CAUSE NO. 3:98CV0592CAN
October 26, 2000
Plaintiffs Dempsey Jones, Paul Hines, Steve Hubbard, and Dale Jones bring this suit under 42 U.S.C. § 1983 and 1988, alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution, and alleging related violations of state law. The Complaint arises out the May 14, 1998 arrests of the plaintiffs by South Bend police officers. This matter is currently before the court on defendants' Motion for Summary Judgment. For the reasons that follow, the Motion is granted.
I. Relevant Facts Procedure
On November 17, 1998, plaintiffs Dempsey Jones, Paul Hines, Steve Hubbard and Dale Jones filed a civil lawsuit against the named defendants, Officer James Sweeney, and "any unknown officers," in their official and personal capacities, the South Bend Police Department and the City of South Bend. The Complaint alleges four separate counts: (1) that excessive force was used by the defendant police officers against the plaintiffs in violation of the Fourth and Fourteenth Amendments; (2) that the officers committed battery and intimidation when plaintiffs' were arrested; (3) that the City of South Bend, and South Bend Police Department were negligent in the supervision of the defendant police officers; and (4) that they were negligent in hiring Officer James Sweeney.
Plaintiffs' claim arose on May 14, 1998, when defendant Sweeney was called to a home at 1021 North Diamond Avenue in South Bend to investigate complaints from the couple who lived in the home indicating that they were being threatened by the neighbors living at 1017 North Diamond. When Officer Sweeney arrived at the location, he spotted the four plaintiffs sitting in the front yard of the 1017 Diamond Avenue address. Not knowing who had called the police, Sweeney questioned the men about the call. According to a police report filed just after the arrests were made, as Officer Sweeney approached the men, plaintiff Dempsey Jones, yelled "Ain't nobody called the mother f---ing police." Thereafter, James Black waived to Officer Sweeney from his doorway at 1021 North Diamond, signaling the officer to come in.
Officer Sweeney went inside the home, and spoke with Black and Michelle Turner about the reported threats; Black and Turner told Officer Sweeney that they lived in the home together and that since moving in they had been threatened repeatedly by the plaintiffs who lived at 1017 North Diamond. Moreover, according to the police reports filed in connection with the incident, all the while the officer was inside talking with Black and Turner he could hear the plaintiffs outside continuing to make threatening comments directed toward the couple. Officer Sweeney concluded from their comments, their behavior, and from the empty alcohol containers strewn across the front yard at 1017 North Diamond, that the four plaintiffs sitting in front of the house, were intoxicated. He called for backup and arrested the four.
According to plaintiffs' Complaint, in the process of making the arrests police officers assaulted each of the plaintiffs. Specifically, the Complaint alleges that plaintiff Dempsey Jones' head was struck against a squad car, that he was choked, threatened with being shot and sprayed with pepper spray. Additionally, it alleges that plaintiff Paul Hines was choked and threatened with being shot, that plaintiff Steve Hubbard was struck with an object believed to be a flashlight, and that plaintiff Dale Jones was pulled by the ankles from his wheel chair and kicked. In answering the Complaint the defendants deny each of the allegations made against them.
On February 17, 2000, defendants served plaintiffs' counsel with Requests for Admission made pursuant to Federal Rule of Civil Procedure 36. The requests served asked the plaintiffs to admit or deny that they were intoxicated at the time of the May 14, 1998 arrests, and to admit or deny each of the allegations of force made in their Complaint, with the exception of the allegations related to the use of pepper spray. The admissions were never answered. As a consequence the defendants now contend that they were admitted by operation of the relevant rule of procedure, and that the facts contained in each admission are now conclusively established.
The record of this case indicates that plaintiffs' counsel was suffering from an illness at the time the admissions were served. It also indicates that he has since recovered. Despite the recovery, however, and despite the serious consequence of failing to answer admissions, the plaintiffs have to date never asked the court for leave to withdraw the admissions.
It is based on the facts contained in the plaintiffs' admissions that defendants have filed for summary judgment. Their Motion was filed on June 9, 2000. Twice since the Motion was filed, plaintiffs have asked for additional time to respond, and twice that additional time has been granted. This court has been very generous in the time allowed the plaintiffs to respond to defendants' motion. It has patiently waited for plaintiffs' response for more than four and a half months. The extended deadlines have now passed, but no response has been filed. Accordingly, the court finds that this matter is now ripe for ruling.
II. Summary Judgment Standard
"It is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained." Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983). Thus, the Supreme Court has made it clear that summary judgement is not a disfavored procedural shortcut, but it is rather an integral part of the federal rules as a whole, which are designed to secure the speedy and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 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 as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Initially under Rule 56(c), a party seeking summary judgment bears the responsibility of informing the court of the basis for the motion, and identifying evidence which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the party that bears the burden of proof on a particular issue at trial cannot resist the motion by merely resting on its pleadings. Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994).
As Fed.R.Civ.P. 56(e) makes clear, to survive summary judgement the adverse party's response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994); Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994): Roger v. Yellow Freight Systems, 21 F.3d 146, 148-49 (7th Cir. 1994). The bottom line is that a summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-252.
Federal Rule of Civil Procedure 36(a) provides that if a party makes a request for admissions and the other party does not respond within 30 days, then the matters at issue in those admissions shall be deemed admitted. Walsh v. McCain Foods Ltd., 81 F.3d 722, 726 (7th Cir. 1996). Any matter that is admitted by default or otherwise is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Fed.R.Civ.Proc. 36(b). In other words unless admissions are withdrawn, the court is precluded from reexamining the admitted facts. Chicago Dist. Council of Carpenters Pension Fund v. P.M.Q.T., Inc., 169 F.R.D. 336, 341 (N.D. Ill. 1996). Equally important for the purpose of the defendants' Motion now pending, is that the resulting admissions are proper even if they relate to ultimate facts or prove dispositive of the entire case. Cereghino v. Boeing Co., 873 F. Supp. 398, 403 (D.Or. 1994). Admissions made under Rule 36, even admissions made under the default provision of Rule 36(a), can properly serve as the factual predicate for summary judgment. U.S. v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987).
Defendants argue that this cause of action is subject to summary judgment because plaintiffs have admitted by default that the allegations of their Complaint are untrue, and thus no triable issue of material fact remains for trial. By failing to respond to defendants' request for admissions plaintiffs have conclusively admitted to the following:
Plaintiff Dempsey Jones admits to threatening his neighbors Michelle Turner and James Black; he admits to being intoxicated when arrested on May 14, 1998; he admits that he yelled and swore at police, and kicked Officer Sweeney; and he admits that his head was never smashed as alleged in the Complaint, nor was he chocked.
Plaintiff Paul Hines admits that he was intoxicated on May 14, 1998, he admits that he yelled and cursed at police while Dempsey Jones was being arrested; admits that he screamed obscenities at Turner and Black during the arrest; he admits he refused to get inside the squad car; and admits that he was never choked by a police officer as alleged in his Complaint.
Plaintiff Dales Jones admits he and the other three plaintiffs were intoxicated on May 14, 1998; he admits he yelled and cursed at police officers on that date and refused to calm down when directed to do so; he admits that he struck a police officer; admits he was never kicked by a police officer as is alleged in his Complaint, nor was he injured in any way.
Plaintiff Steven Hubbard admits he was intoxicated on May 14, 1998; he admits he yelled and cursed at police, and refused to stop when directed to do so; he admits that contrary to what is alleged in his Complaint, he was never struck by police.Defendants' Exhibits 5-8.
To determined whether the admitted facts are dispositive of the plaintiffs' cause the court must look at the admitted facts in the context of each of the four claims alleged.
Plaintiffs first claim is asserted under 42 U.S.C. § 1983 alleging an excessive force claim in violation of the Fourth Amendment and applicable to the plaintiffs under the Fourteenth Amendment to the United States Constitution. To state a Fourth Amendment cause of action a plaintiff must prove two elements; they must prove that defendants' conduct constituted a seizure, and that the seizure was unreasonable. Kernats v. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994). There is no dispute here over whether the plaintiffs were arrested thereby constituting a seizure for the purpose of our constitutional analysis. The sole question to be addressed is, therefore, whether the force used in the execution of the arrest was reasonable.
"Generally, under the Fourth Amendment, a police officer's use of force is unconstitutional only if the force used is unreasonable under the circumstances." Lester v. City of Chicago, 830 F.2d 706, 709 (7th Cir. 1987) (citing Bell v. Milwaukee, 746 F.2d 1205, 1278-79 n. 88 (7th Cir. 1984). "Determining whether the amount of force used to effectuate a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual s Fourth Amendment interests against the countervailing governmental interests." Graham v. Connor, 490 U.S. 386, 396 (1989). Factors relevant to this inquiry include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. In weighing the listed factors, a court must also allow for "the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation." Id. at 397. In essence, the reasonableness inquiry is an objective one which considers whether the officer's actions were objectively reasonable in light of the circumstances confronting the officer at the time of the challenged arrest. Turner v. Marion County Sheriff 94 F. Supp.2d 966, 993 (S.D. Ind. 2000).
In this case, when the prescribed factors are weighed, even in the light most favorable to plaintiffs as required on a motion for summary judgment, it indicates that a reasonable fact finder could only conclude that the force used by the defendant officers was reasonable. Plaintiffs admit that prior to their arrests they were intoxicated, they were yelling and cursing at police, and making threats to their neighbors. Whether this behavior constituted misconduct that could be described as violent or serious is debatable. But the resolution of the debate is not material to the resolution of this matter as a whole. This is because following the admissions of plaintiffs, the only allegation of force that remains in evidence is the allegation that Dempsey Jones was sprayed with pepper spray. Moreover, neither the Complaint nor any subsequent pleadings assert any harm resulting from that spraying. And Jones, also admits that prior to being sprayed he was both verbally and physically abusive to police as they attempted to place him under arrest; specifically, he admits that he kicked Officer Sweeney.
Significantly, Dempsey Jones' admission of kicking Officer Sweeney weights heavily in favor of the defendants. The admission demonstrates both that he was actively resisting arrest, and that he posed a risk to the arresting officers' safety. Jones' admitted physical outburst forced police officers to make a split second judgement. Four intoxicated men were yelling and cursing at police, when Dempsey Jones struck out. Consequently, it was reasonable for officers to exercise their judgment and use pepper spray to subdue Jones. See Tofano v. Reidel, 61 F. Supp.2d 289, 301 (D.N.J. 1999) (because plaintiff was actively resisting and had slashed the arresting officer's neck with the handcuff, the officers' use of pepper spray was warranted); Monday v. Qullette, 118 F.3d 1099, 1103-04 (6th Cir. 1997) (the use of single burst of pepper spray was reasonable where plaintiff adamantly refused to go to hospital and officer believed that plaintiff had consumed lethal amount of alcohol); Griffin v. City of Clanton, 932 F. Supp. 1359, (M.D.Ala.1996) (the use of pepper spray justified where officer believed plaintiff was intoxicated and "struggling with a number of officers," even where officer sprayed plaintiff directly in the face).
Our Fourth Amendment jurisprudence has long recognized that a police officer making an arrest has the right to use "some degree of physical coercion or threat thereof to effect it." Graham v. Connor, 490 U.S. at 396. The facts that remain following plaintiffs' admissions do not support so much an as inference that the degree of force used in executing plaintiffs' arrests was anything but reasonable. Accordingly, the plaintiffs have no Fourth Amendment claim and judgment must be entered in favor of the defendants.
B. Common Law Battety and Intimidation
Next plaintiffs allege state law claims of battery and intimidation. Under Indiana law, battery has long been defined as "the touching of a person in a rude and insolent manner against the will of the person touched. McGlone v. Hauger, 104 N.E. 116, 121-22 (Ind.App. 1914). Even the least amount touching of another can be considered as a battery under Indiana law. Fields v. Cummins Employees Federal Credit Union, 540 N.E.2d 631, 640 (Ind.App. 1989). The exception to that rule, however, is that law enforcement officers, are privileged to use force against another person in the performance of their duties under a standard of objective reasonableness. See City of South Bend v. Fleming, 397 N.E.2d 1075, 1077 (Ind.App. 1979). Consequently, only those officers who use excessive force are subject to common law suits for assault and battery. Crawford v. City of Muncie, 655 N.E.2d 614, 622 (Ind.App. 1995), trans. denied; Fleming, 397 N.E.2d at 1077; City of Gary v. Archer, 300 N.E.2d 687 (Ind.App. 1973), trans. denied.
Here, because the court has determined that the force used to effectuate the plaintiffs' arrests was reasonable under the circumstances, it must also conclude that the actions of the charged police officers was not a battery as it is described under Indiana law. Reasonable force applied incident to lawful arrest is privileged in Indiana and not subject to a battery claim. Meyer v. Robinson, 992 F.2d 734, 738 (7th Cir. 1993)( quoting Fleming, 397 N.E.2d at 1077). As a result no battery is alleged by the facts that remain following the plaintiffs' admissions.
Next, the court turns to plaintiffs' claim of intimidation. While there is an Indiana criminal statute defining the crime of intimidation, the court can find no statute or case law that creates a civil cause of action for intimidation. For that reason alone the claim of intimidation is appropriately disposed of on defendants' Motion for Summary Judgment.
Indiana Code 35-45-2-1 provides that person is guilty of the misdemeanor charge of intimidation if:
"(a) A person who communicates a threat to another person, with the intent that: (1) the other person engage in conduct against his will; or (2) the other person be placed in fear of retahation for a prior lawful act. . ."
By the nature of the position, a police officer's duty includes some degree of intimidation as it is described in the quoted statute. Consequently, the court logically concludes that even if intimidation were a civil cause of action, it would fail as applied to a police officer under the facts of this case.
C. Negligent Supervision and Hiring
Similary, the court also concludes that there is no evidence supporting plaintiffs' claims of negligent supervision and negligent hiring. It is well established law that there is no cause of action against a municipality or one of its subdivisions based upon the actions of one of its police officers when there has been a determination that the officer inflicted no constitutional harm. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). Id. In Heller, the Supreme Court pronounced that rule emphatically in concluding that if an officer has inflicted no constitutional injury, "it is inconceivable" that a municipality, or police department should be held liable for the officers' actions.
Here, because the facts dictate the court to conclude that the named officers did not violate the plaintiffs' constitutional rights, "there is no basis for liability against the other defendants either." Tom v. Voida, 963 F.2d 952, 962 (7th Cir. 1992). Accordingly, the facts that remain following the plaintiffs admissions demand that summary judgment be granted in favor of the City of South Bend and the South Bend Police Department on plaintiffs' claims of negligent supervision and negligent hiring of the officers involved in the incident giving rise to their Complaint.
While the Court recognizes that plaintiffs' failure to timely respond to the Requests for Admission has resulted in harsh consequences, "this result . . . is necessary to insure the orderly disposition of cases . . . ." Kasuboski, 834 F.2d at 1350. Based upon the facts in issue as the result of plaintiffs admissions the court concludes that there is no genuine issue of material fact and that summary judgment is appropriate. For this reason, defendants Motion for Summary Judgment [Dkt. No. 23] is GRANTED.