Opinion
Cause No. 1:01-CV-186
May 30, 2002
MEMORANDUM OF DECISION AND ORDER
Currently before the Court is a motion for summary judgment filed by the Defendants in this case, the City of Fort Wayne and Bradley D. Schultz ("Schultz"), on March 14, 2002. Also on March 14, 2002, this Court issued a notice and order, consistent with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), informing the pro se plaintiff in this case, Benjamin F. Shaw, Sr. ("Shaw"), that he had an obligation to respond to the motion for summary judgment with affidavits or other evidence by April 17, 2002. On April 8, 2002, Shaw moved to extend the deadline for his response. This Court granted Shaw's motion and extended the response deadline to May 17, 2002. To date, Shaw has not filed a response to the motion for summary judgment. Accordingly, Defendants' motion for summary judgment will be GRANTED.
FACTUAL BACKGROUND
On October 24, 2998, Derrian Stanley ("Stanley") and Brad Ferrier ("Ferrier") were working at the Wooden Nickel located at Southgate Plaza at 354 East Pettit Avenue in Fort Wayne, Indiana. Sometime after 8:00 p.m., Stanley noticed a suspicious person walk by the front of the store window wearing a grey hooded sweatshirt pulled up over his head. It appeared that the individual had a black mask covering his face. Stanley ran to the front door, grabbed the door handle, and attempted to keep the individual from entering the store. While attempting to keep the door closed, Mr. Stanley noticed that the individual was carrying a handgun in his right hand. The handgun was silver/chrome in color.
Stanley let go of the door handle and ran behind the counter. At that point, the person with the grey hooded sweatshirt and black mask came in the door pointing the handgun at Ferrier and Stanley. The handgun was in the person's right hand and was pointed directly at Ferrier's and Stanley's heads.
The person, who was later identified as David Shaw demanded that Ferrier and Stanley "Give me money." Stanley opened the cash register, took the money out and laid it on the counter. David Shaw then ordered Stanley to "put the money in the bag." Stanley placed the money in a bag and handed it to David Shaw. David Shaw then asked about a safe. Stanley told David Shaw that the Wooden Nickel store does not have a safe. David Shaw asked, "Swear to God?" Stanley responded by saying, "I swear to God we do not have a safe." During this entire time, David Shaw kept the gun pointed directly at Ferrier and Stanley.
After Stanley informed David Shaw that there was no safe, David Shaw began backing up toward the door, still pointing his gun at Ferrier's and Stanley's heads. David Shaw pushed open the door to exit the store. David Shaw was carrying the bag of money in his left hand and the handgun in his right hand. During the entire time David Shaw was in the store, both Stanley and Ferrier feared that David Shaw would shoot them.
While David Shaw was in the Wooden Nickel, Stanley observed through the window a police car parked in front of the Wooden Nickel store. The police car belonged to Officer Schultz of the Fort Wayne Police Department. Schultz had been cruising his assigned district in full police uniform and driving a fully marked squad car. While driving by the Southgate Shopping Center, Schultz saw an individual with his/her back to him walking along the sidewalk and approaching the Wooden Nickel store. Schultz observed the individual struggling with the Wooden Nickel door. The person wore a hooded sweatshirt with the hood covering his head, long pants, and some type of mask that appeared to cover his/her face. It appeared the suspect had a handgun in his/her right hand.
Schultz saw the suspect go inside the Wooden Nickel store and parked his squad car, with its headlights illuminated, in front of the store. Schultz saw the subject inside the store pointing his/her gun at the store employees.
Officer Schultz notified communications from his car radio of a robbery-in-progress at the Wooden Nickel at Southgate Shopping Center and he exited his squad car. Schultz drew his weapon as he exited the vehicle because he believed that the suspect was armed with a handgun and was committing an armed robbery. Schultz gave a second transmission over his "handie-talkie" that there was a perpetrator inside, armed with a handgun.
Schultz moved to the sidewalk just west of the Wooden Nickel store entrance. Schultz leaned slightly forward and looked inside the store. He saw the suspect pointing a gun at the store employees.
The suspect then exited the store with his left side to Schultz. Schultz yelled at the suspect to "Stop-Police" and to "show his hands," but he did not. Instead, the suspect turned his head to the left and looked directly at Schultz. The suspect then began to pivot to his left toward Schultz. As he turned, the suspect raised his right hand, pointing his handgun directly at Officer Schultz. Schultz could see the muzzle of the suspect's gun. The suspect was also clutching a bag or sack in his left hand.
When the suspect pointed his weapon directly at Schultz, Schultz fired. The distance between Schultz and the suspect at the time Schultz fired the shots was approximately five to eight feet. The suspect was killed and was later identified as David Shaw.
Both Ferrier and Stanley heard Schultz yell "Stop." Stanley also saw David Shaw raise his right arm and point his gun at Schultz.
Benjamin L. Shaw, Sr. ("Shaw") initiated this action alleging that Schultz violated his deceased son, David Shaw's, Fourth and Fourteenth Amendment rights. Shaw further alleges that Schultz deprived Benjamin Shaw of the constitutional right of liberty and due process under the Fourteenth Amendment. Benjamin Shaw has also alleged state law negligence claims and a claim for punitive damages.
APPLICABLE LEGAL STANDARD
"Summary judgment is proper only if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). The standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)). Indeed, the Seventh Circuit has stated, "It is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained." Mason v. Continental Illinois National Bank, 704 F.2d 361, 367 (7th Cir. 1983).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
DISCUSSION
As noted above, on a motion for summary judgment, the burden is on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). Here, Shaw has not filed any response to the motion for summary judgment within the time allotted for him to do so. For this reason alone, Defendants' motion for summary judgment can be granted.
However, the Court notes that even if Shaw had filed a response, it is likely that the motion for summary judgment would be granted. Defendants have produced the affidavits of two witnesses — Ferrier and Stanley — that corroborate Schultz's statement that David Shaw pointed a handgun at the Wooden Nickel employees; that he had a black mask over his face; that Officer Schultz yelled at David Shaw to "Stop-Police" and "show his hands," but David Shaw did not; and that David Shaw pointed his handgun directly at Schultz. In the face of these facts, it is difficult to imagine what response the plaintiff could have that would make judgment as a matter of law inappropriate in this case. Certainly, Schultz's use of deadly force was justified under both Fourth Amendment jurisprudence and Indiana law, given that he had witnessed David Shaw threaten Ferrier and Stanley with a handgun and that David Shaw pointed the gun directly at Schultz. Moreover, such a justified use of force can hardly provide a basis for Shaw's Fourteenth Amendment, negligence, and punitive damages claims. In short, the evidence in this case appears to be so one-sided that judgment as a matter of law is appropriate. As a result, Defendants' motion for summary judgment will be granted.
CONCLUSION
Based on the foregoing, Defendants' motion for summary judgment is hereby GRANTED. The Clerk is DIRECTED to enter judgment in favor of the Defendants.