Opinion
CAUSE NO. NA01-0222-C-H/K
February 10, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Willie Campbell was arrested after he was accused of firing a gun at an unruly patron outside the bar that Campbell owned. Criminal charges were eventually dismissed. Campbell then filed this action against several local governments and agencies and law enforcement officers. At this point in the case, the remaining claims are those against the Town of Austin, Indiana; the Austin Police Department; Austin Police Chief Marvin Richey; and Austin Police Officers Ronnie Bowman and Shannon Richie. With the benefit of hindsight, all parties now agree that the unruly patron, who was bleeding from the head when police arrived, had not actually suffered a gunshot wound. At the core of Campbell's claims is his belief that the police had no business arresting him. Pursuant to 42 U.S.C. § 1983, Campbell asserts claims under the First and Fourth Amendments, as well as state law claims for defamation, false arrest, negligence, gross negligence, "prima facie tort," "conspiracy tort," assault and battery, malicious prosecution, and abuse of process.
The remaining defendants have moved for summary judgment on all remaining claims. After ample opportunity for discovery, the undisputed facts show that the police had probable cause to arrest Campbell, and Campbell's claims fail as a matter of law for a variety of reasons explained below. Defendants are entitled to summary judgment on all remaining claims.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving parties entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving parties must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmoving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-moving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita, 475 U.S. at 586-87; Logan v. Caterpillar, Inc., 246 F.3d 912, 923 (7th Cir. 2001). Irrelevant or unnecessary factual disputes do not defeat summary judgment. Clifton, 969 F.2d at 281. In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing party, giving Campbell the benefit of all reasonable inferences from the evidence. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
Once a party has made a properly supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the non-moving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996). In deciding a motion for summary judgment, the court may not weigh conflicting evidence and choose from among conflicting reasonable inferences from the evidence. However, when a party has shown that it is entitled to summary judgment, it would be a "gratuitous cruelty" to put the parties and others through the stress of a trial that could have only one outcome. See Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Undisputed Facts
In light of the standard for summary judgment, the following facts are undisputed for purposes of the motion. Plaintiff Willie Campbell owns the City Limits Bar in the town of Austin, Indiana. Late on the night of April 8, 2000, Austin police officers Anthony White and Ronnie Bowman were dispatched to the City Limits Bar on a report of shots fired. Bowman Aff. ¶¶ 1 and 5.
When the police officers arrived at the bar, Scott County Sheriff's Deputies had detained Melvin Ross and Ann Leonard. Id., ¶ 5. Bowman observed that Ross was bleeding from the right side of his head. Id.
Bowman approached Campbell and asked who had fired the shots. Campbell responded that he had. Id., ¶ 6; Bowman Dep. at 5. Campbell then gave Bowman his account of the events that led to the gunshot. Campbell said that he had asked Ross to leave the bar and that as Ross was leaving, he made threatening remarks toward Campbell. Campbell told Bowman that he and Ross then began to fight in the parking lot of the bar, and that the gun in Campbell's hand went off. Bowman Aff. ¶ 6.
Bowman then spoke with Ross, who seemed intoxicated. Bowman Dep. at 12. Ross told Bowman that he and Ann Leonard were walking to their car when Campbell emerged from the bar wielding a gun. Bowman Aff. ¶ 7. Ross told Bowman that he charged at Campbell and the fight ensued. Id. While on the scene, Bowman also overheard Leonard yelling at Campbell: "Why did you shoot him?" Id., ¶ 8. Ross never told Bowman that Campbell had shot him.
Campbell told Bowman that the gun was behind the bar. Bowman retrieved the weapon and noticed that there was an empty casing that had been cycled around the cylinder. Campbell informed Bowman that it was his weapon. Id., ¶ 10.
Bowman also learned on the scene that emergency medical technicians decided not to transport Ross to the hospital, and that they could not determine whether the laceration on Ross's head was caused by a gunshot. Bowman Dep. at 16-17.
Bowman then spoke with a deputy prosecutor on the telephone. Based on Bowman's account of the facts, the prosecutor told Bowman that there was sufficient probable cause to arrest Campbell for battery with a deadly weapon or criminal recklessness. Bowman then arrested Campbell for battery with a deadly weapon. Bowman Dep. at 5. Bowman read Campbell his rights and attempted to glean more information about the incident from Campbell. Campbell's only response was: "All I have to say is thank you for responding to my call and that I did nothing wrong." Bowman Aff. ¶ 14; Bowman Dep. at 19.
Officer Shannon Richie was a reserve officer with the Austin Police Department. Richie Dep. at 8. She lived next door to the City Limits Bar. Id. at 14, 18. She was at home and off duty on the night in question. Id. at 18. Her mother told her that something was going on in the bar parking lot. Id. Richie arrived at the parking lot but did not see Campbell or Bowman. Id. at 23, 31-32. Richie was at the scene for about five minutes. Id. at 31. While she was there, she overheard a portion of a conversation between sheriff's deputies and "a guy with blood running down his head." Id. at 22. During that conversation, Richie heard the bleeding man say, when asked whether he had been shot, that he had fallen. Id. at 23.
Campbell testified that his arrest and the circumstances surrounding his arrest were publicized in the local newspaper and on the television news. Campbell Dep. at 84. He does not know who gave the information to the media. Id. at 84-85.
Campbell has come forward with evidence of the post-arrest investigation of the incident, during which the factual grounds for the charges against him were undermined or contradicted. All criminal charges against Campbell were ultimately dismissed. However, the relevant facts are those known to Bowman at the time he made his decision to arrest Campbell, not those facts disclosed by the later investigation, such as Ross's conflicting accounts of the incident.
Marvin Richey is the Chief of the Austin Metro Police Department. Richey Dep. at 2. Chief Richey was not present at the City Limits Bar on the night in question in this case, nor was he on duty that night. Id. at 12. Other facts are noted below as needed, keeping in mind the summary judgment standard.
Discussion
I. Section 1983 Claims
Campbell brings his federal claims under 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.
To recover under § 1983, Campbell must establish that he was deprived of a right secured by the Constitution or laws of the United States by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The doctrine of respondeat superior does not apply under § 1983. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691 (1978). To hold any individual liable, Campbell must show that the individual was personally responsible for causing a violation of his federal rights. E.g., Jones v. Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). To hold a municipal government liable under § 1983, Campbell must demonstrate that the constitutional deprivation was caused by "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, " or by an unwritten custom or practice so well established as to amount to a government policy. See Monell, 436 U.S. at 690-91. Campbell's core federal claim is that Bowman arrested him without probable cause in violation of the Fourth Amendment. There are several other claims and issues that must be addressed before reaching that one.
A. First Amendment
Campbell alleged in his complaint that the defendants deprived him of his First Amendment rights. Cplt. ¶ 30. In response to defendants' motion for summary judgment, however, he has not tried to support that theory, and the evidence does not even suggest a viable First Amendment claim.
B. Excessive Force
In his complaint, Campbell claims the defendants used "unjustified and excessive force." Cplt. ¶ 30. The claim is properly analyzed under the Fourth Amendment rather than as a substantive due process violation, as Campbell has labeled it. See Graham v. Connor, 490 U.S. 386, 395 (1989). Under any label, there simply is no evidence to support such a claim here. Defendants are entitled to summary judgment on the excessive force claim.
C. Official Capacities, the Town, and the Police Department
Campbell has named the three Austin police officers as defendants in both their official and individual capacities. Under 42 U.S.C. § 1983, official capacity suits represent "only another way of pleading an action against an entity of which an officer is an agent." Monell, 436 U.S. at 690 n. 55. Any official capacity claims are really claims against the government entity — the Town of Austin. Hafer v. Melo, 502 U.S. 21, 25 (1991). For the purposes of the summary judgment motion, the official capacity claims against the officers are redundant in light of the fact that the town is also a defendant. Therefore, the official capacity claims are dismissed as duplicative. Similarly, the Austin Police Department has no legal identity separate from the Town of Austin, so the claims against the police department are also dismissed as duplicative. See, e.g., Jones v. Bowman, 694 F. Supp. 538, 544 (N.D. Ind. 1988).
D. Individual Capacity Claims
Campbell has sued Austin Police Chief Marvin Richey and officers Ronnie Bowman and Shannon Richie in their individual capacities.
Campbell did not explicitly allege individual capacity as far as Officer Shannon Richie is concerned, see Cplt. ¶ 10, but it is clear that he intended to assert an individual capacity claim against her. When a plaintiff fails to specify the capacity in which a defendant is named in a § 1983 suit, the Seventh Circuit has directed courts to look to the substance of the plaintiff's claim, the relief sought, and the course of proceedings to determine the nature of the claim. Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991); Conner v. Reinhard, 847 F.2d 384, 394 n. 8 (7th Cir. 1988). The defense of qualified immunity applies only to individual capacity claims. Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000). Richie has raised the defense, and Campbell has responded to it, indicating that both sides are treating the claim as an individual capacity claim. See Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7th Cir. 2000) (because defendants treated suit as one brought against them in their individual capacities — as demonstrated by assertion of defense of qualified immunity — court would treat it as same).
1. Personal Involvement — Chief Richey and Officer Richie
To avoid summary judgment on a § 1983 claim against an individual, Campbell must come forward with evidence that the defendant personally participated in the alleged constitutional deprivation. Jones v. Chicago, 856 F.2d at 992-93. Campbell has not presented any evidence to show that Chief Richey was even present at the scene the night Campbell was arrested. Nor has he shown that Officer Shannon Richie participated in his arrest. Campbell contends that Richie knew Campbell did not shoot Ross because she overheard Ross say that he had fallen when he was asked whether he had been shot. However, Campbell does not dispute Richie's testimony that she was off duty that night, that she was on the scene for about five minutes, and that she did not even see Campbell or Officer Bowman that night. On this record, even if the court assumed that the arrest of Campbell presented a viable claim, Richie could not be held responsible for it because she had no opportunity to intervene. Because the undisputed facts show that Shannon Richie and Marvin Richey were not personally involved in Campbell's arrest, summary judgment is granted as to the § 1983 claims against them individually.
2. Bowman — Qualified Immunity
Officer Bowman invokes the defense of qualified immunity, which protects an individual defendant from liability under § 1983 unless his conduct violated clearly established constitutional rights of which a reasonable officer in his position would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Gomez v. Toledo, 446 U.S. 635, 640-41 (1980).
A two-part test determines whether a government official is entitled to qualified immunity in a civil suit under § 1983. Saucier v. Katz, 533 U.S. 194, 200-01 (2001); see also McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First a court asks whether the facts alleged demonstrate a constitutional violation when examined in the light most favorable to the plaintiff. Saucier, 533 U.S. at 201. If the facts as alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. Los Angeles v. Heller, 475 U.S. 796 (1986) (holding that if there is no constitutional violation, there can be no liability on the part of the individual officer or the government body); Estate of Phillips v. Milwaukee, 123 F.3d 586, 596-97 (7th Cir. 1997). If the facts alleged would amount to a constitutional violation, the court next examines whether the law was "clearly established" at the relevant time. Saucier, 533 U.S. at 201; Marshall, 284 F.3d at 772. If both questions are answered in the affirmative, the official is not entitled to qualified immunity.
To answer the second "clearly established law" question, the court asks whether a reasonable public official who faces the same factual circumstances that the defendant faced would recognize that his or her actions would violate the Constitution. The question is not a broad question of abstract constitutional doctrine, but specific to the particular circumstances. See Saucier, 533 U.S. at 201; Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Qualified immunity protects a government official even if that official is mistaken about the law that applies to his actions. Forman v. Richmond Police Dep't, 104 F.3d 950, 958 (7th Cir. 1997) (finding that qualified immunity gives "ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law").
To assert a violation of his Fourth Amendment rights, Campbell must show that Officer Bowman did not have probable cause for arresting him. To avoid summary judgment on the qualified immunity defense, Campbell must show that a reasonable officer would have understood that he was violating the law by arresting Campbell without probable cause. Kelly v. Myler, 149 F.3d 641, 646 (7th Cir. 1998); Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993).
The undisputed facts show that Officer Bowman had probable cause sufficient to support his arrest of Campbell based on the available information at the time, even though later investigation undermined the strength of any charges against Campbell. When Bowman arrested Campbell, the undisputed facts show that he was aware of the following circumstances: (1) Bowman had been dispatched to the City Limits Bar for gun shots fired; (2) Campbell admitted to Bowman that he had a gun during the fight with Ross and that the gun went off; (3) Bowman observed that Ross was bleeding from the head; (4) Bowman overheard Ross's girlfriend, a witness to the encounter, vehemently accusing Campbell of shooting Ross; (5) Bowman examined Campbell's gun and determined that it had an empty casing that had been cycled around the cylinder; (6) the prosecutor told Bowman that probable cause existed to arrest Campbell on a charge of either battery with a deadly weapon or criminal recklessness. (Regarding the sixth point, Campbell has suggested that Bowman did not give the prosecutor a complete picture of the facts. Campbell has not supported that point with evidence and thus has not raised a genuine issue of fact.)
With the benefit of hindsight, all parties now know that Ross was not struck by a bullet. The benefit of hindsight does not affect whether Bowman had probable cause to arrest Campbell. Under the Fourth Amendment, a police officer may arrest a person if the officer reasonably believes in light of the circumstances known to him at the time that the suspect had committed or was committing an offense. Hunter v. Bryant, 502 U.S. 224, 228 (1991). If the facts then known support such a reasonable belief, then probable cause existed even if some of those facts later turned out to be incorrect. Kelly, 149 F.3d at 646. The Constitution did not require Bowman to conduct a more thorough investigation on the spot. That could be left for later.
The undisputed facts were sufficient to support probable cause for Campbell's arrest for battery with a deadly weapon, as well as for the closely related crimes of battery, assault, criminal recklessness, and/or disorderly conduct. See Kelly, 149 F.3d at 647-48. The officer need not get the charge for the arrest exactly right. Moreover, even if the evidence might allow a finding that Bowman did not have probable cause, Bowman had reason to believe that he had probable cause for Campbell's arrest, and the law did not clearly establish that the arrest was unlawful. See Hunter, 502 U.S. at 228 (recognizing qualified immunity defense where arresting officers reasonably believed they had probable cause to make the arrest).
E. Federal Claims Against the Town
The remaining § 1983 claim against the Town of Austin requires proof both: (a) that Campbell's constitutional rights were actually violated, and (b) that the alleged constitutional violations were caused by an official policy or custom of the local government entity. See Heller, 475 U.S. at 799 (no municipal liability if no violation is found); Monell, 436 U.S. at 694 (requiring proof that official policy or custom caused violation); Harris v. Marion, 79 F.3d 56, 58 (7th Cir. 1996). Campbell fails as a matter of law on both elements.
First, as discussed above, the undisputed facts show that Officer Bowman had probable cause to arrest Campbell. That finding bars any prospect of liability against the town.
Second, even if there were evidence of an actual constitutional violation, Campbell "must point to either an express policy which caused the injury, a widespread practice that is so well-settled as to amount to a policy, or that the [top-ranking entity authority] had the final policymaking authority for the decisions regarding the . . . treatment [plaintiff] received." Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002) (affirming grant of summary judgment on § 1983 claim because plaintiff was unable to point to any custom or policy that caused his injury), citing Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 981 (7th Cir. 2000). A plaintiff must demonstrate that a "moving force" behind the constitutional violation was a municipality's policy. Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997); see also Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999), citing Monell, 436 U.S. at 690.
Campbell generally alleged in his complaint "institutionalized practices" of the Town of Austin of
(a) failure to properly discipline, restrict, and control employees . . . known to be irresponsible in their dealings with citizens of the community;
(b) failure to take adequate precautions in the hiring, promotion, and retention of police personnel;
(c) failure to forward evidence of criminal acts committed by police personnel to the office of the Scott County Prosecutor; and,
(d) failure to establish a departmental system to deal with complaints of police misconduct.
Cplt. ¶ 27. Campbell has failed to provide any evidentiary support for these allegations. Unlike the plaintiffs in Monell, Campbell has no evidence that his alleged claims are based on explicit policies adopted by the town that authorized the actions being challenged as unconstitutional. See 436 U.S. at 660-61. Nor has Campbell come forward with evidence of a widespread, unwritten custom or practice that was endorsed by the town. Summary judgment is therefore granted as to the § 1983 claim against the Town of Austin.
II. State Law Claims
Campbell has alleged a number of state law claims over which this court has supplemental jurisdiction. Because the necessary outcome on those claims is clear, the court will exercise that supplemental jurisdiction to resolve those claims now rather than send the case back to the state courts where the outcome would be inevitable. See, e.g., Van Harken v. Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997).
A. Individual Defendants
Defendants have argued, and Campbell has not refuted, that all of the state law claims against the individual officers are barred pursuant to Indiana Code § 34-13-3-5, which prohibits claims against individual government employees where those employees are acting within the scope of their employment. Section 34-13-3-5(c) specifically requires that:
A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
Campbell has not come forward with evidence that would support a theory that any of the defendant officers were acting outside the scope of their employment in anything they did relevant to this case. Rather, the nature of the claims — Campbell's arrest — is at the core of the individual defendants' employment. See, e.g., Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.App. 1996) (holding that county employee's tort claim of wrongful discharge was based on acts within defendant county official's scope of employment). There is also no evidence that any of individual defendants acted willfully, wantonly, or maliciously, let alone criminally or for his or her personal benefit. Thus, Chief Richey and Officers Bowman and Richie cannot be sued under Indiana law in their individual capacities, and summary judgment is granted on those state law claims.
B. Defamation
Campbell has alleged a claim for defamation. He has not come forward with evidence to support that claim. He has no evidence that any of the named defendants provided information to the media, nor does he provide evidence of actual malice by the defendants. See Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 452 (Ind. 1999) (adopting the actual malice standard for matters of general or public concern, regardless of whether the allegedly defamed plaintiff was a public or private individual). The town and its police department are entitled to summary judgment on the defamation claim.
The town and its police department also contend that they are immune from liability for defamation under Indiana law. They cloak themselves, again without rebuttal from the plaintiff, with discretionary function immunity and law enforcement immunity. See Ind. Code § 34-13-3-3(7) 85(8). The discretionary function immunity protects comments made by officers to news media. Law enforcement immunity also protects officers from defamation claims. Foster v. Pearcy, 387 N.E.2d 446, 537 (Ind. 1979) (applying immunity to statements that prosecutor made to the news media as a discretionary function protected under the Indiana Tort Claims Act); Jacobs v. Columbus, 454 N.E.2d 1253, 1262-64 (Ind.App. 1983) (holding defamation claims against police officers and prosecutors barred by law enforcement immunity). The court agrees that these two types of immunity apply to the defendants in this case.
C. False Arrest
To prove that he was falsely arrested under Indiana law, Campbell must show that the arresting officer acted without "good faith" in making the arrest, a less stringent standard for police conduct than the federal probable cause requirement. Garrett v. Bloomington, 478 N.E.2d 89, 94 (Ind.App. 1985). The burden rests with Campbell to prove that there was no good faith on the part of the arresting officer. Id. He has not met that burden.
D. Other State Law Claims
Campbell's complaint alleges other state law claims, including gross negligence, negligence, prima facie tort, conspiracy tort, defamation, assault and battery, malicious prosecution, and abuse of process. Indiana law does not recognize a cause of action under a theory of prima facie tort. Soltes v. School City of East Chicago, 344 N.E.2d 865, 867 n. 2 (Ind.App. 1976). Further, defendants point out, with no rebuttal from plaintiff, that they did not receive proper notice pursuant to the notice provisions of the Indiana Tort Claims Act of any state law claims other than defamation and wrongful arrest. The court agrees and grants summary judgment as to all remaining state law claims.
Conclusion
For the foregoing reasons, the undisputed facts show that the remaining defendants are entitled to summary judgment on all claims against them. This decision resolves the last of the pending claims, so the court will enter final judgment for defendants at this time.
So ordered.