JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is Defendants' Motion for Partial Summary Judgment, [dkt. 78], which the Court
A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that
As the current version Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir.2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims or a defendant's affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir.1999). And when evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve "any doubt as to the existence of a genuine issue for trial ... against the moving party." Celotex, 477 U.S. at 330, 106 S.Ct. 2548. A movant should not argue any fact to support its motion that is contested by admissible evidence.
The facts supported by admissible evidence and viewed in the light most favorable to the non-moving parties, Plaintiffs Theodore Ebeyer and Britnee Ebeyer, though not objectively established as true, are as follows: On August 16, 2006, seventeen-year-old Britnee was approached by Defendant Greenwood Police Department ("GPD") Officer Joseph Rodriguez and two other officers as she sat in a vehicle with a friend, Ryan Huffman. [Dkt. 21-1 at ¶ 6; dkt. 79 at 3.] During that stop, drugs and alcohol were found on Mr. Huffman, and he was arrested. [Dkt. 79 at 3.] Britnee was not arrested, but Officer Rodriguez informed her he had ample evidence to arrest her but that he would not do so if she agreed to accompany him for a ride. [Dkt. 21-1 at ¶ 9.] Britnee agreed to go on a ride in Officer Rodriguez's unmarked police vehicle. [Id.]
Officer Rodriguez drove Britnee around for approximately three hours. [Dkt. 21-1 at ¶ 10.] During the ride, Officer Rodriguez told Britnee about her father Theodore Ebeyer's illegal drug activities. [Dkt. 21-1 at ¶ 11.] Specifically, he said that Mr. Ebeyer was a known drug dealer and that he and other members of his family used various family businesses as "fronts" for illegal activities. [Id.] Officer Rodriguez also told Britnee that he and certain GPD officers were out to "get" her father
At the Ebeyer home, Officer Rodriguez engaged Mr. Ebeyer in a conversation regarding Britnee's agreement to do undercover work, where Officer Rodriguez assured him that Britnee "was not in any trouble" but that the GPD would need her to cooperate in a drug investigation against her friend, Ryan Huffman. [Dkt. 21-1 at ¶ 20.] After Officer Rodriguez left, Britnee told her father that he threatened to arrest her if she did not help him to set up her friend, Ryan Huffman, on a heroin transaction. [Dkt. 21-1 at ¶ 21.]
On August 17, 2006 Britnee received a phone call from law enforcement explaining when and where she would be receiving the drugs in order to set up her friend. [Dkt. 21-1 ¶ 22.] Britnee told her father about the call. [Id.] Before the drug pick up and without Theodore Ebeyer present, Britnee was outfitted with a wire. [Dkt. 79 at 8.] Mr. Ebeyer drove Britnee to the pickup site. [Dkt. 21 at ¶ 22.] Britnee completed the cocaine purchase under constant police visual and video surveillance. [Dkt. 79 at 8.] After leaving the pickup site, Mr. Ebeyer was pulled over by Defendant Richard Kelly. [Dkt. 21-1 at ¶ 25.] During the stop, Mr. Ebeyer told Britnee to put the drugs into her jeans. [Dkt. 21-1 at ¶ 28.] As a part of the stop, Britnee was searched and the drugs were discovered. [Dkt. 21-1 at ¶ 29.]
At the scene of the stop, Mr. Ebeyer was arrested and charged with Possession, Neglect of a Dependent and Dealing in Cocaine. [Dkt. 21-1 at ¶ 31.] Plaintiff Britnee was not arrested or charged with any crime. [Dkt. ¶ 33.] On March 5, 2008 each of the three charges against Theodore were dismissed by the Johnson County prosecutor. [Dkt. 21-1 at ¶ 34.] One of those charges was refiled, with the only remaining charge being Possession of Cocaine. [Dkt. 79 at 10.] Mr. Ebeyer was
Mr. Ebeyer and his daughter, Britnee Ebeyer have brought claims against four GPD s, Joseph Rodriguez, Jeffrey McCorkle, Matthew Fillenwarth and Richard Kelly in their individual capacities under 42 U.S.C. § 1983. Britnee alleges a Fourth Amendment unlawful seizure claim and a state-law claim of battery.
Britnee alleges Officer Rodriguez's contact with her constituted an unlawful seizure within the meaning of the Fourth Amendment because Officer Rodriguez detained Britnee in his unmarked police cruiser by use of a coercive threat to arrest her
To be held individually liable, a defendant must be personally responsible for the deprivation of a constitutional right. See Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.2001) (citation omitted) (explaining § 1983 liability in the context of a superior liability claim).
A defendant will be deemed to have sufficient responsibility where he directed the conduct or if the conduct occurred with his knowledge or consent. [Id. at 652.]
Here, the Plaintiffs cite no facts in the complaint to assert that the other officers were in anyway involved with the alleged seizure of Britnee Ebeyer. [See dkt. 21-1 at 8-19.] Likewise, Britnee Ebeyer's deposition provides no facts to support that the other named officers were either directly involved or complicit in Britnee's alleged coerced entry into Officer Rodriguez's car or his later coerced sex act. [See dkt. 81 at 8 (where Plaintiff only briefly mentions that two other unnamed officers were also in the church parking lot
The Fourth Amendment to the Constitution protects citizens "against unreasonable searches and seizures." U.S. Const. Amend. IV. A Fourth Amendment seizure does not require a formal arrest; rather, an seizure requires an "intentional acquisition of physical control." Brower, 489 U.S. 593, 595-596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). See Brower v. County of Inyo, 489 U.S. 593, 595, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). Thus, to survive a motion for summary judgment, Plaintiffs must allege sufficient facts to show that Officer Rodriguez took actions designed for the purpose of detaining Britnee Ebeyer.
In their response brief, Defendants have raised the defense of qualified immunity. Qualified immunity protects governmental officials performing discretionary functions from liability for civil damages if their conduct does not clearly violate established statutory or constitutional rights of which a reasonable person would have known. Wilson v. Formigoni, 42 F.3d 1060, 1064 (7th Cir.1994). This principle applies to law enforcement officers who act reasonably but are mistaken. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
In determining whether an officer is entitled to qualified immunity, "the first inquiry must be whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no constitutional right has been violated, that is the end of the qualified immunity analysis. Id. at 201, 121 S.Ct. 2151. If a violation could be made out on the facts taken in the light most favorable to the plaintiff, the next step "is to ask whether the right was clearly established," namely, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-02, 121 S.Ct. 2151.
Here, Britnee has satisfied that burden. She attests that Officer Rodriguez used a threat of arrest as a coercive tool to get her into his car. [Dkt. 89-5 at 2.] She further attests that Officer Rodriguez "grabbed [her] and removed [her] from the other officer's vehicle" and that "she never felt she was free to leave." [Id.] Coupled with her deposition testimony that Officer Rodriguez put his gun on his lap during the alleged unlawful detention, asked whether she liked guns, and then made her put her mouth on his penis [dkt. 89-1 at 8], the Court therefore finds Britnee's testimony creates genuine issues of material fact exist concerning the nature of her detention that would support both that a seizure occurred and that no reasonable officer would believe that such a seizure was lawful. Accordingly, a finding of qualified immunity is precluded, and the Court will not grant summary judgment on that ground.
Defendants allege as an alternative basis for summary judgment that no reasonable
In support of their motion, Defendants challenge Britnee Ebeyer's timeline of her ride in Officer Rodriguez's patrol car. Defendants point out that Britnee Ebeyer's account of the ride estimates that she and Officer Rodriguez were in the car for approximately three hours after leaving the church parking lot. [See dkt. 89-1 at 9.] Defendants argue that this account is blatantly contradicted by the dispatch records which show the ride lasted no more than 36 minutes after leaving the church parking lot. [Dkt. 79 at 15.] Further, dispatch records show only 16 minutes passed between the Officer's arrival at the GPD and the time when Britnee returned home. [Dkt. 79 at 16.] This discrepancy, the defendants argue, shows that there was no way Officer Rodriguez had the time to commit battery against Britnee.
The Court rejects the argument that a discrepancy in the time is determinative of a motion for summary judgment because the timeline is collateral to the critical issue of fact in this case: whether the alleged forced sex act occurred. Defendants have not provided the Court with evidence that clearly refutes Britnee's assertion that the battery occurred. Rather, Defendants have presented only evidence that merely supports the contention that it is unlikely the battery could have occurred given the narrow time frame.
In the alternative, Defendants argue Britnee's claim is improper under the Fourth Amendment because the alleged battery did not occur during the course of an attempted arrest or apprehension of a suspect involved in criminal conduct. [Dkt. 79 at 18.] At least one Circuit has recognized that in the context of seizure by use of excessive force claims, harm that is not inflicted during the course of an arrest or apprehension of a suspect is properly analyzed as a violation of substantive due process rights under the Fourteenth Amendment, not under the Fourth Amendment. See Jones v. Wellham, 104 F.3d 620, 628 (4th Cir.1997); see also Wragg v. Thornton, 604 F.3d 464 (7th Cir. 2010) (where the Court analyzed alleged molestation committed in the defendant's capacity as a fire chief as a substantive due process claim).
But Britnee does not make a claim of unlawful seizure by use of excessive force. Rather, Britnee brings a claim only for unlawful seizure. [Dkt. 21-1 at 7.] In this context, the Supreme Court has explained that an unlawful seizure requires an "intentional acquisition of physical control" and that even an unintended person can be the object of the taking. See Brower, 489 U.S. at 595-596, 109 S.Ct. 1378. Thus, a claim of unlawful seizure can be sustained even when not in the context of an arrest or during the apprehension of a suspect. Furthermore, Fourth Amendment reasonableness "depends not only on when a seizure is made, but also how it is carried out," Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and threatening prosecution to coerce victims into sex acts is objectively unreasonable. See Arias v. Allegretti, 2008 WL 191185, *3, 2008 U.S. Dist. LEXIS 4352, *8-9 (N.D.Ill.2008) ("Allegretti's use of his authority as a police officer and the threat of prosecution to coerce (or attempt to coerce) plaintiffs to expose themselves and engage in sexual acts unwillingly, if true, was objectively unreasonable and would violate the Fourth Amendment"). For these reasons, the Court rejects Defendants' argument that this claim was improperly brought as a Fourth Amendment violation. Summary judgment on this ground is denied.
Britnee Ebeyer also alleges a state-law claim of battery against Officer Rodriguez.
Under the ITCA, a plaintiff must file a Tort Claim Notice against the appropriate political subdivision when filing state law tort claims against a governmental authority in his individual capacity if the act or omission causing the plaintiff's loss is within the scope of the defendant's employment. Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.Ct.App.1996). Britnee alleges that because the alleged battery by Officer Rodriguez was committed outside the scope of his employment, she need not comply with the ITCA. [Dkt. 89 at 17.]
Under Indiana law, "[a]n employee is acting within the scope of his employment when he is acting, at least in part, to further the interests of his employer." City of Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind.Ct.App.1999). Although Officer Rodriguez attempts to analogize this case to Southport Little League v. Vaughan, 734 N.E.2d 261, 268 (Ind.Ct. App.2000), where an equipment manager authorized to fit boys with athletic uniforms viewed their genitalia for his own gratification, the Court finds that case distinguishable from the present situation as the act of oral sex is not incidental to any authority or responsibility given to Officer Rodriguez. Viewing the facts in the light most favorable to Britnee, Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548, the Court finds that the alleged act did not occur within the scope of Officer Rodriguez's employment and, accordingly, her claim is not barred by any failure to comply with the ITCA.
Defendants make much of the fact that Plaintiffs allege in their Complaint that Officer Rodriguez "at all relevant times ... were acting under color of state law," [dkt. 21-1 at 2], and argue that Plaintiffs contradict themselves in claiming that Officer Rodriguez acted outside the scope of his employment. [Dkt. 94 at 9-10.] However, as defined by Indiana law, acting outside the scope of one's employment is not mutually exclusive with acting under color of state law. See Pickrel v. City of Springfield, 45 F.3d 1115, 1118-19 (7th Cir.1995) (rejecting the notion that because a police officer was off-duty and acting solely to serve the interest of a private entity and not his government employer, he could not have acted under color of state law). Because a finding that Officer Rodriguez acted under color of state law may be compatible with a finding that he acted outside the course and scope of his employment, his motion for summary on that ground is therefore denied.
Mr. Ebeyer asserts § 1983 claims for alleged violations of the First, Fourth and Fourteenth Amendments. The Court will consider each of his claims in turn.
Mr. Ebeyer first alleges that Defendants violated his First Amendment rights by arresting him in alleged retaliation for voicing complaints about members of the Greenwood City Police Department. Mr. Ebeyer claims that because the speech related to a matter of public concern, it is protected under the First Amendment. [Dkt. 89 at 19.] Defendants argue in response that Mr. Ebeyer suffered no deprivation under the First Amendment because his arrest was for cocaine possession, not for his speech, and that he is barred from challenging the validity of his conviction for that offense. [Dkts. 79 at 28; 94 at 16.]
The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
As Defendants correctly point out, Mr. Ebeyer's claim challenging the validity and motives behind his arrest is barred by Heck v. Humphrey, 512 U.S. 477, 486-487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court of the United States held that a convicted criminal may not bring a civil suit questioning the validity of his conviction unless that conviction has been reversed, expunged, or otherwise declared invalid. Id. at 486-487, 114 S.Ct. 2364.
Here, Mr. Ebeyer claims that "unlawfully punished for [his speech] when he was arrested in retaliation for exercising that right," [dkt. 89 at 19]. It is undisputed however, that Mr. Ebeyer's has not been overturned, but instead was upheld by the Indiana Court of Appeals and denied transfer to Indiana Supreme Court. Although Mr. Ebeyer contends that he is not challenging the validity of his arrest and conviction, [dkt. 89 at 19], as the Seventh Circuit has explained, it is "irrelevant" whether Mr. Ebeyer disclaims any intention of challenging his own conviction; "if he makes allegations that are inconsistent with the convictions' having been valid, Heck kicks in and bars his civil suit." Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.2003). Accordingly, the Court finds that Mr. Ebeyer is barred from challenging the validity of his arrest and subsequent conviction as retaliatory and therefore grants summary judgment in favor of Defendants on this claim.
Even if Heck did not bar Mr. Ebeyer's claim, Defendants would still be entitled to summary judgment. Because Defendants have raised the defense of qualified immunity, it is Mr. Ebeyer's burden to establish that a clearly established constitutional right was violated on the facts alleged, and that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151. Claiming only that "but for" his attorney's advice, he would continue speaking out at GPD, Mr. Ebeyer has failed to make such a showing here. Defendants are therefore entitled to summary judgment on Mr. Ebeyer's First Amendment claim even without the bar to recovery imposed by Heck.
Mr. Ebeyer also claims that Defendants violated his Fourth Amendment rights by unlawfully seizing him. Defendants argue that Mr. Ebeyer's arrest was lawful, and his claim to the contrary is barred by Heck.
The Fourth Amendment to the United States Constitution protects citizens from unlawful searches and seizures. U.S. Const. Amend. IV. Here, Mr. Ebeyer has not specified what conduct by Defendants constituted an unreasonable seizure. To the extent that Mr. Ebeyer challenges his arrest, Defendants are correct in asserting that Mr. Ebeyer's claim is barred however by Heck — the only "seizure" the officers conducted was Mr. Ebeyer's arrest, and that arrest has been deemed lawful, eventually resulting in Mr. Ebeyer's conviction.
Mr. Ebeyer's entire response to Defendants summary judgment motion on this issue is as follows:
[Dkt. 89 at 19.] As the Court explained earlier, Mr. Ebeyer is barred from making allegations, such as these, that are inconsistent with his conviction's having been valid. Okoro, 324 F.3d at 490. Therefore, the Court grants summary judgment to the Defendants on Mr. Ebeyer's Fourth Amendment claim.
Lastly, Mr. Ebeyer claims that Defendants violated his right to due process under the Fourteenth Amendment. Defendants argue in response that this claim, like Mr. Ebeyer's other claims, is barred under Heck.
The Due Process Clause of the Fourteenth Amendment provides that the government shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. Here, Mr. Ebeyer contends that he "was arrested, charged, prosecuted, and sentenced as a result of [Defendants'] deliberate acts." [Dkt. 89 at 20.] He further contends that "[] Rodriquez [sic] cooked up a scheme with Britnee Ebeyer to have him caught with drugs he did not intend to personally possess" and that "this was an effort to punish a man whose only crime was to be a pesky annoyance to [GPD]." [Id.]
As stated above, any argument by Mr. Ebeyer challenging the validity of his conviction is unavailing in light of the Supreme Court's holding in Heck, 512 U.S. at 486-487, 114 S.Ct. 2364. Mr. Ebeyer is barred from making allegations, such as these, that are inconsistent with his conviction's having been valid. Okoro, 324 F.3d at 490. Accordingly, the Court denies Defendants' motion for summary judgment on this claim.
For the foregoing reasons, the Court
