Opinion
Court of Appeals Case No. 20A-CT-2279
05-20-2021
Ron WHITT, Jeff Roseboom, Abbey Moffitt, Patrick Cicero, and Ron Colpitts, Appellant-Plaintiff, v. TOWN OF NEW CARLISLE, Appellee-Defendant.
Attorneys for Appellants: Daniel H. Pfiefer, James P. Barth, Pfiefer, Morgan, & Stesiak, South Bend, Indiana Attorneys for Appellee: Cathleen M. Shrader, Robert T. Keen, Jr., Fort Wayne, Indiana
Attorneys for Appellants: Daniel H. Pfiefer, James P. Barth, Pfiefer, Morgan, & Stesiak, South Bend, Indiana
Attorneys for Appellee: Cathleen M. Shrader, Robert T. Keen, Jr., Fort Wayne, Indiana
Bradford, Chief Judge.
Case Summary
[1] Ron Whitt, Jeff Roseboom, Abbey Moffitt, Patrick Cicero, and Ron Colpitts (collectively, "Appellants") all worked at the New Carlisle Town Hall (the "Town Hall"). Though the Town Hall has had video surveillance installed since 2009, no audio recording devices have ever been purchased by New Carlisle (the "Town") or discovered in the building. Over the course of several years, Appellants noticed a pattern in which they would discuss a subject in private in the Town Hall, only to have someone who was not present for the conversation mention a discussed topic. Eventually, the Appellants became concerned that their conversations were being recorded. At some point the Appellants concluded that New Carlisle Police Department ("NCPD") Officer Brian Thompson, among others, had been spying on conversations occurring in either the police chief's office or the Clerk's Office. After Appellants filed their cases, which were consolidated under one cause number, the Town filed its motion for summary judgment. The trial court held a hearing and later granted summary judgment for the Town. Appellants appeal, alleging that the trial court erred when it granted summary judgment for the Town by finding that Appellants had not designated any evidence alleging that the Town had violated the Indiana Wiretap Act (the "IWA") or that a § 1983 violation had occurred. Because we believe that, in granting summary judgment, the trial court properly considered the evidence presented by the Town refuting Appellants’ claims and Appellants’ failure to designate evidence showing that electronic communications were intercepted or anyone with final decision-making authority acted to violate their rights, we affirm.
Facts and Procedural History
[2] The Town Hall contains the Office of the Clerk and the Town's Clerk-Treasurer, occupied by Sue Moffitt, and the Town Council chambers on the main floor and the NCPD in the basement. Roseboom was Chief of Police for the NCPD from 2013 until his retirement in March of 2018. Cicero, a friend of Chief Roseboom, was hired to be a part-time detective. Colpitts was a member of New Carlisle Town Council until 2016 and is Sue's brother-in-law and Abbey's uncle. NCPD Sergeant Whitt was promoted to Sergeant by Chief Roseboom. Sergeant Whitt also did some information technology work for the NCPD. Thompson, who at some point was promoted to assistant chief; eventual NCPD Chief Caleb Dittmar; and Officer Jim Niedbalski all worked in the Town Hall at times relevant to this case.
[3] Video surveillance equipment was installed in the Town Hall between 2009 and 2010. In 2015, the Town contracted to replace the existing surveillance system in the Town Hall. Chief Roseboom directed the replacement, including where the new cameras were to be placed and that the system purchased and installed was only to record video, not audio. Monitors were installed in the Clerk's Office, the NCPD squad room, where the door to the evidence room was, and the NCPD's reception room.
[4] The Town did not purchase any audio components for the surveillance equipment, none were attached to the individual cameras when they were installed, and the systems software was configured in such a way to disable any ability to capture audio. Sergeant Whitt and Chief Roseboom were trained on the system, which was protected by a password set by Chief Roseboom. The system was localized such that, to review what had been captured by the surveillance system, a person would have to go where the server was kept in Chief Roseboom's office, which was restricted.
[5] Over the course of about one year, Appellants had numerous conversations about a variety of different topics, some of which were fairly mundane. During that time, the Appellants noticed, and began to grow nervous about, the possible indications that their conversations were being recorded or listened to somehow. Appellants suggest that they would often have a private conversation, involving only two or three persons, then later a person who was not privy to the conversation would bring up some detail of the conversation without anyone having told them. While most of these conversations were in person, a few of the conversations in question were also phone conversations, though Appellants do not seem to suggest that the phone lines themselves were under surveillance, but rather that the person making the phone call in the Town Hall was being surveilled by a hidden device in their office, which was monitored and utilized by Assistant Chief Thompson, Officer Niedbalski, and Chief Dittmar. The trial court described an acrimonious relationship between the parties spanning well over a decade, much of which colors the narrative of the Appellants’ claims.
[6] Appellants Roseboom, Abbey, Detective Cicero, and Colpitts filed their complaint against the Town on December 3, 2018. On February 11, 2019, the Town filed a motion for a more definite statement seeking information on what the Appellants were alleging in their complaint, which the trial court responded to by ordering the Appellants to file an amended complaint providing more definite statements regarding their claims. On March 18, 2019, Ron Whitt initiated a separate, nearly identical claim, against the Town. The Town filed a motion to consolidate the actions, which both parties agreed to on April 10, 2019. Following discovery, the Town filed a motion for summary judgment along with a brief and a designation of evidence. On November 16, 2020, following a hearing on the motion, the trial court granted the Town's motion for summary judgment.
Discussion and Decision
[7] "On appeal, the standard of review of a summary judgment ruling is the same as that used in the trial court[.]" Gunkel v. Renovations, Inc. , 822 N.E.2d 150, 152 (Ind. 2005). "[S]ummary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Beta Steel v. Rust , 830 N.E.2d 62, 67 (Ind. Ct. App. 2005) ; Ind. Trial Rule 56(C). "The movant must demonstrate that ‘the designated evidence raises no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ Upon this showing, the nonmoving party then has the burden to demonstrate that there is no genuine issue of material fact. AM General LLC v. Armour , 46 N.E.3d 436, 439 (Ind. 2015). "All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party." Gunkel , 822 N.E.2d at 152. "The non-moving party has the burden on appeal to persuade us that the trial court's grant of summary judgment was erroneous." Shenmei Yuan v. Wells Fargo Bank, N.A. , 162 N.E.3d 481, 486 (Ind. Ct. App. 2020). "We must carefully review decisions on summary judgment motions to ensure that the parties are not improperly denied their day in court." Estate of Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind. 1999). However, we may "affirm the trial court's summary judgment ruling on any basis supported by the designated evidence." Shenmei Yuan , 162 N.E.3d at 486.
Appellants argue that the trial court erred by applying the federal standard for summary judgment rather than the Indiana standard. However, here the trial court quoted the Indiana summary judgment standard, citing Glon v. Mem'l Hosp. of South Bend, Inc. , 111 N.E.3d 232, 237 (Ind. Ct. App. 2018), trans denied (quoting Ind. Trial. Rule 56 (C) ), and there is no indication in the record that the trial court miscited, misquoted, or intentionally misapplied the federal standard in place of the Indiana standard. As outlined in the following sections, regardless of the standard, the Appellants have failed to meet their burden to preclude summary judgment under either the Indiana or the federal summary judgment standard.
[8] Summary judgment is appropriate if the designated evidentiary matter shows 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. Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009). "A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. "Mere suppositions, such as unsupported statements in pleadings, cannot support summary judgment, but a scintilla of evidence, such as a self-serving affidavit, is enough." Cox v. Mayerstein-Burnell Co., Inc., 19 N.E.3d 799 (Ind. Ct. App. 2014) (citing Hughley v. State , 15 N.E.3d 1000, 1002 (Ind. 2014) ). "While summary judgment is a high bar, that bar does not require that movants create, and then negate, alternative theories of liability of which they have no notice from the pleadings." Cox , 19 N.E.3d at 807.
I. IWA
[9] The IWA states that "a person who knowingly or intentionally intercepts a communication in violation of this article commits unlawful interception, a Level 5 felony." Ind. Code. § 35-33.5-5-5. As the trial court pointed out, "[t]he IWA only applies when what is being recorded or captured is itself something that is electronic in nature. The absence of a reference to ‘oral communications’ as included in the Federal Wiretap Act, can only mean that the IWA does not cover interceptions of oral communications." Appellant's Br. Vol. II p. 18; see also Leatherman v. State , 101 N.E.3d 879, 886 (Ind. Ct. App. 2018) ("If the language of a statute is clear and unambiguous, we simply apply the statute's plain and ordinary meaning, heeding both what the statute says and what it does not say.") For purposes of the IWA, "interception" is "the intentional recording or acquisition of the contents of an electronic communication by a person other than a sender or receiver of that communication, without the consent of the sender or receiver, by means of any instrument, device, or equipment under this article." Ind. Code § 35-31.5-2-176. Further, the parties’ briefs and our research have found no cases in which wholly oral communications were held to fall under the IWA. See State v. Lombardo , 738 N.E.2d 653 (Ind. 2000) (concerning a husband's use of a tape recorder to record private telephone conversations between his wife and a third party); see also Apter v. Ross , 781 N.E.2d 744 (Ind. Ct. App. 2003) (concerning a parent intercepting the phone conversations between child and the other parent); see also Edwards v. State , 862 N.E.2d 1254 (Ind. Ct. App. 2007) (concerning a prison's interception and recording of prisoner's telephone conversations).
[10] Here, the Appellants have designated no evidence that electronic communications were intercepted, alleging only that security cameras or hidden devices in offices may have been secretly recording audio, allegations which only entail the interception of oral communication. Further, while Appellants claim that those audio devices may also have captured one side of a phone conversation at times, or that an office phone may have been used to capture oral conversations occurring in an office, those interceptions would also not fall under the IWA, as that statute only covers the interception of communication during its transmission.
[11] The trial court determined as a matter of law that this statute, like the Federal Wiretap Act, does not cover one-sided electronic communication surveillance. See Rene v. G.F. Fishers, Inc. , 817 F. Supp. 2d 1090 (S.D. Ind. 2011) (concluding that a keylogger software that records keystrokes made on one computer was not covered under the FWA because the interception must occur "while the transmission is travelling.") The Town's designated evidence showed there were no allegations of any intercepted communications that fell within the scope of IWA, nor did any of the Appellants’ evidence show that there were any allegations or material facts that any such recording that would violate the IWA took place. We are not convinced that the trial court erred by granting the Town's motion for summary judgment on Appellants’ IWA claim.
II. Section 1983
[12] "It is only when the execution of the government's policy or custom ... inflicts the injury that the municipality may be held liable under § 1983." Springfield, Mass. v. Kibbe , 480 U.S. 257, 267, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987) (internal quotations omitted). "The official policy requirement of Monell was intended to distinguish acts of the municipality from acts of the municipality's employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible." Pembaur v. City of Cincinnati , 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (internal quotations omitted). Therefore, a municipality's official acts include only those of government officials "whose acts or edicts may fairly be said to represent official policy." Monell , 436 U.S. at 694, 98 S.Ct. 2018. Appellants argue that because the Town did not "designate evidence that an official policy, widespread custom, or action by an official with policy-making authority was not a ‘moving force’ behind [Appellants’] constitutional injury," they failed to "affirmatively negate an essential element of § 1983 liability[....]" Appellant's Br. p. 16 (citing Dixon v. Cty. of Cook , 819 F.3d 343, 348 (7th Cir. 2016) ). Appellants contend that this failure means that the trial court erred in granting summary judgment on the Town's § 1983 liability.
Monell v. Dept. Soc. Servs. of City of N.Y. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
[13] We are unpersuaded. The Town designated evidence showing that the Town Council, which has the power to perform town functions and generally act as the decision-making body for the Town, never authorized the creation or operation of an audio surveillance system in the Town Hall. Further, the Appellants have failed to designate any evidence to suggest that a Town employee with final policy-making authority over the town acted to create an audio surveillance system. Although they have made claims regarding certain police officers and town employees, none of those individuals are alleged to have final decision-making authority to implement the alleged surveillance. As the trial court points out, even if the Chief of Police ordered and oversaw the installation of a security system, a police chief "is the final policymaker for his municipal police department" but not for the Town. App. Vol. II p. 20 (citing Eversole v. Steele , 59 F.3d 710, 716 (7th Cir. 1995) ). Without a suggestion that someone at the "apex" of policy making authority acted in a way to harm Appellant's constitutional rights, see Gernetzke v. Kenosha Unified Sch. Dist. No. 1 , 274 F.3d 464, 468 (7th Cir. 2001), cert. denied , we cannot say that the trial court erred in granting summary judgment on Appellants’ § 1983 claim.
[14] The judgment of the trial court is affirmed.
Vaidik, J., and Brown, J., concur.