Opinion
No. 2:03-cv-0283-JDT-WGH.
January 6, 2005
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 31)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Keisha Renae Carter Johnson was murdered by Jeffrey K. Johnson, following his release on his own recognizance from the Vigo County Jail. Plaintiffs, Ronald L. Grigsby, Jr., and Karen Elaine Grigsby, as co-administrators of the Estate of Keisha Johnson, and Ja'Dyn Johnson, a minor by her guardian and next friend, Karen Grigsby, commenced this action on October 3, 2003. They bring federal civil rights claims, a wrongful death claim and claims for battery and aggravated battery. The remaining Defendants, except for Defendant Johnson, move for summary judgment. The court rules as follows.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 2001, Keisha Renae Carter Johnson, Decedent, filed in the Vigo Superior Court, a Petition for Dissolution of Marriage from Defendant Jeffrey K. Johnson. Also on that date, Decedent filed in the Vigo Superior Court, Division 4, a Petition for a Temporary Protective Order and for a Hearing for a Permanent Protective Order against Johnson. In connection with the Petition for a Temporary Protective Order, Decedent filed an affidavit in which she swore that Johnson had caused her bodily injury by means of choking her and throwing her to the ground. Her affidavit also indicated that he had inflicted physical harm upon her in the past and that she believed, if given the opportunity, he would succeed in hurting her in the future.
All dates are in 2001 unless otherwise noted.
On October 1, Johnson was arrested for Domestic Battery and Possession of Marijuana and charges of Domestic Battery, Possession of Marijuana and Criminal Confinement were filed against him in the criminal case of State of Indiana v. Jeffrey K. Johnson, Cause Number 84D04-0110-DF-2449 in the Vigo Superior Court, Division 4. Also on that date, Judge R. Jerome Kearns, Judge of the Vigo Superior Court, entered a No Contact Order, ordering that Defendant Johnson have no contact with Keisha Johnson. The judge set bond at $5,000 with 10% cash acceptable, and Johnson bonded out of the Vigo County Jail.
On October 21, Decedent agreed to let Johnson visit with their daughter, Ja'dyn, at Decedent's residence. When Decedent returned to the residence the following morning, an argument ensued, she called the police and Johnson was arrested for knowingly violating the No Contact Order issued October 1. Charges of Invasion of Privacy, a Class B Misdemeanor, were filed against Johnson on October 22 in Vigo Superior Court, Division 4, in the criminal case of State of Indiana v. Jeffrey K. Johnson, Cause Number 84D04-0110-CM-2654. Johnson was arraigned on October 22. Deputy Prosecuting Attorneys Robert E. Roberts and Kristen Szczerbikfor represented the State; Michael T. Ellis was appointed defense attorney. Based upon an agreement between the Prosecutor's Office and Johnson's counsel, Attorney Ellis, Judge Kearns released Johnson on his own recognizance.
Later on October 22, Decedent reported to police that she observed Johnson opening the mailbox at her residence. The next day, October 23, Decedent was murdered by Johnson.
On February 4, 2004, the court granted the West Terre Haute Defendants' Motion for Judgment on the Pleadings. All remaining Defendants, with the exception of Defendant Johnson, who does not appear to have been served, have moved for summary judgment. Plaintiffs oppose the motion.
II. DISCUSSION
In moving for summary judgment, the Defendants contend that they may not be held liable for the decision to release Johnson on his own recognizance as the sole authority and responsibility for that decision rested with Judge Kearns. As a variant of this first contention, Defendants contend that most of them played no role in the decision to release Johnson on his own recognizance. They also contend that Deputy Prosecutor Roberts and Prosecutor Robert L. Wright are protected by prosecutorial immunity. Finally, Defendants raise the defense of qualified immunity and argue that Plaintiffs have failed to state a claim for wrongful death against them.
Summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The facts and all inferences are viewed in the light most favorable to the nonmoving party. See Fanslow v. Chicago Mfg. Ctr., Inc., 384 F.3d 469, 478 (7th Cir. 2004). Not all facts are material; only disputes over facts that might affect the outcome of the suit under the governing law preclude summary judgment. Id.
If the moving party demonstrates the absence of a genuine issue of material fact, the nonmoving party must identify specific facts to show that there is a genuine issue of material fact necessitating trial. See Schuster v. Lucent Techs., Inc., 327 F.3d 569, 578 (7th Cir. 2003); Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 893 (7th Cir. 2001).
The record establishes that Judge Kearns made the decision to release Johnson on his own recognizance. The Defendants are correct that absolute judicial immunity would shield him from liability for damages if he were a defendant in this case, but he is not. Plaintiffs have not refuted the Defendants' claim that Judge Kearns had sole responsibility for the decision to release Johnson. Thus, Plaintiffs concede that none of the Defendants may be held liable under § 1983 for the alleged due process violation arising from the decision to release Johnson on his own recognizance. Summary judgment will be GRANTED the moving Defendants on this claim.
Defendants also are correct that Deputy Prosecutor Roberts is entitled to prosecutorial immunity for his role in the criminal case against Johnson, including for agreeing to allow Johnson to be released on his own recognizance and presenting that agreement to Judge Kearns. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) ("We have not retreated . . . from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity."); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding state prosecutor acting within the scope of his duties in initiating prosecution and presenting a criminal case was absolutely immune from a civil suit for damages under § 1983). Prosecutor Wright likewise would be entitled to absolute immunity for any role he may have played in preparing for the judicial proceedings against Johnson, though Plaintiffs have produced no evidence to suggest that Wright had any involvement in the proceedings.
Furthermore, as regards the other individual moving Defendants, individual liability under § 1983 must be based on personal responsibility for the constitutional deprivation. An individual cannot be held liable for damages under § 1983 unless he or she was personally involved in the alleged constitutional deprivation. See J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003), cert. denied, 124 S. Ct. 1891 (2004); Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). Plaintiffs have presented no evidence to raise a reasonable inference that any of the individual moving Defendants (other than perhaps Deputy Prosecutor Roberts) were personally involved in the decision to release Johnson on his own recognizance. Therefore, summary judgment will be GRANTED these Defendants for lack of evidence of their personal involvement in the alleged constitutional deprivation.
As for the City of Terre Haute (the "City") and Vigo County (the "County"), these entities can be held liable only if a municipal custom or policy caused the alleged constitutional violation. Monell v. Dep't of Social Servs. of N.Y., 436 U.S. 658, 690 (1978); Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004); Palmer, 327 F.3d at 594. Thus, the court understands the Defendants' argument that these entities were not actors with respect to Johnson's release as arguing that these entities have no custom or policy which caused the alleged constitutional deprivation. Defendants' reliance on Woods v. City of Michigan City, 685 F. Supp. 1457 (N.D. Ind. 1988), for the proposition that they cannot be held liable for Judge Kearns' decision to release Johnson confirms that their argument is grounded in Monell. The Monell argument is elucidated further in Defendants' reply brief.
Mere allegations of a policy or practice are insufficient to avoid summary judgment on the Plaintiffs' § 1983 claims against the City and County. Instead, Plaintiffs must come forward with evidence of "an express policy causing the loss, a widespread practice constituting custom or usage that caused the loss, or causation of the loss by a person with final policymaking authority.'" Killinger, 389 F.3d at 771 (quoting Kujawski v. Bd. of Comm'rs, 183 F.3d 734, 737 (7th Cir. 1999)); see also Palmer, 327 F.3d at 594-95. Plaintiffs, however, have offered no such evidence with respect to Johnson's release from the jail. Thus, the City and County should be GRANTED summary judgment on the § 1983 claims as well.
Furthermore, the Defendants have raised the defense of qualified immunity. This defense presents two questions, the first of which is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer to this question is "yes," then the court must ask whether the right was "clearly established." Id. The Supreme Court has instructed the lower courts that "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id.; see also Brousseau v. Haugen, ___ U.S. ___, 125 S. Ct. 596, 598 n. 3 (U.S. Dec. 13, 2004). Thus, by arguing that they are entitled to qualified immunity, Defendants have raised the threshold question of whether the Plaintiffs can establish a constitutional violation. (See Defs.' Br. Supp. at 14) (arguing "[h]ere there was no violation of federal rights, and no action by the remaining defendants").
Plaintiffs respond first that there is a genuine issue regarding whether the City denied Decedent due process when the Terre Haute Police Department and Officer Baker failed to take any but the most cursory steps to enforce the No Contact Order, claiming Decedent had a property interest in the enforcement of that order. (Pls.' Resp. at 12, 16-21.) Notably, Plaintiffs do not claim that the County had a custom or policy of failing to enforce No Contact Orders and do not seek to hold the individual County Defendants liable on this failure to enforce theory. Thus, the court understands them as waiving any similar argument as against the County and individual County Defendants. Plaintiffs' next argue that Defendants have not addressed their § 1983 equal protection claims, which Plaintiffs maintain may be read to include the failure to warn Decedent about Johnson's release. (Pls.' Resp. at 12, 15, 21-23.)
Plaintiffs rely on the state-created danger exception to the general rule of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195-200 (1989), that the due process clause is not violated by the government's failure to protect an individual from private violence. See also Archie v. City of Racine, 847 F.2d 1211, 1220-23 (7th Cir. 1988) (en banc). The DeShaney Court suggested that a duty to protect could arise where the government creates or exacerbates the danger to the victim. DeShaney, 489 U.S. at 201. The Seventh Circuit has recognized the state-created danger exception for § 1983 liability. See, e.g., Hernandez v. City of Goshen, Indiana, 324 F.3d 535, 538 (7th Cir. 2003) (holding allegations that city police department learned that employee threatened bodily harm to other employees and had access to guns yet police failed to protect persons from foreseeable risk of harm failed to state a claim under § 1983). However, it has found § 1983 liability based on the exception in very few cases. For example, in Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), the court upheld a verdict against a police officer who allowed an informant's tape to be released despite his knowledge that the tape's release would result in heightened danger to the informant, who was ultimately killed. Id. at 520. In Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), the court said that "[p]olice officers who remove sober drivers and leave behind drunk passengers with keys may be said to create a danger or at least render others on the road more vulnerable." Id. at 1125.
DeShaney also recognized an affirmative duty of care and protection when the government takes a person into custody and holds him against his will as with prisoners and involuntarily committed mental patients. Id. at 198-200. That exception is clearly inapplicable here.
The first problem with Plaintiffs' reliance on the DeShaney exception is that their response to the summary judgment motion argued for the first time that Defendants' liability may be based on the failure of Officer Baker and the City to enforce Judge Kearn's No Contact Order. Plaintiffs acknowledge that this claim was not pled in the Complaint and ask for leave to amend their pleading. (See Pls.' Br. Opp'n at 20-21.) This claim was not pled in Plaintiffs' contentions in the Case Management Plan either. Rule 16 of the Federal Rules of Civil Procedure provides that a schedule entered pursuant to the rule "shall not be modified except upon a showing of good cause[.]" Fed.R.Civ.P. 16(b). When Plaintiffs filed their summary judgment response on October 29, 2004, the deadlines for amendments to the pleadings — May 1, 2004 — and for discovery related to liability issues — September 2, 2004 — had already passed. Plaintiffs offer no explanation why they did not seek leave to amend their pleadings before expiration of the deadline and have not shown good cause for modifying the scheduling order. Their new claim based on the failure to enforce the No Contact Order and apprehend Johnson is distinct from their original claim grounded on Johnson's release from the jail. Given the lack of a showing of good cause and the distinction between the original claim and the newly asserted claim, the court finds that the motion for leave to amend should be and is DENIED.
Another problem with reliance on the state-created danger exception, is that Officer Baker is not a defendant to this action, so the question of his liability is not before the court. As for the City, Plaintiffs would have to offer evidence of a municipal policy which caused the alleged constitutional violations. They have not come forward with such evidence but argue only that "it appears to be the custom or policy of the Terre Haute Police Department" not to enforce No Contact Orders or apprehend violators of such orders. (Pls.' Opp'n at 19-20.) Evidence that it was not typical for roll-call sergeants to bring the identity of such violators to the attention of subsequent shifts alone is insufficient to raise a genuine issue of fact as to the claimed municipal policy. Moreover, Plaintiffs cite no controlling authority which holds that the failure to enforce a protective order can serve as the basis for liability under DeShaney's state-created danger exception. As noted, the Seventh Circuit has found the exception to exist in very few cases.
Anyway, it does not seem that this case falls within DeShaney's state-created danger exception as recognized by the Seventh Circuit. Officer Baker's and the City's alleged failure to enforce the No Contact Order and failure to apprehend Johnson did not create the danger to Decedent. That danger was created by Johnson. The evidence of the failure to enforce and apprehend places this case in line with those in which the Supreme Court and Seventh Circuit have concluded that the plaintiffs could not prevail on a failure to protect claim under § 1983 such as DeShaney, 489 U.S. at 197 (holding state and local governmental entities and their agents had no constitutional duty to protect the child from his father after receiving reports of child abuse) and Hernandez, 324 F.3d at 538 (holding allegations that city police department learned that employee threatened bodily harm to other employees and had access to guns yet police failed to protect persons from foreseeable risk of harm failed to state a claim under § 1983).
With regard to Plaintiffs' theory of the failure to warn Decedent of Johnson's release, the theory is indistinguishable from DeShaney. There is no suggestion in the evidence that the failure to warn created or exacerbated a danger to Decedent. The danger was created by Johnson. The failure to warn could not have exacerbated any danger since the evidence is that Decedent had seen Johnson at her mailbox the day before she was murdered. Thus, any warning that Johnson had been released would not have given Decedent any information that she did not already have.
As for the equal protection claim based on Decedent's race, gender and status as a victim of domestic violence, though Plaintiffs have alleged that Defendants had a policy or custom of differential treatment, their allegations cannot be fairly read to raise a claim of differential treatment with regard to the failure to warn of a perpetrator's release. The equal protection claim alleged is that Johnson's release was predicated, at least in part, on differential treatment. The allegations of a denial of equal protection is not based on the failure to warn. Furthermore, though Defendants have challenged whether Plaintiffs can establish a constitutional violation, Plaintiffs have not identified any evidence to support their allegation of a municipal custom or policy of differential treatment regarding the provision of warnings of a perpetrator's release.
Finally, Plaintiffs request the court deny summary judgment to the City, the County, Robert Roberts and Robert Johnson, and these Defendants only. In opposing summary judgment Plaintiffs do not address their claims against the following Defendants: the Vigo County Commissioners Bryan, Mason and Anderson, Mayor Anderson; Terre Haute's Chief of Police James Horrell; Vigo County Sheriff William R. Harris; Michael C. Ellis, Chief Probation Officer of the Vigo County Probation Department; Robert Brown Alcohol and Drug Treatment Center and its Director, Bernard J. Burns; Family Service Association and its Director Tara Williams; and Vigo County Community Corrections Advisory Board President William R. Harris. By failing to oppose summary judgment in favor of these other defendants, Plaintiffs have waived their claims against them. Summary judgment should be GRANTED these Defendants for this reason as well.
Given that summary judgment is appropriate on all remaining federal claims, the court, in its discretion, declines to exercise supplemental jurisdiction over the state claims for wrongful death, battery and aggravated battery. 28 U.S.C. § 1367(c)(3) provides that a district court may decline to exercise supplemental jurisdiction when it "has dismissed all claims over which it has original jurisdiction." The Seventh Circuit has said that "[t]he general rule is that when as here the federal claim drops out before trial . . . the federal district court should relinquish jurisdiction over the supplemental claim." Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997).
Following the general rule is appropriate in this case where few federal resources have been expended in this action and the case is relatively young. Relinquishment of jurisdiction is also appropriate since adjudication of the wrongful death claim may require interpretation of undecided questions of state law, see 28 U.S.C. § 1367(c)(1) (authorizing district court to decline to exercise jurisdiction over claims which raise novel or complex state law issues), and the battery and aggravated battery claims are closely intertwined with the wrongful death claim. Therefore, the court DECLINES to exercise jurisdiction over the state law claims which will be DISMISSED WITHOUT PREJUDICE to refiling in state court.
Defendant Jeffrey Johnson did not seek summary judgment, but the only claims asserted against him are supplemental state law claims. It is therefore appropriate for the court to decline to exercise supplemental jurisdiction over the claims against him and dismiss those claims without prejudice to refiling in state court.
III. CONCLUSION
Plaintiffs' request for leave to amend their Complaint is DENIED. Defendants' Motion for Summary Judgment (Dkt. No. 31) will be GRANTED as to the federal claims and the court DECLINES to exercise jurisdiction over the supplemental state law claims which claims will be DISMISSED WITHOUT PREJUDICE to refiling in state court within thirty (30) days of this date. Judgment will be entered accordingly.