Opinion
Cause No. IP01-0926-C-Y/G.
April 15, 2002
Kenneth E Lauter Haskin Lauter Cohen Larue, Indianapolis, IN., for Plaintiff's.
Andrew P Wirick Hume Smith Geddes Green Simmons, Indianapolis, IN., for Defendants.
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants' Motion for Summary Judgment. Plaintiff, a tavern located in Washington, Indiana, alleges that Defendants waged a retaliatory campaign of harassing and unconstitutional police action against the business because one of the bar's owners, Barry Baker, filed a lawsuit against Defendants stemming from his termination as an employee of the City of Washington fire department. Defendants now seek summary judgment. For the reasons set forth in detail below, we GRANT IN PART and DENY IN PART Defendants' Motion for Summary Judgment and we DENY as moot Defendants' Motion to Strike.
Factual Background
Neighbor's Bar, a tavern and corporate entity owned by Barry and Kristyn Baker and located in Washington, Indiana, opened for business in July 1997. D's Statement of Material Facts ¶¶ 5-6; Pl's Resp. and Objections to D's Statement of Material Facts, at unnumbered 2-3; Pl's Addt'l Facts ¶ 27.
Initially, business was good. Crowds on a typical weeknight averaged between fifteen and twenty people, and weekend nights typically drew more than 100 people. Pl's Addt'l Facts ¶¶ 29, 30, 32.
Entertainment at Neighbor's included live musical acts, disc jockeys, and occasionally a male revue, featuring live dancers. K. Baker Depo. at 36-37; B. Baker Depo. at 53-54. The bar did not feature female revues, but did employ a service that provided female performers to serve drinks and dance on stage, in some cases wearing only bikini bottoms and nipple coverings. K. Baker Depo. at 37-38.
During the first two years of operation, Neighbor's was searched by Washington police on only two or three occasions. Pl's Addt'l Facts ¶ 38. However, throughout 1998, police responded to several disturbances and made arrests in the area surrounding the bar. D's Designation and Tender of Evidence, Att. 6.
Defendants Tom Baumert, duly elected mayor of the City of Washington, and David Igel, duly appointed chief of police for the City of Washington, held their respective posts at all times relevant to this dispute. D's Statement of Material Facts ¶¶ 14, 16; Pl's Resp. and Objections to D's Statement of Material Facts ¶¶ 14, 16. On May 5, 1999, Barry Baker filed a lawsuit against the City of Washington, Baumert, and other city officials, alleging constitutional violations based on his termination by the City of Washington fire department. Pl's Addt'l Facts ¶ 33; D's Reply to Pl's Resp. to Statement of Material Facts at 2. Plaintiff alleges that beginning in June or July 1999, police began conducting weekly searches and inspections of the bar. Pl's Addt'l Facts ¶ 39. The Bakers claim that police officers entered the bar on numerous occasions, often requesting identification from customers. Id. ¶ 44. During one particular week in 1999, police allegedly entered the bar eight times. Id. ¶ 60.
Claims against Defendants in their official capacities were dismissed on June 9, 2000, and remaining claims were settled and dismissed with prejudice on August 29, 2000.
Plaintiff also contends that officers conducted warrantless searches of the premises during this time, and that the increased police activity caused customers to leave the bar. Id. ¶¶ 40, 61, 73. During one such search, Barry Baker approached Officer Larry Chester and said, "You and I both know where this is coming from," to which Chester allegedly replied, "Yes, we do." Id. ¶ 62.
On January 11, 1999, the City of Washington passed an ordinance to regulate the activity of "sexually oriented business." Id. ¶ 53. The ordinance states, "It shall be unlawful . . . [f]or any person to operate a sexually oriented business without a valid sexually oriented business license issued by the Building Commissioner pursuant to this ordinance," and "[a] person who operates or causes to be operated a sexually oriented business without a valid business license, or in violation of this ordinance, is subject to a suit for injunction as well as prosecution for ordinance violations. Each day a sexually oriented business so operates is a separate offense or violation and shall carry a civil penalty not to exceed $2,500 per offense or violation." Pl's Ex. 2 at 175, 186. In April 2000, Neighbor's received a letter written by City Attorney Blake Chambers and delivered by Igel stating that city officials were aware "that you are planning some type of a `male review' on Friday night, April 28, 2000," and mentioning the ordinance's prohibition, specifically that businesses found to be in violation of the ordinance "may be subject to a civil penalty of up to $2,500.00 and subject to an injunction against any future violation." Pl's Ex. 13. Baker told Igel that Neighbor's had never hosted such a show and had no present intention of doing so. Igel depo. at 35. Igel allegedly told Baker, "We will be keeping an eye on you." Pl's Addt'l Facts ¶ 56. To the best of Igel's knowledge, Neighbor's did not host any performance in violation of the ordinance. Igel depo. at 35. To Barry Baker's knowledge, no other taverns or businesses in Washington received such a hand-delivered letter regarding enforcement of the ordinance at that time. B. Baker depo at 69.
As a result of the increased police activity at the bar, Neighbor's had difficulty maintaining its customer base and employees. Pl's Addt'l Facts ¶¶ 66, 73. Weekend night crowds diminished to approximately five people by October 2000. Id. ¶ 70. Shortly thereafter, Neighbor's Bar ceased business operations. D's Statement of Material Facts ¶ 19; Pl's Resp. and Objections to D's Statement of Material Facts ¶ 19.
Standard of Review
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Factual disputes are "`genuine' only `if the evidence is such that a reasonable jury could return a verdict for the [non-movant],'" and are "`material' only when they `might affect the outcome of the suit under the governing law.'" Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 610 (7th Cir. 2001), quoting Anderson, 477 U.S. at 248. The nonmovant must establish more than mere doubt as to the material facts, but must "adduce evidence `set[ting] forth specific facts showing that there is a genuine issue for trial.'" Fed.R.Civ.P. 56(e); Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001).
In considering a motion for summary judgment, a court must review the record and draw all reasonable inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Del Raso v. U.S., 244 F.3d 567, 570 (7th Cir. 2001). The court need not search the record for genuine issues of fact 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); Lasiter v. Bilow, 2002 WL 393075, at *2 (S.D.Ind. Feb. 22, 2002). The mere existence of a factual dispute will not bar summary judgment; the facts in dispute must be outcome-determinative. Packman, 267 F.3d at 637. Ultimately, to prevail on a motion for summary judgment, a party must produce admissible evidence supporting its position. Fed.R.Civ.Pro. 56(e).
"If the evidence presented by the nonmovant is . . . [is] merely colorable or [is] not significantly probative, summary judgment would be proper." Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). Conclusory statements unsupported by the record similarly are insufficient to avoid summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001).
Legal Issues
1. Statute of Limitations
As a preliminary matter, Defendants contend that Plaintiff cannot base its claims on actions taken by Defendants prior to June 26, 1999, because Plaintiff filed this lawsuit on June 26, 2001, suggesting that-if Plaintiff in fact waited until the last day of the limitations period to file suit — the period of actionable injury would only extend back two years from that date. Before addressing the logical flaws of this argument, we must describe the legal backdrop. Seventh Circuit precedent indicates that Indiana's two-year personal-injury statute of limitations applies to actions arising under § 1983.
Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001), citing Wilson v. Garcia, 471 U.S. 261, 276 (1985). However, as Plaintiff correctly points out, "the continuing violation doctrine allows a plaintiff to get relief for time-barred acts by linking them with acts within the limitations period." Shanoff v. Illinois Dept. of Human Servs., 258 F.3d 696, 703 (7th Cir. 2001), citing Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The doctrine applies to a variety of situations, including (as is relevant to the instant case) those allegedly injurious acts in which "each day or week brings a fresh wrong." Pitts v. City of Kankakee, Ill., 267 F.3d 592, 595 (7th Cir. 2001), citing Bazemore v. Friday, 478 U.S. 385 (1986).
To determine the expiration of a particular limitations period, we typically start with the date on which the alleged injury accrued and count forward the appropriate amount of time. Here, however, Defendants advocate that we reverse this model and count backward from the date on which the lawsuit was filed to determine the last date of actionable injury. We decline to adopt such a contorted method of calculating the applicable limitations period, for which Defendant has offered no factual or legal support. Plaintiff has alleged injuries arising from policies and practices carried out by Defendants from the May 5, 1999 filing of Barry Baker's lawsuit to the end of Neighbor's business operations in October 2000. Each incident from May 1999 to October 2000 not only comprises the allegedly injurious course of action, it also represents a fresh wrong in its own right, and, therefore, the entire sequence of alleged acts during that time frame constitutes a continuing violation. Therefore, Plaintiff timely filed suit on June 26, 2001 and may properly include claims based on acts that took place after May 5, 1999, but before June 26, 1999. Accordingly, Defendants' Motion for Summary Judgment based on the expiration of the applicable statute of limitations is DENIED.
2. Personal responsibility
Defendants next contend that Plaintiff has failed to establish sufficient personal involvement by Baumert and Igel to implicate them in the alleged constitutional violations. It is well settled that individual liability under § 1983 requires proof of personal responsibility for the alleged violations. Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). "An official satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent." Smith v. Rowe, 761 F.2d 360 (7th Cir. 1985), citing Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982). The necessary causal connection is established if the defendant "set[s] in motion a series of events that the defendant knew or should reasonably have known would cause others to deprive the plaintiff of [his] constitutional rights." Conner v. Reinhard, 847 F.2d 384, 396-97 (7th Cir. 1988). To impose supervisory liability under § 1983 for the acts of subordinates, "a supervisor must be personally involved in that conduct." Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001), citing Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 471 (7th Cir. 1997). "The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference." Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988) (citations omitted).
Other than establishing a basic temporal relationship between Baker's lawsuit and some of the alleged violative acts, Plaintiff has failed to identify evidence from which a jury could reasonably conclude that Baumert or Igel directed, set in motion, or even knew of any alleged campaign of harassment against Neighbor's Bar. Plaintiff offers deposition testimony by Barry and Kristyn Baker, each of whom witnessed certain police visits and, in some instances, heard statements by customers or others regarding the reasons for police appearances at Neighbor's Bar. However, the bulk of this testimony, obviously offered for its truth, relies on facts beyond the Bakers' personal knowledge and hearsay statements that, even if ruled admissible at trial, are not probative of any coordinated harassing activities. The alleged statement by Officer Chester is simply too ambiguous for us to divine its meaning to a reasonable certainty. Moreover, Igel's alleged statement, "We will be keeping an eye on you," seems reasonably related to the purpose of his visit to Neighbors on that occasion — the enforcement of the "sexually oriented business" ordinance. There is nothing in its substance or context to indicate a larger campaign of harassment upon which Plaintiff bases its claims.
Plaintiff also alleges that Baumert "instructed Chief of Police Igel to investigate Neighbor's Bar," and that "[b]eginning in June or July of 1999, the Washington Police Department began conducting weekly searches and inspections of Neighbor's Bar." Pl's Response to D's Statement of Material Facts ¶¶ 34, 39. However, Plaintiff has failed to identify any admissible evidence connecting the frequency of this activity, or suggesting that even one of the alleged searches occurred pursuant to any instruction or even with Defendants' knowledge. Plaintiff further alleges that "[s]ubsequent to [Baker's] filing the lawsuit, on at least two occasions, Mayor Baumert instructed Chief of Police Igel to investigate Neighbor's Bar." Id. ¶ 34. However, the fact of such investigations by itself does not establish deliberate or reckless disregard by Baumert or Igel, or that any action by them caused Plaintiff's alleged injury. Finally, Plaintiff cites Baumert's and Igel's deposition testimony for the proposition that "Neighbors Bar is the only business that Mayor Baumert has instructed Chief Igel to investigate." Id. ¶ 35. However, nothing in the cited pages of Baumert's or Igel's depositions corroborates this allegation. In response to this Motion for Summary Judgment, particularly with regard to the personal involvement of Baumert and Igel, Plaintiff offers up only vague deposition testimony by the Bakers regarding the relative increase in the frequency of searches and speculative conclusions they reached based on ambiguous (potentially inadmissible hearsay) statements. Absent some admissible evidence tending to establish personal involvement by Baumert or Igel in these alleged violations, therefore, we must GRANT Defendants' Motion for Summary Judgment as to claims against the individual Defendants arising under § 1983.
Squeezed in among their § 1983 claims, Plaintiff attempts to cast doubt on the constitutionality of the City's "sexually oriented business" ordinance, apparently alleging injury stemming from Baumert's and Igel's attempts to enforce the allegedly unconstitutional statute. To this extent, Plaintiff's claims must fail. The Seventh Circuit has declined to permit actions under § 1983 for the attempted enforcement of state laws and municipal ordinances, which are presumptively constitutional, even when they turn out, in hindsight, to have been unconstitutional. Andree v. Ashland County, 818 F.2d 1306, 1312-1313 (7th Cir. 1987). Furthermore, it remains unclear from the briefing whether Plaintiff intends to bring a direct constitutional challenge to the ordinance on First Amendment grounds in addition to claims under § 1983 for attempts to enforce the ordinance. Because Defendants' Motion for Summary Judgment is cast only in terms of claims for deprivation of constitutional rights, we do not address the issue in this Entry. However, to the extent Plaintiff attempts to frame a First Amendment challenge to the Washington ordinance, we are persuaded that such a challenge would not prove successful. The ordinance closely parallels another municipal regulatory scheme for adult-oriented businesses that was upheld by the Seventh Circuit as being constitutionally adequate. See Schultz v. City of Cumberland, 228 F.3d 831, 853 (7th Cir. 2000) (upholding sections of a municipal ordinance regulating the time, place, and manner of nude dancing, but ruling unconstitutional those sections of the ordinance that proscribe the depiction of specified sexual activities).
3. Municipal liability
In order to properly maintain a § 1983 action against an institutional state actor for the actions of its agents, a plaintiff must demonstrate (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not expressly authorized, is so permanent and well-settled as to constitute a custom or usage; or (3) that the plaintiff's constitutional injury was caused by a person with final policy-making authority. Billings v. Madison Metropolitan School Dist., 259 F.3d 807, 817 (7th Cir. 2001); Medina v. City of East Chicago, Ind., 2001 WL 1587880, at *8 (N.D.Ind. 2001). Status as a policymaker for § 1983 purposes is conferred by state or local law. Kujawski v. Board of Com'rs of Bartholomew County, Ind., 183 F.3d 734, 737 (7th Cir. 1999). However, the "final policymaker" inquiry also turns on the nature of the actions at the heart of the claim. "The question is whether the promulgator, or the actor, as the case may be-in other words, the decisionmaker-was at the apex of authority for the action in question." Gernetzke v. Kenosha Unified School Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001). Although the parties have not identified and we have not found any Indiana case law or statute specifically categorizing a mayor as a policymaker for purposes of § 1983, Indiana law empowers a municipal mayor with the authority to "enforce the ordinances of the city and the statutes of the state." Ind. Code § 36-4-5-3(1). We infer both from his statutorily assigned functions and the acts alleged in this case relating to the enforcement of state and local laws that Mayor Baumert qualifies as a policymaker in the instant matter. By contrast, Indiana law expressly indicates that "a police chief . . . is the final policymaker for his municipal police department." Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995), citing Ind. Code § 36-8-3-3(g). Therefore, Chief Igel clearly qualifies as a policymaker for purposes of this dispute.
This seemingly simple classification does not resolve the issue, however, because evidentiary deficiencies similar to those discussed above arise again with regard to the actions taken by Baumert and Igel. Plaintiff simply has not provided admissible evidence from which a jury could conclude that Defendants took any action that caused Plaintiff's constitutional injury. First, Plaintiff provides no evidence tending to establish that any of the police visits or investigations into Neighbor's Bar was based on anything but a legitimate law enforcement motive. Plaintiff likewise identifies no admissible evidence tending to establish that police visits to Neighbor's Bar occurred pursuant to any directive or even knowledge by Baumert or Igel. Plaintiff argues that the frequency with which police officers conducted warrantless searches of Neighbor's somehow supports the inference of a larger retaliatory campaign. Just as the mere occurrence of a warrantless administrative search of a business involved in a highly regulated industry, such as liquor service, does not per se violate the Fourth Amendment, Lesser v. Espy, 34 F.3d 1301, 1305 (7th Cir. 1994) (citation omitted), the mere occurrence of a series of warrantless searches, without more, does not indicate that such searches occurred pursuant to any directive of policymaking officials or with their knowledge. Without some evidence linking Baumert or Igel personally to these allegedly improper law enforcement activities, such that the evidence shows they caused the alleged constitutional injury, Plaintiff cannot support a claim for municipal liability under § 1983. Therefore, Defendants' Motion for Summary Judgment as to claims against the City of Washington is GRANTED.
Although Plaintiff casts the argument regarding the existence of a municipal policy in terms of actions by individuals with policymaking authority, we also note that Plaintiff fails to offer evidence from which a jury could conclude that the City maintained a widespread practice of conducting unauthorized searches of Neighbor's Bar. Plaintiffs cannot establish municipal liability without showing that the municipality's policy was the "moving force" behind the constitutional violation. Board of County Com'rs of Bryan County, Okla. v. Brown. 520 U.S. 397 (1997); Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). This may be shown indirectly "`by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned, thus in either event adopting, the misconduct of subordinate officers.'" Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000), quoting Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995). Other than conclusory statements by the Bakers about the frequency of the police appearances, Plaintiff has offered no specific, admissible evidence to indicate that any of the alleged police appearances was improper, or that the incidence of "bad acts" was such that policymakers caused or, by their inaction, endorsed any form of misconduct.
Conclusion Defendants moved for summary judgment on numerous grounds. For the reasons set out in detail above, we find that 1) Plaintiff's claims based on continuing violations are not limited by the applicable statute of limitations to actions occurring after June 26, 1999; however 2) Plaintiff failed to set forth specific, admissible evidence to establish Defendants' personal involvement in the alleged violations; and 3) Plaintiff failed to designate specific evidence from which a jury could reasonably conclude that any of the alleged acts occurred pursuant to a policy or custom. Accordingly, we DENY
Because we find that summary judgment is properly granted based on Plaintiff's failure to designate admissible evidence on necessary elements of the § 1983 claims, we need not proceed to consider whether Defendants are entitled to invoke the defense of qualified immunity for each alleged violation.
Defendants' Motion for Summary Judgment as to the expiration of the applicable statute of limitations, but GRANT Defendants' Motion as to the substantive claims for constitutional deprivation. In addition, we DENY as moot Defendants' Motion to Strike.