda. Harris approached Reinbold and the parties dispute what happened next. Harris claims that Reinbold was belligerent and an altercation broke out. Reinbold claims that Harris demanded that he identify himself, that Reinbold responded by pointing to his name on his jacket and asking, "what is your probable cause," and then Harris injured him. Harris arrested Reinbold.
Reinbold was charged with resisting law enforcement, failure to identify, and disorderly conduct. On January 10, 2000, all criminal charges against Reinbold were dismissed. On April 7, Reinbold filed this suit against Harris, the City of Greenwood, and Sam's Club, Inc., alleging that Harris used excessive force and arrested him without probable cause in violation of 42 U.S.C. § 1983 and that Harris and employees of Sam's Club destroyed videotape of the day of the incident from the Sam's Club surveillance camera. On October 2, 2000, Plaintiff amended the complaint to add a charge that Defendants violated Article I, Section 9 of the Indiana Constitution. On November 7, 2000, judgment was entered against Reinbold on the counts against Sam's Club.
On February 14, 2001, the City of Greenwood and Harris filed a Motion for Partial Summary Judgment. That same day this court granted judgment on the pleadings as to the Indiana Constitutional claim. On September 12, Plaintiff filed a brief in opposition to the Motion for Partial Summary Judgment. The court now rules as follows.
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. False Arrest and Imprisonment
Reinbold brings his federal claim pursuant to 42 U.S.C. § 1983, which provides a cause of action against "[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 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 parties in this case do not appear to dispute that the defendant was acting under color of state law during the incident. Rather, the parties dispute whether the facts that Reinbold can produce establish a deprivation of his constitutional rights.
The first step in analyzing a § 1983 claim is to identify the specific constitutional right allegedly infringed. Courts analyze a claim of false arrest and imprisonment under the Fourth Amendment, which guarantees "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. Harris' arrest of Reinbold was a quintessential "seizure" for Fourth Amendment purposes.
Reinbold contends that Harris violated his Fourth and Fourteenth Amendment rights when Reinbold arrested Harris on October 22, 1998. Harris maintains that he is entitled to summary judgment on Reinbold's § 1983 claim because Harris had probable cause to arrest Reinbold for intimidation and criminal recklessness. Probable cause is an absolute defense to a false arrest claim under the Fourth Amendment. Biddle v. Martin, 992 F.2d 673, 678 (7th Cir. 1993). A law enforcement officer has probable cause to arrest someone when a prudent person, knowing the facts and circumstances within the knowledge of the arresting officer, would believe that the suspect had committed or was committing an offense. Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996). Because the issue of whether probable cause existed is usually a question for the jury, a court may find that probable cause existed as a matter of law only when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994); accord Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999).
This fact-intensive, on-the-spot determination of probable cause often involves an exercise of judgment, which "`turn[s] on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.'" Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Therefore, courts evaluate probable cause "not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer — seeing what he saw, hearing what he heard." Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992). The test, an objective one, is whether a reasonable officer would have believed the person had committed a crime. "If so, the arrest is lawful even if the belief would have been mistaken." Id. at 1057-58. Thus probable cause has been described as a "zone within which reasonable mistakes will be excused." Sheik-Abdi, 37 F.3d at 1246.
Indiana law provides that a person commits the offense of intimidation when the person communicates a threat to another person with the intent that the other person engage in conduct against his will or be placed in fear of retaliation for prior lawful acts. Ind. Code § 35-45-2-1(a) (1998). A threat is "an expression, by words or actions, or an intention to unlawfully injure the person threatened or another person, or damage property. . . ." Id. at (c) (numbering omitted). Harris was called to the Sam's Club to investigate a potential drunk driver. When he arrived there, Chamberlain told Harris that he was driving nearby when he was cut off by Reinbold. He then followed Reinbold into Sam's Club to get his license plate information. Reinbold "stopped his vehicle, put it in reverse, and skidded his tires going towards the Complainant." (Evidence Relied Upon by Defs. in Support of Mot. for Partial Summary J., Ex. A at 7.) This is sufficient information from which Harris could conclude that Reinbold threatened Chamberlain to place him in fear of retaliation for his prior act of following Reinbold.
Indiana Code section 35-42-2-2(b) provides that "a person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person . . . commits criminal recklessness." (numbering omitted). The facts described above also could lead Harris to believe that Reinbold had committed or was committing that offense.
Reinbold contends that Harris did not have probable cause to arrest Reinbold because, in Indiana, a police officer can only make a warrantless arrest for a misdemeanor if the misdemeanor is committed in the officer's presence. Cornett v. State, 536 N.E.2d 501, 504 (Ind. 1989). In this case, Reinbold contends that because Harris did not see Reinbold commit a misdemeanor, he could not arrest Reinbold without a warrant.
However, a violation of a state statutory or common law right does not correlate with a violation of federal constitutional rights. See Massey v. Helman, 259 F.3d 641 (7th Cir. 2001); Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993). Even assuming that Harris did violate Indiana state law, this does not equal a violation of Reinbold's federal constitutional rights and therefore does not negate Harris' probable cause to arrest Reinbold.
Reinbold also challenges his arrest because he claims there was no probable cause to arrest him for a failure to identify. There is a factual dispute about the conversations between Harris and Reinbold prior to the arrest. However, even if probable cause does not exist for the crime charged, "proof of probable cause to arrest the plaintiff on a closely related charge is also a defense." Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir. 1994). Because the parties dispute the facts surrounding the false identification charge, Defendants seek summary judgment based on the probable cause to arrest Reinbold on other charges. In this case, Reinbold was charged with resisting law enforcement, failure to identify, and disorderly conduct. These charges are similar enough to the charges of intimidation and criminal recklessness.
Even if probable cause had not existed, Defendants also seek summary judgment under the doctrine of qualified immunity. Police officers are entitled to qualified immunity so long as their conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir. 1996). Qualified immunity is intended to shield from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). In deciding qualified immunity, the court focuses on the objective reasonableness of the defendant's actions:
whether a reasonable police officer could have believed that his conduct was constitutional "in light of the clearly established law and the information he possessed at the time."
Frazell, 102 F.3d at 886 (quotations and citations omitted).
There is a two-part test to determine whether an officer is entitled to qualified immunity. First, the court must determine if the law was clearly established at the time of the alleged violation. Second, the court must examine the objective reasonableness of the defendant's conduct. The law is clear that a person cannot be arrested without probable cause. That leaves the question of whether Harris' actions were objectively reasonable.
"With an unlawful arrest claim in a § 1983 action when a defense of qualified immunity has been raised, [the court] will review to determine if the officer actually had probable cause, or, if there was no probable cause, whether a reasonable officer could have mistakenly believed that probable cause existed." Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). If reasonable officers would have believed that probable cause existed to arrest Reinbold, Harris is entitled to qualified immunity.
The Seventh Circuit has recognized that there is an overlap on the issues of immunity and the merits of the unlawful arrest claim. See Kelley, 149 F.3d at 648; Maxwell, 998 F.2d at 435. The question that is dispositive of both immunity and the merits is the issue of probable cause. Kelley, 149 F.3d at 648. In this case, the issue was decided against Reinbold. Because a reasonable officer could have believed that Reinbold had committed the offenses of intimidation and criminal recklessness, Harris was not acting contrary to clearly established law when he arrested Reinbold and thus is entitled to qualified immunity. See Kelley, 149 F.3d at 648.
Reinbold has not cited any authority which establishes that Harris violated clearly established law based on the facts of this case. Therefore, Harris' decision to arrest Reinbold "easily falls within the zone of probable cause and even more easily into the zone of qualified immunity." Sheik-Abdi, 37 F.3d at 1247-48; accord Humphrey, 148 F.3d at 725-26 (holding that officer was entitled to qualified immunity on false arrest claim despite jury verdict for plaintiff on merits of claim).
IV. Greenwood's Liability
The City of Greenwood claims that summary judgment should be granted in its favor because Reinbold has produced no evidence of any custom, practice, or policy of the City of Greenwood which caused a deprivation of his constitutional rights. Municipalities are liable under § 1983 only when the municipality, in executing an official policy or practice, has caused a constitutional violation. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978). Liability attaches only when the governmental entity causes the violation; merely showing that an agent or employee afflicted an injury is not enough. The government cannot be held liable under a respondeat superior theory. Id. at 692-94. Of course, if there has been no underlying constitutional deprivation, there can be no municipal liability whatsoever. As previously noted, the Plaintiff has not shown that he was deprived of his right to be arrested only upon probable cause. Nonetheless, the court will address the summary judgment questions on the City of Greenwood's potential liability with the assumption that the Plaintiff could prove deprivations of his constitutional rights to be free from arrest without probable cause and from excessive force in being arrested.
Plaintiff contends that he has shown that Greenwood has a custom or practice of allowing its police officers to arrest without probable cause and to use excessive force. In support of this contention, Plaintiff points to Greenwood's continued employment of Harris with no promotions for the last twenty-three years. Plaintiff requested the last 100 arrest reports of Harris and appears to believe that because there are gaps of several days to months between arrests that the Defendants are withholding information that would establish a custom or practice by Defendant Greenwood. Plaintiff's claims are absolutely without support. There could be any number of logical reasons as to why Defendant Harris did not have an arrest every day, including desk duty or a lack of crime during his shift in his location. Plaintiff's claim that:
[a]ny such attempt by Defendants to explain the gaps in the arrest reports, other than by admitting that reports have been withheld from Plaintiff, would be yet another attempt to avoid revealing Defendant Greenwood's practice and custom of allowing its officers to use excessive force and arrest without probable cause.
Pl.'s Br. in Resp. to Defs.' Mot. for Summary J. at 9.) This statement is without support and incorrect. Blatant speculation does not create a question of material fact.
Plaintiff also tries to make issues out of a report that does not disclose the name of the person arrested and the fact that Defendants objected to the production of Harris' last 100 arrest reports. As to the first issue, Plaintiff has again not established any intentional withholding of evidence by Defendants. As to the second issue, Defendants are allowed and in fact, their attorney should, make all good faith objections to evidence that will not assist the trier of fact in determining an issue. The fact that Defendants' objections were eventually overruled does not negate their ability to make them in good faith. The discovery dispute on these matters was a very close call. The arguments made on behalf of Greenwood were sound and by no means frivolous. The discovery that the court eventually allowed was out of the ordinary, and was not likely to have been expected by Greenwood. In short, no adverse inferences should be drawn from the fact that Greenwood opposed the discovery. In retrospect, having seen how the Plaintiff used (or failed to use) the discovery obtained, the court would be reluctant to allow such novel discovery in the future.
Finally, Plaintiff claims that Defendants attempted to withhold a psychological evaluation done on Harris in the 1970s. Even if Defendants did withhold this information, Plaintiff has presented no compelling evidence that his report would show that Greenwood had a custom or policy that caused a deprivation of his constitutional rights.
Plaintiff has demonstrated no facts that would make Greenwood liable under the standards set forth in Monell. Plaintiff has shown no deliberate choice on the part of Greenwood to follow a course of action that resulted in the violation of Plaintiff's rights. Because Plaintiff has no evidence that the City of Greenwood has a custom, policy, or practice that caused a violation of his constitutional rights, the § 1983 counts against the City of Greenwood should be dismissed.
Plaintiff appears to be asserting two access to courts claims against Defendant Harris, although they are worded in an obscure way. (See Compl. ¶ ¶ 17, 18.) The Second Amended Complaint does not appear to make a claim for denying access to courts against Defendant Greenwood. Even if it did, those claims would suffer the same infirmity as the rest of the § 1983 claims, meaning that the Plaintiff has failed to show that a custom, policy, or practice of Greenwood caused the harm.
V. Indiana State Law Claim
Defendants finally claim that the state law claim against them must be dismissed because the Plaintiff did not comply with the notice requirements of the Indiana Torts Claim Act ("ITCA"). The ITCA requires the plaintiff to filed a tort claim notice within 180 days of the date of the loss. Ind. Code § 34-13-3-8 (1998). This notice must provide certain facts and be served upon the governing body of the governmental entity in a prescribed form. Id. §§ 34-13-3-10, 34-13-3-12. Failure to file a notice is a jurisdictional bar to the filing of state law claims. Tegue v. Boone, 442 N.E.2d 1119, 1120 (Ind.Ct.App. 1982).
In this case, Plaintiff did not file a notice with the City of Greenwood within 180 days of the alleged spoliation and therefore his claim against that entity is barred. Plaintiff cites to a number of cases that hold that substantial compliance with the ITCA is sufficient. See Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989); Galbreath v. City of Indianapolis, 255 N.E.2d 225, 229 (Ind. 1970). Plaintiff orally told the deputy prosecuting attorney in his criminal case, Andrew S. Roesener, on April 27, 1999, that he intended to pursue a claim against Greenwood for spoliation. Reinbold claims that this is sufficient and he should be not be barred from pursuing his claim because of "the lack of two words" (tort claim) in his notice. However, it is not merely the lack of the words tort claim that makes Reinbold's notice insufficient. The notice was delivered to a representative from the State of Indiana (or perhaps a representative of Johnson County), not the City of Greenwood. In no way did Reinbold notify the City of Greenwood of his plans to pursue a claim against it for spoliation. His correspondence with the deputy prosecutor in his criminal case, a state official, is insufficient.
The failure to comply with the ITCA is also fatal to any spoliation claim Reinbold makes against Harris in his individual capacity. Indiana Code section 34-13-3-5(b) provides that "[a] lawsuit alleging that an employee acted within the scope of the employee's employment must be exclusive to the complaint and bars an action by the claimant against the employee personally." Subsection (c) provides that "[a] lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is: criminal; clearly outside the scope of the employee's employment; malicious; willful and wanton; or calculated to benefit the employee personally." (numbering omitted). Furthermore, the complaint must contain a reasonable factual basis supporting the allegations. Id.
Although not entirely clear, it does not appear that the complaint alleges that Harris was acting outside the scope of his employment. The concept of scope of employment deals with the relationship between the act and the nature and duties of the employment. In paragraph five of the complaint, Plaintiff claims that Harris "at all time material to this Complaint acted under color of state law and was a police officer employed by the City of Greenwood." Furthermore, paragraph seventeen refers to Harris as a "state actor." These paragraphs appear to refer to actions taken in the course of employment.
If called upon to determine the issue, it appears that Harris was acting within the scope of employment. The Indiana Supreme Court recently explained the meaning of "scope of employment" in the context of governmental immunity in the case of Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450 (Ind. 2000). "[C]onduct . . . of the same general nature as that authorized, or incidental to the conduct authorized," is within the employee's scope of employment. Id. at 453 (citations omitted). An act is incidental to authorized conduct when it "is subordinate to or pertinent to an act which the servant is employed to perform," or when it is done "to an appreciable extent to further his employer's business." Id. (citations omitted). Even the commission of an intentional criminal act may be considered as being within the scope of employment if "the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope." Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993). In this case, it appears that investigating a complaint and questioning a suspect are within the scope of employment and the claims of excessive force sprung from these authorized actions.
Furthermore, Plaintiff has not satisfied subsection (c) of Indiana Code section 34-13-3-5, requiring suits against individual employees to clearly allege that the acts are outside of the scope of employment or otherwise subject a municipal employee to personal liability. Because the complaint makes no claim that Harris was acting outside the scope of his employment, but rather implies that he was acting within the scope of employment, the court can only conclude that Plaintiff was asserting this claim against Harris for conduct as an employee of Greenwood so the spoliation claim against Harris will also be dismissed.
In addition, after Defendants challenged the Plaintiff's compliance with the ITCA, the Plaintiff at no time claimed that Harris was being sued in his individual capacity and therefore not subject to the requirements of the ITCA. Instead, Plaintiff contended that he substantially complied with the ITCA. This, combined with the failure to plead any of the requirements of Indiana Code section 34-13-3-5(c) requires judgement in favor of Harris on this claim.
VI. Conclusion
For the foregoing reasons, Defendants' Motion for Partial Summary Judgment will be GRANTED. Judgment will be entered in favor of Defendants on the claims described in paragraphs 19, 25, 26, 27, and 29. The claims described in paragraphs 16, 17, 18, and 23 against Harris individually appear to involve issues of fact to be decided at trial.
Paragraph 28 detailing a claim under the Indiana Constitution was previously dismissed by this court. Finally, paragraphs 24 and 30 make general allegations of constitutional deprivations which this court assumes refers to the excessive force claims that are to be decided at a later date and not the question of arrest without probable cause which the court has decided against the Plaintiff today. Because of the pendency of these remaining claims, a final judgment will not be entered at this time.
A conference will be set in a separate entry to select a trial date for the remaining claims for trial, that is, Plaintiff's claims pursuant to 42 U.S.C. § 1983 against Don Harris in his individual capacity for excessive force and for impeding his access to courts as reflected in the paragraphs mentioned above.
ALL OF WHICH IS ORDERED this 30th day of January 2002.
John Daniel Tinder, Judge United States District Court Copies to: