Opinion
Cause No. IP 00-0527-C-M/S
November 17, 2000
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on defendants' Officer Jeff McCorkle ("McCorkle"), Officer Jon Minton ("Minton"), and the City of Greenwood, Indiana ("City of Greenwood") motion for summary judgment on plaintiff Jerry R. Davis' claims under 42 U.S.C. § 1983 and Indiana common law. Minton and McCorkle seek summary judgment on Davis' claim against them in their individual capacities for alleged violations of the First Amendment, while Minton also seeks summary judgment on Davis' individual capacity claim against him for alleged violations of the Fourth Amendment. Finally, the City of Greenwood seeks summary judgment on Davis' state law claims against it for intentional infliction of emotional distress and slander. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS in part and DENIES in part defendants' motion. Defendants' motion to strike is DENIED as moot.
Davis' complaint does not specifically allege a cause of action for slander. Because both parties apparently concede that such a claim exists, however, the Court will consider it.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 1998, Greenwood Police Officer Jeff McCorkle was at the Westside Park in Greenwood, Indiana. McCorkle Aff. ¶¶ 2-3. McCorkle was off duty and was at the park with his wife and son. Id. ¶ 3. McCorkle and his wife observed several males entering and exiting a more wooded area of the park for no apparent reason. Id. ¶ 4. McCorkle's wife commented that there seemed to be an unusual number of vehicles in the parking lot and so few people in view. Id. ¶ 5. McCorkle indicated to his wife that Westside Park had a reputation as being a meeting place for men to engage in homosexual acts. Id. ¶ 6. McCorkle's wife became visibly upset that the couple's young son might see indecent behavior. Id. ¶ 7. Several boys, between the ages of 10 and 13, rode their bikes into the wooded area of the park. Id. McCorkle's wife indicated that she was afraid the boys might stumble across individuals engaged in homosexual acts and urged McCorkle to go do something about it. Id. ¶ 8.
McCorkle was reluctant to take any action, but acceded to his wife's request. Id. ¶ 9. McCorkle entered the woods to ascertain if any illegal activity was taking place. Id. A white male, later identified as Donald Walters, approached McCorkle. Id. ¶ 10. Walters nodded toward McCorkle and motioned for him to follow him to a more heavily wooded area. Id. Once inside the more heavily wooded area, Walters turned and faced McCorkle. Id. ¶ 11. Walters then began rubbing his genitals through his pants and fondled himself until becoming erect. Id. ¶ 11, 15. Once erect, Walters exposed himself to McCorkle. Id. ¶ 15. McCorkle identified himself as a police officer and instructed Walters to exit the location. Id. ¶ 16.
Davis had arrived at the park to wipe up a spill of liquid in his car. Id. at 30-31. After wiping up the spill, Davis decided to walk through the park to enjoy the day. Id. at 32, 34. Davis searched the area to find a trail to walk along the creek. Id. at 35. Having failed to locate such a trail, Davis began walking on a large path back toward the parking lot. Id. at 35-37. Davis stopped to pull burrs from his sock and to check for ticks. Id. at 38-39. Davis noticed two individuals exiting the wooded area next to the wide path. Id. at 39-40. One of the individuals, later identified as McCorkle, ordered Davis to stop. Id. at 40-42. Fearing the two men were going to rob him, Davis did not stop. Id. Davis continued down the wide path at a hurried pace. Id. McCorkle again told Davis to stop and get on the ground. Id. at 43. Davis turned around and saw Walters get on the ground. Id. at 45. Walters told Davis that McCorkle was a police officer. Id. Davis then complied with McCorkle's request to get on the ground. Id. Davis told McCorkle that he had done nothing wrong. Id. at 47. McCorkle stated that Davis was watching Walters and McCorkle. Id. at 48.
McCorkle then got on his cell phone and called dispatch. Id. McCorkle told dispatch that he was at Westside Park and had two in custody. Id. Greenwood Police Officer Jon Minton responded to the call. Minton Aff. ¶ 4. Minton met McCorkle, Walters and Davis halfway between the parking lot and the large clearing. Id. ¶ 5. McCorkle told Minton that Walters had exposed himself to McCorkle. Id. ¶ 9. McCorkle also told Minton that while Walters was rubbing his genitals through his pants, McCorkle saw Davis watching from behind some bushes and weeds. Id. ¶ 10. McCorkle told Minton that he had seen Davis watching what was going on while in some bushes or weeds, parting them with his hands. Id.
McCorkle told Minton that Davis had moved from the bushes to behind a tree. Id. McCorkle also told Minton that Davis had moved to a third location, this time again in either bushes or weeds. Id. McCorkle told Minton that he had seen Davis enter the woods area earlier, along with Walters. Id. ¶ 11. He told Minton that he had arrested Davis for voyeurism. Id. ¶ 6. Walters pled guilty to public indecency under Indiana Code § 35-45-4-1. Def.'s Ex. 4. Both McCorkle and Minton filed arrest reports regarding this incident. McCorkle Aff. ¶ 21, Ex. A; Minton Aff. ¶ 12, Ex. A. Minton filled out the charging information for voyeurism for Davis. Minton Aff. ¶ 13, Ex. B. The form was pre-printed by the Johnson County Prosecutor's Office and given to the Greenwood Police Department for completion. Id. The form gives an officer two separate possibilities for violating the voyeurism statute. Id. These two alternatives are: (1) that the suspect did knowingly or intentionally "peep (any looking of a clandestine, surreptitious, prying or secretive nature)"; or (2) go upon the land of another with the intent to peep into the occupied dwelling of another without the consent of the other person. Id.
Walters' and Davis' arrests, along with others, garnered attention in the local media. Def.'s Exs. 5-10. An article appearing in the Johnson County Daily Journal cited two statements by Greenwood Police Chief Robert Dine. Def.'s Ex. 5. The article states:
Greenwood Police Chief Bob Dine said his department made two other arrests in the park about two years ago.
Such activity can occur anywhere people gather, Dine said. But it seems more prevalent in the park.
Yet, he wondered whether it would cause as much controversy if the activities were between single men and women.
Def.'s Ex. 5. Davis is not mentioned anywhere in that particular article. Id.
An editorial appeared in the Daily Journal on November 17, 1998, entitled "Ridding Parks of Sleaze Should Not Infringe on Rights." Def.'s Ex. 6. The article specifically states:
Police and park officials say that Westside Park has developed an unwanted reputation as a gathering place for men seeking homosexual acts.
Def.'s Ex. 6. Davis agrees that Westside Park has a reputation as a gathering place for men seeking homosexual sex acts, and that he is a homosexual. Davis Dep. at 106-107, 132.
Another article appeared in the Daily Journal on April 6, 1999, entitled "Park Arrest Spurs Threat of Lawsuit." Def.'s Ex. 7. In that article, the reporter cites Davis' tort claim notice against the City of Greenwood. Id. The article references Chief Dine as follows:
Greenwood Police Chief Robert Dine said he had not seen the tort claim notice and did not know the voyeurism charge had been dismissed.
Dine said this was not merely a case of an innocent bystander being in the wrong place at the wrong time.
`That was my question; and I was led to believe there was more going on there than him standing there,' Dine said Monday.
`It didn't solve the problem of public indecency, but it got it out of the park area,' he said.
Def.'s Ex. 7.
An article appeared on April 7, 1999 in the Indianapolis Star, Metro South edition, entitled "Man Will Seek $19,400 Due to Arrest Last Fall." Def.'s Ex. 8. That article reports Davis' filing of his tort claim notice with the City of Greenwood. Id. The only item in that article attributable to Dine is "Greenwood Police Chief Robert Dine said Tuesday he had not read the tort claim and couldn't comment on it." Id. Davis admits that nothing in the article is defamatory. Davis Dep. at 140-141.
An editorial opinion appeared in the Daily Journal on April 5, 2000, entitled "Arrest in Greenwood Park Becomes Legal Fight for City." Def.'s Ex. 9. The article attributes Dine as saying that "Davis did more than simply witness the arrest." Id.
A pair of articles appeared in the Daily Journal on April 5, 2000, entitled "Park Patrol: City Vows to Keep Crime Out of Family Areas" and "Park Patrol: Whiteland Man in Wrong Place at Wrong Time." Def.'s Ex. 10. Dine is quoted as saying "I am not bashing that lifestyle. If it's any type of illegal activity, we don't want it in the park. Period." Id.
The article also states, "Greenwood Police Chief Bob Dine said the recent lawsuit against the City will not deter the police department from policing this City's parks. Because of heavy policing, Dine said, homosexual acts in public parks are on the decline." Id.
The article with the subheading of "City Vows to Keep Crime Out of Family Areas" states:
`We are going after any illegal activity in the parks,' said Greenwood Police Chief Robert Dine. `We don't want it taking place in Greenwood, let alone, where children and families are.
The issue concerning the lawsuit has to do with a police investigation in the summer of 1998 regarding complaints that men were meeting in the park to engage in homosexual acts.
Dine said his department received four or five reports of such activity each month.
In September 1998, police arrested one man for reportedly fondling himself at the park and another for reportedly watching.
The following month, another arrest was made after a 70-year-old man allegedly grabbed an undercover officer's crotch at the park.
Since then, Dine said, complaints about public indecency at the park have decreased.
`We don't have as many complaints as we have in the past,' he said.
Dine said the police department received just four complaints during the summer of 1999 from park-goers.
`We make our presence known, so we can make it uncomfortable for people who do want to engage in those activities,' he said. `Our parks are for families. If you want to take part in indecent acts, you need to do it at home or someplace where kids and families aren't going to be.'
The problem of men soliciting the company of other men in secluded areas of West Park has been around for several years, said Greenwood Mayor Charles Henderson.
Henderson recalls reports of illicit activity in the park in the early 1990s, when he was police chief.
`It's like the oldest profession, in a way,' he said. `I think all we can do as far at the City is concerned is stay very aggressive and discourage it. Right now is a good time to sort of highlight that and let those folks who want to do that sort of thing know we are going to be down there.'
Dine said he would not hesitate to send undercover officers out to the park again if complaints resume.
`We'll do whatever it takes to legally stem this activity' he said. He said it's not a matter of discriminating against anyone's sexual preference.
The frequent patrols of City parks also served to discourage other illegal activity such as marijuana use or vandalism, Dine said.
`I am not bashing that lifestyle,' he said. If it's any type of illegal activity, we don't want it in the park. Period.'
Id.
The article "Whiteland Man in Wrong Place at Wrong Time" reports on the filing of this instant lawsuit. Id. It states:
Dine said the lawsuit is the first time he heard of Davis' allegations of verbal abuse.
`He's never filed a written complaint against the conduct of the officers,' Dine said.
`I just stand behind the officer and his report,' Dine added.
Id.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S. Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
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 which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). 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 nonmoving 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). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "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), cert. denied, 519 U.S. 1115 (1997).
B. LOCAL RULE 56.1 REQUIREMENTS
Local Rule 56.1 imposes additional obligations upon parties moving for and opposing summary judgment. Coleman v. State, 2000 WL 1357791, *8 (S.D. Ind. September 19, 2000). In compliance with the rule, defendants submitted a Statement of Material Facts containing 82 numbered sections with statements of fact and citations to evidence. See L.R. 56.1(f). Davis was then required to file a response in compliance with L.R. 56.1(f) that responded to each of defendants' factual assertions. L.R. 56.1(b)(1). If he wanted to add facts, Davis was required to submit a Statement of Additional Material Facts that warranted denial of summary judgment. L.R. 56.1(b)(1).
The Statement of Additional Material Facts was to have consisted of "numbered sentences and start with the next number after the last numbered sentence in the Statement of Material Facts." L.R. 56.1(f)(1). The local rules also required that — similar to defendants' Statement of Material Facts — the Statement of Additional Material Facts consist of "concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. Each stated material fact shall be substantiated by specific citation to record evidence." L.R. 56.1(f)(2).
These provisions are of significant benefit to the court whose role in ruling on a summary judgment motion "is not to sift through the evidence," Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), and who "often cannot afford to spend the time combing the record to locate the relevant information." Id. at 924. The Seventh Circuit has upheld strict enforcement of the local rules of district courts such as Local Rule 56.1. Id. at 922 (citing cases). The factual statements and citations to evidence in the record serve the purpose of "alert[ing] the court to precisely what factual questions are in dispute and point[ing] the court to the specific evidence in the record that supports a party's position on each of these questions." Waldridge, 24 F.3d at 923. "They are, in short, roadmaps, and without them the court should not have to proceed further, regardless of how readily it might be able to distill the relevant information from the record on its own." Id.
Despite filing a "Notice of Compliance," Davis has completely failed to follow the mandates of Local Rule 56.1. Instead of responding to defendants' Statement of Material Facts, Davis simply submitted a 12-page affidavit with 41 numbered paragraphs. Many of the paragraphs contain numerous statements, including paragraph 15 with its nine separate sentences.
Because Davis has failed to respond — much less object — to defendants' Statement of Material Facts, we will consider defendants' facts, to the extent supported by admissible evidence, to be uncontroverted. See L.R. 56.1(g). Moreover, because Davis' affidavit does not meet the local rule's requirements for a "Statement of Additional Material Facts," we will not consider that affidavit in ruling on defendants' motion.
C. 42 U.S.C. § 1983
Section 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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 in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Doe v. Eagle-Union Community School Corp., 101 F. Supp.2d 707, 717 (S.D. Ind. 2000), citing Livadas v. Bradshaw, 512 U.S. 107, 132. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. Doe, 101 F. Supp.2d at 717, citing West v. Atkins, 487 U.S. 42, 48 (1988). With these standards in mind, the Court will now address defendants' motion.
III. DISCUSSION A. FOURTH AMENDMENT CLAIM AGAINST OFFICER MINTON
Davis asserts a claim against Minton in his individual capacity for allegedly violating his Fourth Amendment rights by arresting him without probable cause. Minton seeks summary judgment on this claim, arguing that he is entitled to qualified immunity. State officials who occupy positions with discretionary or policymaking authority and are acting in their official capacity may have qualified immunity for claims alleging that they violated the constitutional rights of a plaintiff. Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000), citing Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815-816 (1982). These officials "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id.
To evaluate a claim of qualified immunity, the Court engages in a two-step analysis. Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000). The first step is to determine whether the plaintiff's claim states a violation of his constitutional rights. Then, the Court must determine whether those rights were clearly established at the time the violation occurred. Id. If the rights were clearly established, the official may be liable for monetary damages and the suit proceeds to the next stage. If the rights were not clearly established, then the official is immune from suit and the claim is dismissed. Id. The Seventh Circuit has noted that because the doctrine of qualified immunity should not stand as an impediment to the clarification and evolution of a court's articulation of constitutional principles, the Court evaluates the constitutionality of the official's conduct even though, in the end, he may not be held liable for monetary damages flowing from that conduct. Id., citing Wilson v. Layne, 526 U.S. 603, 609 (1999) ("Deciding the constitutional question before addressing the qualified immunity question . . . . promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public").
There is no doubt that the right to be free from arrest without probable cause was clearly established at the time of Davis' arrest. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.), cert. denied, 120 S.Ct. 2688 (2000), citing Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998) (noting that this right was clearly established by at least 1991). The issue then becomes whether Davis has stated a violation of his constitutional right to be free from arrest without probable cause.
The Seventh Circuit has explained that because qualified immunity protects all "but the plainly incompetent or those who knowingly violate the law," Minton would be immune from Davis' claim that he arrested him without probable cause unless "it is obvious that no reasonably competent officer" would have believed that there was probable cause to arrest. Spiegel, 196 F.3d at 723, citing Malley v. Briggs, 475 U.S. 335, 341 (1986). Accordingly, even if Minton had no probable cause to arrest Davis, he would be entitled to qualified immunity if he reasonably but mistakenly concluded that such probable cause existed. Spiegel, 196 F.3d at 723, citing Hunter v. Bryant, 502 U.S. 224, 227 (1991).
Probable cause is itself a `commonsense determination, measured under a reasonableness standard,' Spiegel, 196 F.3d at 723, citing Tangwall v. Stuckey, 135 F.3d 510, 519 (7th Cir. 1998), "and is present if at the time of arrest `the facts and circumstances within [the arresting officer's] knowledge and of which she has reasonably trustworthy information would warrant a prudent person in believing that the suspect had committed or was committing an offense.'" Spiegel, 196 F.3d at 723, citing Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999). "The existence of probable cause turns on the information known to the officers at the moment the arrest is made, not on subsequently-received information." Spiegel, 196 F.3d at 723, citing Hebron v. Touhy, 18 F.3d 421, 423 (7th Cir. 1994). The Court should consider "whether an official acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed several years after the fact." Id.
In this case, Minton responded to McCorkle's call that he had two individuals in custody at Westside Park. Upon arriving at the scene, Minton learned from McCorkle that Walters began rubbing his genitals through his pants and then exposed himself to McCorkle. He also learned that McCorkle saw Davis watching Walters from behind some bushes and weeds; that Davis parted the bushes or weeds with his hands; that Davis had moved from the bushes to behind a tree; and that Davis had moved to a third location in either bushes or weeds. McCorkle then told Minton that he had arrested Davis for voyeurism.
Based upon this information, Minton apparently arrested Davis and filled out the charging information form for voyeurism. The form was pre-printed by the Johnson County Prosecutor's Office and given to the Greenwood Police Department for completion. The form gave Minton two separate possibilities for violating the voyeurism statute: (1) that the suspect did knowingly or intentionally "peep (any looking of a clandestine, surreptitious, prying or secretive nature)"; or (2) go upon the land of another with the intent to peep into the occupied dwelling of another without the consent of the other person.
In determining whether Minton acted reasonably, the Court will consider the criminal violation for which Minton claimed to have had probable cause to arrest Davis. Indiana's voyeurism statute, INDIANA CODE § 35-45-4-5, provides as follows: Sec. 5. (a) A person:
(1) who:
(A) peeps; or
(B) goes upon the land of another with the intent to peep; into an occupied dwelling of another person; or
(2) who peeps into an area where an occupant of the area reasonably can be expected to disrobe, including:
(A) restrooms;
(B) baths;
(C) showers; and
(D) dressing rooms; without the consent of the other person, commits voyeurism, a Class B misdemeanor. However, the offense is a Class D felony if it knowingly or intentionally committed by means of a camera, a video camera, or any other type of recording device.
(b) "Peep" means any looking of a clandestine, surreptitious, prying, or secretive nature.
The Court has found no decision that has interpreted this statute. Minton argues that he construed subsection (1) to mean that anyone that "peeps" has violated the statute. Minton seeks support for his interpretation by referring the Johnson County Prosecutor Office's charging information form, which provides that a violation of the statute occurs where the suspect did knowingly or intentionally "peep (any looking of a clandestine, surreptitious, prying or secretive nature)."
Not surprisingly, Davis interprets the statute differently. According to Davis, the statute implies that he must have interfered with a person's reasonable expectation of privacy. Because he was in a public park, Davis asserts that there could have been no reasonable expectation of privacy and he could not have been "peeping."
Subsection (1) of the voyeurism statute provides that a person commits the crime of voyeurism if he (a) peeps in to an occupied dwelling of another or (b) goes upon the land of another with the intent to peep in to an occupied dwelling of another person. INDIANA CODE § 35-45-4-5 (1). There is no evidence in this case that Davis was looking or attempting to look into an occupied dwelling of another person. Indeed, his alleged actions occurred in a public park. Accordingly, in light of the plain language of the statute, no reasonable police officer could have concluded that he had probable cause to arrest Davis for peeping into an occupied dwelling of another.
Minton apparently interprets the statute to mean that any "peeping" is unlawful, and that the statute does not require the peeping to be into the occupied dwelling of another. Instead, according to Minton, any peeping — whether it occurs in public or private — amounts to voyeurism. Minton claims this interpretation is reasonable because there is no case law stating otherwise and the Johnson County Prosecutor Office's charging information form uses a similar definition. The Court concludes that such an interpretation, which would subject anyone to criminal prosecution that somehow looked at something in a clandestine, surreptitious, prying, or secretive nature, is unreasonable. As the Seventh Circuit has explained, police officers cannot obtain immunity based upon unreasonable interpretations of the law:
No doubt there are uncertainties lurking in the impersonation statute, as there are in every statute. But the police cannot obtain immunity for liability for false arrests by arresting people on preposterous charges and then pointing to the absence of any judicial decision that declares the statutory interpretation underlying the charges to be preposterous. Their interpretation must be reasonable in light of existing law. Scott v. Glumac, 3 F.3d 163, 166 (7th Cir. 1993); Coleman v. Frantz, 754 F.2d 719, 728-29 (7th Cir. 1985); Coffman v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989). The fact that a statute has not been construed does not mean that there is no law, that anything goes. There is always the statute itself, and if its meaning is clear without benefit of judicial interpretation the officials enforcing it cannot reasonably go against it. Andreu v. Sapp, 919 F.2d 637, 643 n. ¶ (11th Cir. 1990). The clearest violations may never generate an appeal, just because there is no nonfrivolous ground for an appeal; and without an appeal there will be no authoritative judicial interpretation of the statute. It would be a considerable paradox to say that public officers have a license to commit statutory violations so outlandish that they have never been the subject of a published appellate decision. . . . In short, when a proposed statutory interpretation is arguable, the plaintiff cannot rebut the defense of immunity without showing that the argument has been authoritatively resolved, but when the proposed interpretation is cockeyed, no such showing is required.
Northen v. City of Chicago, 126 F.3d 1024, 1026 (7th Cir. 1997). cert. denied, 523 U.S. 1023 (1998). The Court concludes that Minton's interpretation of the Indiana voyeurism statute was unreasonable. Because no reasonable police officer could have concluded that probable cause existed to arrest Davis, Minton is not entitled to qualified immunity.
Minton also argues that because Davis knew that Westside Park had a reputation as a meeting place for men seeking sexual encounters, he had probable cause to arrest Davis under Subsection (2) of the statute. That section provides that a person commits voyeurism if he peeps into an area where the occupant of the area reasonably can be expected to disrobe (such as restrooms, baths, showers, and dressing rooms) without the consent of the other person. Minton's argument fails for two separate reasons. First, there is no evidence that Walters, the person that was fondling himself, did not consent to Davis' watching him from the bushes. Second, the Court does not agree that the mere fact that Davis acknowledged Westside Park's reputation as a site for homosexual activity automatically converts its woods to areas where individuals can reasonably be expected to disrobe.
The fallacy of Minton's argument is readily apparent by the following hypothetical: Suppose Minton observed a parent playing hide-and-seek with his or her children in Westside Park's woods. Suppose further that during the game Minton sees the parent, hiding behind a tree or in some bushes, peeking his or her head out to see the children. This looking of a secretive or clandestine nature would likely meet the statutory definition of "peep." According to Minton, due to its nature for homosexual activity, Westside Park's woods is an area where people would reasonably be expected to disrobe. As a result, once Minton saw the parent "peeping" at his or her children, he could arrest the parent for voyeurism. The Court cannot sanction such an absurd result.
"Clandestine" means "secret, hidden, concealed . . . ." BLACK'S LAW DICTIONARY 248 (6th ed. 1990).
In sum, a reasonable police officer could not have concluded that he had probable cause to arrest Davis for voyeurism. As a result, Minton's motion for summary judgment based upon qualified immunity is DENIED.
B. FIRST AMENDMENT CLAIM AGAINST McCORKLE AND MINTON
Davis also asserts a claim against McCorkle and Minton in their individual capacities that they violated his rights under the First Amendment. Unfortunately for Davis, there is simply no record evidence of the nature of the alleged First Amendment violation. The Court can surmise from the parties' briefs that it has something to do with Minton and/or McCorkle allegedly instructing Davis to stay out of city parks in the future. In any event, Minton and McCorkle have raised the defense of qualified immunity, arguing that they have not violated any clearly established right. Again, to evaluate a claim of qualified immunity the Court engages in a two-step analysis. First, the Court determines whether Davis' claim states a violation of his constitutional rights. Then, we determine whether those rights were clearly established at the time the violation occurred. Jacobs, 215 F.3d at 766. If the rights were clearly established, Minton and McCorkle may be liable for monetary damages and the suit proceeds to the next stage. If the rights were not clearly established, Minton and McCorkle are immune from suit and the claim is dismissed. Id.
It is Davis' burden to demonstrate that a constitutional right is clearly established. Id. A clearly established right is one where "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. Davis has provided no evidence of any First Amendment right that was violated, let alone one that was clearly established. Without such evidence, McCorkle and Minton are entitled to summary judgment on Davis' § 1983 individual capacity claims against them for alleged violations of the First Amendment. Bayless v. City of Frankfort, 981 F. Supp. 1161 (S.D. Ind. 1997) (granting summary judgment for defendants where plaintiff failed to establish a violation of constitutional rights).
C. STATE LAW CLAIMS AGAINST THE CITY OF GREENWOOD 1. Intentional Infliction of Emotional Distress
The City of Greenwood moves for summary judgment on Davis' claim against it for intentional infliction of emotional distress. The parties dispute whether the City is entitled to immunity under Indiana law and whether the actions of its police officers were sufficiently outrageous to support such a claim. The Court need not address either of these issues, however, because Davis has once again failed to present any evidence in support of such a claim. As discussed, Davis completely failed to comply with L.R. 56.1. As a result, the Court will not consider the "facts" asserted in his affidavit.
That leaves Davis with the allegations in his unverified complaint. While declaring under penalty of perjury that a complaint's allegations are true may convert the complaint into an affidavit for purposes of opposing summary judgment, see Crudup v. Barton, 2000 WL 1644369, *1 (N.D. Ill. October 24, 2000), Davis has not done so here. Davis simply cannot rely upon his unverified complaint allegations to oppose defendants' motion for summary judgment. Rule 56 is clear that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading." Id., citing Fed.R.Civ.P. 56(e).
The only facts in the record at this stage involve those surrounding Davis' arrest. Under Indiana law, where "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another," that person is subject to liability for such emotional distress. Higginbottom v. Keithley, 103 F. Supp.2d 1075, 1089 (S.D. Ind. 1999), citing RESTATEMENT (SECOND) OF TORTS § 46 (1965). "It is the intent to harm one emotionally that constitutes the basis for the tort of an intentional infliction of emotional distress." Id. Moreover, although the primary basis of the tort is the intent requirement, it is not enough for Davis to demonstrate intent alone. Instead, he must show defendants' conduct was "extreme and outrageous" for liability to attach. Conduct will satisfy this requirement:
only where [it] has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'
Van Jelgerhuis v. Mercury Finance Co., 940 F. Supp. 1344, 1369 (S.D. Ind. 1996).
Davis has failed to produce any evidence of such outrageous conduct, or any evidence that either officer intended to inflict emotional distress upon him. Without such evidence, his claim fails as a matter of law. Accordingly, the City of Greenwood is entitled to summary judgment on that claim.
2. Slander
The parties apparently agree that, while not specifically alleged in his complaint, Davis is asserting a claim of slander against the City of Greenwood based upon comments that Chief Dine made in a newspaper article. Indiana law uses an actual malice standard in matters of public or general concern for private individual plaintiffs. Journal-Gazzette Co. v. Bandido's, Inc., 712 N.E.2d 446, 452 (Ind.), cert. denied, 120 S.Ct. 499 (1999); St. John v. Town of Ellettsville, 46 F. Supp.2d 834, 848 (S.D. Ind. 1999) ("In Indiana, even private figures must establish actual malice if the statements in question relate to an issue of public concern."). The question of whether there is sufficient evidence to support a finding of actual malice is a question of law for the Court. Bandido's, 712 N.E.2d. at 456. Actual malice must be shown by clear and convincing evidence, and exists when a defendant publishes a defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. To establish reckless disregard, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication or proof that the false publication was made with a high degree of awareness of their probable falsity." Id.
In his response brief, the only specific comment that Davis claims to be defamatory was Dine's statement that "That was my question; and I was led to believe that there was more going on there than him standing there." In addition, Dine later said, "It didn't solve the problem of public indecency, but it got it out of our parks." It appears that Dine was simply stating the truth — that he had been led to believe that Davis was doing more than just standing there, and that his department's arrests had gotten the public indecency problem out of the park. Because truth is an absolute defense to defamation, Davis' claim fails as a matter of law. Conwell v. Beatty, 667 N.E.2d 768, 774 (Ind.App. 1996) (truthfulness of statement defeats defamation claim as a matter of law).
Even assuming Dine's statements were untrue and defamatory, Davis' claim still fails. The article Davis points to involved a discussion of his tort claim notice against the City of Greenwood, the police department's patrol of city parks, and the circumstances surrounding Davis' arrest. These are subjects that involve matters of public concern. Accordingly, Davis must establish that Dine made his statements with actual malice. Davis, however, has produced no evidence that Dine made the statement with knowledge of its falsity or with reckless disregard as to whether or not it was false. Accordingly, the City is entitled to summary judgment on his slander claim.
IV. CONCLUSION
Davis has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on his § 1983 claims for violations of the First Amendment against McCorkle and Minton and his state law claims against the City of Greenwood. Accordingly, the Court GRANTS the defendants' motion for summary judgment on those claims. The Court has concluded, however, that Minton is not entitled to qualified immunity on Davis' § 1983 individual capacity claim against him for alleged violations of the Fourth Amendment. Accordingly, the Court DENIES defendants' motion for summary judgment on that claim. Defendants' motion to strike is DENIED as moot.
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff Jerry R. Davis filed this lawsuit alleging various constitutional and common law violations against the City of Greenwood, Greenwood Police Chief Robert Dine ("Dine"), Greenwood Police Officers Jeff McCorkle ("McCorkle") and Jon Minton ("Minton"), Johnson County, and Johnson County Deputy Prosecutor Andrew Roesener ("Roesener"). On May 8, 2000 defendants filed a motion for judgment on the pleadings with respect to some of those claims under Fed.R.Civ.P. 12(c). On May 11, 2000, this Court entered an order directing further proceedings. Specifically, the Court ordered plaintiff to "attend the pretrial conference prepared to either withdraw his claims against Robert Dine, Johnson County, and Andrew Roesener in his official capacity or identify a plausible legal theory supporting his claim against each of these defendants. In addition, the parties should anticipate (and should agree, if possible) that the claims against defendants Minton and McCorkle in their official capacities will be dismissed as unnecessary and duplicative of the claim against the City of Greenwood, Indiana." Court's May 11, 2000 Entry Directing Further Proceedings. Davis attended the pretrial conference, but apparently did not agree to dismiss any defendants. To date, he has not responded to or otherwise opposed defendants' motion for judgment on the pleadings. After considering defendants' arguments, the Court GRANTS their Rule 12(c) motion for judgment on the pleadings.I. FACTUAL BACKGROUND
On September 30, 1998, Davis was walking in West Park, a city park in Greenwood, Indiana. Complaint ¶ 8. As he was walking down a path, he noticed two men approaching him, one of whom was later identified as Officer McCorkle. Id. ¶ 9. McCorkle told Davis to stop and get down on the ground. Id. When Davis did so, McCorkle took him into custody. Id.
Davis' complaint incorrectly refers to defendant McCorkle as "McConkle." The Court will refer to him by his correct name, McCorkle.
Davis was handcuffed, paraded around the parking lot, and detained in view of other park patrons. Id. ¶ 10. Davis was arrested and charged with voyeurism, and Greenwood Police Officers searched his vehicle. Id. ¶ 11, 17. While he was detained, Officers McCorkle and Minton interrogated him and hurled insults, accusations, and demeaning remarks at him in front of other citizens gathered in the parking lot. Id. ¶ 12. McCorkle and Minton received information from another officer that Davis' acts did not amount to voyeurism. Id. ¶ 13.
McCorkle and Minton were assisted by another person that Davis believed to be an out-of-uniform Greenwood Police Officer, who interrogated Davis and attempted to coerce him into confessing his crime before he had been explained his rights. Id. ¶ 14. After the unidentified officer could not coerce the confession, he told the other officers to take Davis to jail and told Davis "If we can't get this to stick (voyeurism charge), we'll find something else to charge you with, and who do you think they'll believe, you or us?" Id. ¶ 15. The police officers also told Davis that he should never be seen in any Greenwood parks in the future. Id. ¶ 16.
Davis was confined at the Greenwood Jail and then later transferred, by a van at speeds as high as 80 miles per hour which resulted in injury to him, to the Johnson County jail. Id. ¶ 18. Davis had to obtain a bond to secure his release, and had to pay money to retrieve his impounded vehicle. Id. ¶ 19. Local newspapers noted Davis' arrest, the offense charged, and the bond amount. Id. ¶ 20.
In October 1998 the Johnson County Daily Journal ran an editorial that discussed Davis' arrest, opining that the arrest was unlawful and that the Johnson County Prosecutor should conduct a refresher course for all local police departments on how to avoid legal pitfalls when they investigate public indecency. Id. ¶ 21.
Davis obtained an attorney to defend him, and that attorney participated in pretrial hearings with Roesener in October and November 1998 during which he attempted to persuade Roesener to drop the charge against Davis. Id. ¶ 22. After Davis' attorney filed a motion to dismiss the charge, Roesener dismissed it. Id. ¶¶ 23-25.
On March 26, 1999, Davis filed a tort claims notice which was denied. Id. ¶ 26. The filing of the claim was reported in the newspapers as was the response of Chief Dine, which was derogatory, slanderous, and embarrassing to Davis. Id. ¶ 27.
II. STANDARDS
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Rule 12(c) permits a party to move for judgment after the parties have filed the complaint and answer. The pleadings include the complaint, the answer, and any written instruments attached as exhibits. See Northern Indiana Gun Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). In considering a motion for judgment on the pleadings, courts employ the same standard as that applied to a motion to dismiss under Rule 12(b). Id. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Accordingly, we will grant a Rule 12(c) motion only if "it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. We view the facts in the complaint in the light most favorable to the non-moving party." Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993). With these standards in mind, the Court will now address defendants' motion.
III. DISCUSSION A. CLAIMS AGAINST JOHNSON COUNTY
It is not clear why Davis named Johnson County as a defendant to this lawsuit. If he named it as part of his § 1983 claim, the County must be dismissed. In Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91 (1978), the Supreme Court held that a municipality cannot be held liable under § 1983 founded on a theory of vicarious liability or respondeat superior. Briggs v. City of Greenwood, 2000 WL 1476614, *2 (S.D. Ind. September 21, 2000). In fact, a municipality cannot not be held liable under § 1983 unless a municipal policy or custom caused the alleged deprivation of constitutional rights. Id. A plaintiff may allege a municipal policy or custom in three ways: by claiming an express policy caused the constitutional deprivation, by claiming a widespread practice is so permanent and well settled as to have the force of law caused the deprivation, or by claiming a person with final policymaking authority caused the deprivation. Id. Allegations of isolated incidents by non-policymakers do not suffice to assert a municipal policy or custom. Id.
Davis has not alleged sufficient facts to hold Johnson County liable under § 1983. Indeed, aside from the fact that it is difficult to determine exactly what the County allegedly did that violated Davis' rights, there are no allegations that its actions were done pursuant to a municipal policy or custom. Accordingly, to the extent Davis asserts a claim against Johnson County under § 1983, that claim is DISMISSED. Johnson County also raises the possibility that Davis may be trying to sue it under Indiana law. If he is, his claims must be dismissed. Nowhere in his complaint does Davis explain why Johnson County should be a party to this action. In fact, the only reference to the County is the fact that Davis was housed at the Johnson County Jail. With no allegations to support a claim against the County, Davis' state law claims against it are DISMISSED.
B. CLAIMS AGAINST DEPUTY PROSECUTOR ANDREW ROESENER
The only apparent claim against Roesener is that he did not dismiss the voyeurism charge against Davis until after his attorney filed a motion to dismiss, and that such action somehow violated Davis' constitutional rights. State prosecutors have absolute immunity for the initiation and pursuit of a criminal prosecution, including presenting the State's case at trial or any other conduct "intimately associated with the judicial phase of the criminal process." Sims v. Kernan, 29 F. Supp.2d 952, 959 (N.D. Ind. 1998), citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976). "In initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." Imbler, 424 U.S. at 431; see also Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). This immunity applies even where the prosecutor acts "maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence." Kernan, 29 F. Supp.2d at 959, citing Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986). The only allegations against Roesener involve his prosecuting Davis on the voyeurism charge. Because Roesener is entitled to immunity for those actions, Davis' claims against him must be DISMISSED.
C. FEDERAL CLAIMS AGAINST THE CITY OF GREENWOOD AND DINE, McCORKLE, AND MINTON IN THEIR OFFICIAL CAPACITIES
In addition to the City of Greenwood, Davis has named Dine, McCorkle, and Minton in their official capacities. A suit against these individuals in their official capacities is the same as a suit against the City of Greenwood. See Luck v. Rovenstine, 168 F.3d 323, 325 (7th Cir. 1999) (official capacity suit seeking damages is simply an action against the municipality for which the officer is an agent). Accordingly, the official capacity claims against Dine, McCorkle, and Minton are superfluous and are therefore DISMISSED.
Like Johnson County, the City of Greenwood can only be liable under § 1983 if a municipal policy or custom caused the alleged deprivation of Davis' constitutional rights. Id. Davis has not alleged a municipal policy or custom that caused the alleged deprivation of his rights. His allegations of the isolated conduct of McCorkle and Minton are insufficient to allege a policy or custom of the City of Greenwood. See Briggs, 2000 WL 1476614 at *2 (allegations of isolated incidents by non-policymakers do no suffice to assert a municipal policy or custom), citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 821-24 (1985) (holding court committed reversible error in instructing jury that it could infer municipal policy from a single excessive use of force); Gustafson v. Jones, 117 F.3d 1015, 1022 (7th Cir. 1997) (holding officers' allegations of two incidents failed to show the city had a custom or policy that caused their injuries). Accordingly, Davis' claims against the City of Greenwood under § 1983 must be DISMISSED.
D. FEDERAL CLAIMS AGAINST DINE IN HIS INDIVIDUAL CAPACITY
With respect to the claims against Dine in his individual capacity, there are no allegations of personal involvement on the part of Dine other than his alleged comments in the newspapers. Individual liability under § 1983 must be premised upon personal responsibility. Malone v. Speybroeck, 1997 WL 284823, *3 (N.D. Ind. April 14, 1997), citing Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). "An individual cannot be held liable in a § 1983 action unless he caused or participated in [the] alleged constitutional deprivation." Speybroeck, 1997 WL 284823 at *3. Moreover, an official cannot be held liable under § 1983 merely because his subordinates violated a plaintiff's constitutional rights. Id. An official meets the personal involvement requirement when he acts or fails to act with a deliberate or reckless disregard of a plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent. Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 1994), quoting Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985).
There are no allegations that would support a reasonable inference that Dine caused or participated in any constitutional deprivation. Nor is there any evidence that he acted or failed to act with reckless disregard of Davis' constitutional rights, or that any of the conduct upon which Davis bases his claims occurred at Dine's direction or with his knowledge and consent. Therefore, Davis' claims against Dine in his individual capacity under § 1983 are DISMISSED.
E. STATE LAW CLAIMS AGAINST DINE, McCORKLE, AND MINTON
Defendants Dine, McCorkle, and Minton claim that they are not the proper parties to Davis' state law claims by virtue of INDIANA CODE § 34-13-3-5(a), which provides in relevant part that:
A lawsuit alleging that an employee acted within the scope of the employee's employment must be exclusive to the complaint and bars an action by the claimant against the employee personally. However, if the governmental entity answers that the employee acted outside the scope of the employee's employment, the plaintiff may amend the complaint and sue the employee personally.
Accordingly, if Davis' complaint alleges that Dine, McCorkle, and Minton acted during the scope of their employment with the Greenwood Police Department, the only proper party to state law claims arising from that conduct is the governmental entity itself. In Indiana, an employee's tortious conduct may fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business. City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind.App.), transfer denied, 726 N.E.2d 315 (1999). In addition, even "the commission of an intentional criminal act may be considered as being within the scope of employment if the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope . . . . even willful or wanton behavior does not necessarily remove one from the scope of his employment." Id. Davis' allegations against Dine, McCorkle, and Minton involve acts by them that revolved around their arrest of him and subsequent communications with the media regarding that arrest, actions which are closely associated with their duties as police officers. Because those acts were within the scope of their employment, they are not the proper parties to Davis' state law claims. As a result, the Court DISMISSES Davis' state law claims against Dine, McCorkle, and Minton.
IV. CONCLUSION
The Court has considered defendants' motion for judgment on the pleadings and concluded that it should be GRANTED. Accordingly, the Court DISMISSES the following claims: all claims against defendant Johnson County; all claims against defendant Roesener; all § 1983 claims against the defendants City of Greenwood and Dine, McCorkle, and Minton in their official capacities; all § 1983 claims against Dine in his individual capacity; and all state law claims against Dine, McCorkle, and Minton.