Opinion
Cause No. 1:01-CV-214
June 4, 2002
MEMORANDUM OF DECISION AND ORDER
Currently before the Court is a motion for summary judgment filed by the Defendants in this case, Tad Davis ("Davis"), William Thomas ("Thomas"), and the Fort Wayne Police Department ("FWPD") on March 1, 2002. Also on March 1, 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, Richard Austin, Jr. ("Austin"), that he had an obligation to respond to the motion for summary judgment with affidavits or other evidence by April 5, 2002. On April 4, 2002, Austin sent a letter to the Court that the Court deemed a motion to extend the deadline for Austin's response. This Court granted Austin's motion and extended the response deadline to May 24, 2002. To date, Austin has not filed a response to the motion for summary judgment. Accordingly, Defendants' motion for summary judgment will be GRANTED.
FACTUAL BACKGROUND
On April 28, 2001, Austin was attending a party at a friend's house on Pontiac Street in Fort Wayne, Indiana. At the party, individuals were barbecuing, playing cards, and moving from one house to another. As the party progressed, police cars drove past the party houses. Defendants Davis and Thomas, in their marked police car, drove past the party.
About one or two hours into the party, Austin, his adult son, and his brother, Michael Bishop ("Bishop"), got into Bishop's car to proceed to another friend's house. Bishop was driving; Austin was the front seat passenger; and Austin's son was in the back seat. Bishop drove down Pontiac Street and made a right turn onto Alexander Street. Officers Davis and Thomas observed the vehicle cross the center line, noticed that Bishop was not wearing a seatbelt, and observed that the front windshield was cracked. They pulled the vehicle over.
Davis and Thomas approached the stopped car and asked for Bishop's identification. Bishop informed him that he did not have a driver's license. Davis and Thomas also asked Austin and his son for identification and they gave their driver's licenses to the officers. Davis and Thomas asked Bishop to exit the car. The officers determined that Bishop had a suspended driver's license for life as a habitual traffic offender. Bishop also blew a 0.14 blood alcohol level on the officers' portable Breathalyzer, exceeding the legal limit for driving while intoxicated. Davis and Thomas then arrested Bishop and placed him in the back seat of their squad car.
After the officers placed Bishop in the squad car, they returned to the passenger side of Bishop's vehicle to speak with Austin One of the officers requested that Austin unbuckle his seatbelt and get out of the car. Austin told the officers that they had his identification and asked why they wanted to question him. Austin was upset because he did not think the officers had a good enough reason to pull them over. Davis and Thomas believed that Austin appeared drunk and was uncooperative. Austin's eyes were bloodshot, he was slurring his words, and he was talking very loudly. He also smelled strongly of alcohol.
Austin alleges that when he refused to exit the vehicle, one officer grabbed Austin by the shoulder and "snatched" him out of the vehicle. The officer then pushed him against the car and told him to breathe into the portable Breathalyzer. Austin refused. The officer then pushed or slid him toward the back of the car.
One of the officers asked Austin why he was chewing on paper. The officers were suspicious because they were aware that crack cocaine is often carried in napkins, tissue, or toilet paper. They also knew that individuals carrying crack cocaine sometimes attempt to eat the substance when confronted by the police. Austin claims that he was chewing on the toilet paper as a matter of habit. The officers asked him to spit it out, which he did. Austin claims one of the officers called him a "crack head." The officers did not find any illegal drugs in the toilet paper Austin spit out.
The officers then informed Austin that he was under arrest for public intoxication. Austin then voluntarily faced the car and one of the officers kicked Austin between his ankles to spread his feet into a wider stance. One of the officers searched Austin and took some money and a cell phone from Austin's pocket and placed it on the back of the car. The officer asked Austin if he was on parole and Austin indicated that he was. The officer then inquired about his parole officer and Austin informed the officer that Austin's parole officer's name was Mr. Hobbs. Austin was handcuffed and placed in the squad car. The officers then took Austin to lockup. He was charged with public intoxication, but the charge was ultimately dismissed.
Austin asserts he received a sprained ankle arising out of the arrest. He claims this occurred when the officer snatched him out of the car and pushed him toward the back of the car. Austin did not fall during the arrest. Austin has been in lockup on numerous occasions and knows if he has a medical complaint he is to inform the jail officials. Yet he made no complaints of injuries at lockup. Austin received no medical attention at the jail. Austin did not seek medical attention once he was released from jail the next morning.
Austin now sues Officers Davis and Thomas and the FWPD under 42 U.S.C. § 1983 on several grounds. First, Austin alleges that Defendants violated his First Amendment rights by interrupting him and by speaking to him in a manner that was intimidating, harassing, and degrading. He further asserts that he was subjected to an unreasonable search and seizure pursuant to the Fourth Amendment, which led to him being charged with public intoxication and the confiscation of money on his person. Finally, Austin asserts that he was deprived of due process of law in violation of the Fifth and Fourteenth Amendments.
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 all 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, Austin 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 Austin had filed a response, it is likely that the motion for summary judgment would be granted. The following paragraphs discuss each of Austin's claims in turn.
I. First Amendment Claim
Austin's complaint alleges that Defendants violated his First Amendment free speech rights by "cutting him off." Austin claims that when the officers asked him questions and he did not respond in the manner they desired, they interrupted him and called him a "crackhead." Quite simply, these allegations do not state a cause of action. There are some actions — even if they actually have the effect of chilling the plaintiffs speech — that are too trivial or minor to be actionable as a violation of the First Amendment. Cf. Keenan v. Tejeda, ___ F.3d ___, 2002 WL 720847 at *3 (5th Cir. 2002) (discussing a First Amendment retaliation claim). Here Austin merely asserts that he was interrupted and called a "crackhead." Even when viewed in the light most favorable to the plaintiff, being interrupted or called a "crackhead" is not so serious as to discourage a person of ordinary firmness from continuing to speak. Accordingly, summary judgment on Austin's First Amendment claim will be granted.
II. Fourth Amendment Claims
Austin's second claim is that Defendants arrested him and seized his property in violation of the Fourth Amendment. However, as discussed below, the facts surrounding the arrest clearly demonstrate that Davis and Thomas did not violate Austin's Fourth Amendment rights.
A. Improper Arrest
Austin first argues that his arrest was unlawful because the reasons the officers gave for pulling the vehicle over were implausible. When a law enforcement officer directs a motor vehicle to stop by the side of the road and detains its occupants for questioning, such an investigatory stop constitutes a search and seizure under the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648 (1979). A passenger in a car does have standing to challenge the stop of that vehicle as violative of the Fourth Amendment. See United States v. Wheat, 278 F.3d 722, 726 (8th Cir. 2001). However, under Terry and his progeny; "[a]n investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion." Ornelas v. United States, 517 U.S. 690, 693 (1996); see also United States v. Sharpe, 470 U.S. 675, 682 (1985) (applying Terry to the investigatory stop of a vehicle).
In this case, the officers stated that they pulled the car over because they observed it cross the center line, because they noticed that Bishop was not wearing a seatbelt, and because the front windshield was cracked. Austin asserts in his complaint that Bishop was, in fact, wearing a seatbelt and that the officers could not have observed the front windshield from their position behind the car. However, Austin does not contest the fact that the officers observed the car cross the center line. Moreover, without a response from Austin, there is nothing in the record to contradict the affidavit testimony of Davis and Thomas that they did, in fact, observe that Bishop was not wearing a seatbelt and the front windshield was cracked. Accordingly, the evidence submitted shows that the officers did have reasonable suspicion that the occupants of the car were involved in unlawful activity and the stop was lawful.
Moreover, once the officers stopped the car, there clearly was probable cause to arrest Austin for public intoxication. The existence of probable cause to arrest is an absolute bar to section 1983 claims for unlawful arrest. See Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993); Sheik-Abdi v. McClellan, 37 F.3d 1240, 1247 (7th Cir. 1994). Probable cause does not require overwhelmingly convincing evidence, but only "reasonably trustworthy information." See Beck v. Ohio, 379 U.S. 89, 91 (1964).
In this case, Austin was arrested for public intoxication. Ind. Code § 7.1-5-1-3 states that "it is a Class B Misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance." Indiana case law is clear that a passenger in a vehicle on a public highway is in a public place for purposes of the public intoxication statute. See Atkins v. State, 451 N.E.2d 55, 56 (Ind.App. 1983); Miles v. State, 216 N.E.2d 847, 849 (Ind. 1966). Moreover, Indiana courts have long recognized slurred speech, the odor of alcohol on one's breath, and aggressive behavior as evidence of intoxication. See Guy v. State, 678 N.E.2d 1130 (Ind.App. 1997). Here, the officers noticed that Austin smelled strongly of alcohol, he had bloodshot eyes, and he slurred his speech. Austin was also uncooperative and argumentative with the police officers. Based upon these facts, probable cause clearly existed for Austin's arrest.
B. Improper Search
Austin also appears to claim that the officers unlawfully removed his cell phone and money from his pockets in violation of the Fourth Amendment. The Seventh Circuit has held that the contents of an individual's pockets, including his wallet, may be properly searched incident to an arrest. See United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993). Here, Austin was arrested for public intoxication. During that arrest, one of the officers removed Austin's money and cell phone from Austin's pockets and placed them on the back of the car. Accordingly, Austin was subjected to a valid search incident to arrest.
C. Excessive Force
To the extent that Austin is asserting a claim for excessive force, that claim must also fail. In Lester v. City of Chicago, 830 F.2d 706 (7th Cir. 1987), the Seventh Circuit held that excessive force during arrest cases should be analyzed under a Fourth Amendment objective reasonableness test. See Lester, 830 F.2d at 710. The Court further explained:
The power to arrest necessarily carries with it the power to use some force to make an arrest. Police officers must make quick decisions in the field regarding the appropriate amount of force to use in making an arrest. However, the Fourth Amendment, by its very terms, sets the constitutional limit on the amount of force an officer may use while making an arrest. . . . If, under the totality of circumstances, a police officer unreasonably seizes a person by using excessive force, he has violated that person's Fourth Amendment rights. The objectively unreasonable seizure itself (regardless of the officer's motive or whether any injury inflicted was severe) crosses the constitutional threshold.Id. at 712. Thus, the pertinent inquiry is whether the officer's actions were "objectively reasonable" in light of the facts and circumstances presented to the officers, without regard to the officers' underlying intent or motivation. See Graham v. Connor, 490 U.S. 386, 397 (1989).
In this case, the evidence indicates that any use of force was not unreasonable. Austin claims that one of the officers pushed or slid him toward the back of Bishop's car and kicked his ankles into a wider stance. Austin was drunk and uncooperative. The minimal force used to place Austin at the back of the car and secure a wider stance was reasonable under those circumstances. Furthermore, Austin suffered no injury from the officers' actions. The Seventh Circuit has stated, "[w]hile an excessive force during arrest claim does not require proof of injury, no injury gives weight to the assertion of no excessive force." Meyer v. Robinson, 992 F.2d 734, 739 (7th Cir. 1993). Although Austin claims he sprained his ankle, he made no complaints at the jail and sought no medical attention once released. Thus, it appears that the officers did not use an excessive amount of force in arresting Austin. As a result, the Defendants' motion for summary judgment on Austin's Fourth Amendment claims will be granted.
III. Fifth Amendment Claim
Austin also claims that Defendants deprived him of life, liberty, and property with out due process under the Fifth Amendment. The Fifth Amendment's Due Process Clause, however, only applies to the federal government. See Bartkus v. Illinois, 359 U.S. 121, 124 (1959); Eftekhara v. Illinois Department of Children and Family Services, 661 F. Supp. 522, 526 (N.D. Ill. 1987). In this case, Austin does not allege any actions taken by the federal government. Therefore, the allegation that Austin was deprived of his due process rights under the Fifth Amendment must fail.
IV. Fourteenth Amendment Claim
Finally, Austin alleges that his due process rights under the Fourteenth Amendment were also violated. However, as discussed above, Austin's arrest and search incident thereto were not in violation of the Fourth Amendment. As a result, Austin was not deprived of liberty or property without due process of law since any Fourteenth Amendment claim would derive from his Fourth Amendment rights. 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.