Bostic v. Vasquez

652 F.Supp.3d 971

Lorena E. BOSTIC, Plaintiff, v. Salvadore VASQUEZ; Clarence D. Murray; Diane Ross Boswell; Thomas P. Stefaniak, Jr.;Jan Parsons; and Miroslav Radiceski, Defendants.

CAUSE NO.: 2:15-CV-429-JPK

United States District Court, N.D. Indiana, Hammond Division

Signed January 23, 2023

J. Michael Katz, Goodman Katz Koonce & Maroc, Highland, IN, for Plaintiff.

Bryan R. Findley, Gregory P. Gadson, Kelly S. Thompson, Indiana Attorney General's Office, Indianapolis, IN, for Defendants Salvadore Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas P. Stefaniak, Jr., Samuel L. Cappas.

Caleb S. Johnson, Caleb S. Johnson Law LLC, Schererville, IN, Nicholas A. Snow, Harris Law Firm PC, Crown Point, IN, for Defendant Jan Parsons.

James B. Meyer, Lukas I. Cohen, James Meyer & Associates PC, Gary, IN, Tony Walker, The Walker Law Group PC, Gary, IN, for Defendant Miroslav Radiceski.

OPINION AND ORDER

JOSHUA P. KOLAR, MAGISTRATE JUDGE

This matter is before the Court on the motion for summary judgment filed by Defendants Salvadore Vasquez, Clarence D. Murray, Diane Ross Boswell, Thomas P. Stefaniak, Jr., and Jan Parsons (collectively "the Moving Defendants"¹). [DE 220]. The Moving Defendants argue they are entitled to judgment as a matter of law on Plaintiff Lorena E. Bostic's claims that they violated her constitutional rights by failing to protect her from a sexual assault perpetrated by her probation officer, Defendant Miroslav Radiceski.² In response to the Moving Defendants' motion, Bostic concedes that Defendants Vasquez, Boswell, and Stefaniak are not liable. [DE 232 at 10]. Accordingly, summary judgment will be entered in favor of those defendants.

Before turning to the summary judgment arguments of the two remaining Moving Defendants, Jan Parsons and Judge Clarence D. Murray, the Court wishes to acknowledge that certain facts do not appear to be in dispute, at least for purposes of this motion. The Moving Defendants do not contest that Bostic was the victim of a probation officer who used his governmental power to sexually assault her. The Moving Defendants, represented in this matter by the State of Indiana, ask the Court to enter summary judgment in their favor notwithstanding that a probation officer wielded governmental power to engage in atrocious and illegal actions. While legal arguments may require the granting of the motion for summary judgment, that does not negate the fact that Bostic's allegations, if true, represent a terrible harm perpetrated by a public official who abused his position of public trust.³

A. STANDARD OF REVIEW

The Federal Rules of Civil Procedure require the entry of summary judgment against a party "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. Summary judgment "is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Wade v. Ramos, 26 F.4th 440, 446 (7th Cir. 2022) (quoting Schacht v. Wis. Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999)). A party opposing summary judgment must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Doxtator v. O'Brien, 39 F.4th 852, 860 (7th Cir. 2022) (quoting Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505). In other words, the record must reveal that no reasonable jury could find for the non-movant. Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations omitted). Summary judgment is proper if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 646 (7th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party, Liberty Lobby, 477 U.S. at 25, 106 S.Ct. 2379, but the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). 'If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.' " Doxtator, 39 F.4th at 860 (quoting Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505).

B. FACTUAL BACKGROUND

The Court describes the material facts in the light most favorable to Bostic, the non-movant. These facts have not been tested through a trial, and the Court is not finding that any particular action actually occurred, or that Parsons or Judge Murray failed to take any action. The case remains set for trial against Defendant Radiceski. These facts are merely recounted as they stand for purposes of summary judgment.

1. Prior Alleged Assault of Another Female Probationer in 2011

In the relevant time period, Defendant Parsons was the Director of Probation for Lake County. As the chief probation officer, Parsons was tasked with directing and supervising the probation department, and taking appropriate corrective actions when the probation officers failed to meet expectations. [Pl. Ex. F, Deposition of Jan Parsons, 11:17-12:7, 33:5-35:20]. The probation department had no formal rules or procedures to address complaints against probation officers. This is true even though, prior to 2011, a former chief probation officer was demoted without termination after criminal charges were filed against him for trying to kiss a female probationer in her home. [Id., 71:2-72:16; Pl. Ex. B, Deposition of Gisela Thielbar, 35:10-21].

On June 5, 2011, a probationer ("A.R.") reported to Parsons that her probation officer, Defendant Radiceski, had behaved inappropriately. A.R. wrote in a typed written statement [Def. Ex. A] that she was "quite disturbed with what took place" at the end of a routine meeting on May 9, 2011. Radiceski noticed rings on her fingers and asked if she was married. A.R. replied that she was not married. Soon after, Radiceski noticed a tattoo on A.R.'s wrist and asked if she had any more. A.R. replied that she had four tattoos, including the one on her wrist. Radiceski then told A.R. to follow him to the main probation office. As they were walking to the probation office, Radiceski asked if he could see A.R.'s other tattoos. A.R. did not object, believing that "it was mandatory" and that she "was being taken somewhere to take pictures of them to keep on file for identifying marks."

After visiting the probation office, Radiceski told A.R. to follow him to a hallway by the office. He then opened a door, which turned out to be a stairwell, and told A.R. to walk to the top. As they were walking up the stairs, he asked her "questions like why [she] was single and other things that were making [her] start to feel a little uneasy." At the top of the stairs, still under the impression that she was being taken to an office to view her tattoos, Radiceski told A.R. to stop and show him her tattoos in the stairwell. Once again, A.R. "did not want to say no because at the time [she] was a little scared to speak up and object because he [was her] probation officer. [She] ha[d] never been on probation before and [did] not know normal procedure, so [she] did not want to be insubordinate."⁴ A.R. then showed Radiceski her tattoos, which were on her rib cage, lower back, hip and wrist. To show the tattoos on her lower back and hip, she had to lift her shirt in the back and move her pants a little; to reveal the tattoo on her rib cage she had to lift her shirt in the front "quite a bit."

After showing Radiceski her tattoos, A.R. "was feeling very uneasy about the situation and asked if [she] could have a seat on the stairs so [she] was able to process what was going on. He then sat next to [her] and lifted [her] shirt himself to view the tattoo on [her] back again, and then moved away [her] pants quite some ways to view the tattoo on [her] hip again." A.R. did not say anything, but reported that "it definitely made [her] feel a whole lot more uncomfortable." She "sat there in awkward silence, and he then said, since you are not married and you don't have a boyfriend, . . . when [was] the last time [you] had sex[?]." A.R. replied "I don't know," and then asked if she could go. Radiceski said yes and then walked A.R. down the stairs and to the front door.

A.R. reported to Parsons that after she got in her car, she was in shock about what happened. She called a friend, who was an officer for Lake County, to tell him about the incident, and he advised that she report it to her attorney, which she did. A.R. reported to Parsons: "I am very disturbed by this to the point that I do not want to be left alone with my probation officer. I am trying to abide by all probation regulations and do what I need to do that is required of me, but I don't [ ] want this probation officer to be assigned to me anymore, nor do I want him to contact me in person or over the phone, and that is all I ask from this incident." [Def. Ex. A].

Parsons investigated A.R.'s complaint by meeting with A.R. and Radiceski, and seeking any available surveillance footage from building security. When asked, Radicescki denied any inappropriate behavior. [Parsons Dep. 76:21-79:23]. Parsons acknowledged that if A.R.'s allegations were true, Radiceski's actions would not only have been a battery, but also a violation of the probation officer code of conduct that could have led to Radiceski's termination. [Id. 17...