Perry v. Thomas, 1:09-cv-1051-TWP-MJD

JEROME PERRY, Plaintiff,

v.OFFICER MATTHEW THOMAS, et al., Defendants.

1:09-cv-1051-TWP-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

Dated: February 18, 2011.

Order on Motion for Summary Judgment

Plaintiff Jerome Perry ("Perry") is the plaintiff in this civil rights action. Officers Matthew Thomas and Christopher White (collectively "the Officers") of the Indianapolis Metropolitan Police Department ("IMPD") are the defendants, as is the IMPD itself. Perry claims that the defendants inflicted injuries on him and violated his rights while handcuffing him after entering his home without a warrant or other legal justification. The defendants seek resolution of all claims through summary judgment. For reasons explained below, the defendants' motion for summary judgment is granted in part and denied in part.

I. Summary Judgment Standard

"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." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1103 (7th Cir. 2008) (citations omitted). "The court shall grant summary judgment 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(a). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 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. The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factualdisputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute." Harney, 526 F.3d at 1104 (internal citations omitted). "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).

II. Material Facts

The court finds the following facts are not genuinely in dispute. These facts shall be treated as established in this action pursuant to Federal Rules of Civil Procedure 56(g).

1. On June 21, 2008, Perry contacted police to report that he had been assaulted by Charlie Esco. As a result of the confrontation with Charlie Esco, Perry suffered injuries, including an injury to his nose. Also, during this altercation, Perry and Charlie Esco ended upon the ground. Photographs of Perry's injuries on June 21, 2008, were taken at the scene of the altercation. Perry admits he suffers from a sinus condition, has had plastic surgery on his nose, and has scarring on his nose.

2. On August 22, 2008, Officers White and Thomas approached Perry's home to assist Sarah Wilken with Child Protective Services ("CPS") in removing a child from Perry's home. Officers Thomas and White were advised by Sarah Wilken that she had been "ordered to remove three small children from the residence." Ms. Wilken advised the Officers that the children had been involved in an incident where the father of the youngest child, Charlie Esco, pointed a firearm at someone with the children in the vehicle. Officer Thomas asked Ms. Wilken if there were any weapons in the home, and Ms. Wilken advised the Officers that she did not know, but that Perry was known to carry a handgun.

3. On August 22, 2008, Perry was at his residence located at 1913 W. 65th Street in Indianapolis, Indiana. He was babysitting his three grandchildren and playing with them. There was no one else inside the residence and the house was quiet. At approximately 2:15 p.m., Perry answered his front door and was confronted by Officers Thomas and White. The Officers entered Perry's home and did not provide Perry with any legal authority for why they were there.

4. Perry was handcuffed and then after the children were secured the Officers released Perry from the handcuffs and left the scene.

5. On August 22, 2008, following the removal of the children from Perry's home, Perry went to the hospital. Perry was treated for left shoulder and arm pain and for an abrasion on his nose. Perry was diagnosed with shoulder strain and given a sling for comfort and instructed on exercises to do.

6. Perry later went to Ortholndy for treatment of left shoulder pain. He was diagnosed with a rotator cuff tear. Perry had arthroscopic rotator cuff surgery on October 18, 2008, and had two follow up appointments at Ortholndy on October 29, 2008, and December 9, 2008.

7. On August 25, 2008, the Marion County Department of Children Services filed a Motion for Authorization for Foster Care Placement Due to Emergency Removal from Temporary In-Home Trial Visit. This motion was granted by the Marion Superior Court, Juvenile Division.

8. The IMPD received two tort claim notices from Perry regarding the August 22, 2008, incident. The first such notice, dated January 16, 2009, and received by the IMPD on January 21, 2009, states that on "August 22, 2008, officers of the Indianapolis Metropolitan Police Department were executing a warrant to remove children from Mr. Perry's home." This notice goes on to state that during the encounter, Perry "wrenched his shoulder, causing a rotator cuff tear." The City of Indianapolis received a second tort claim notice, dated January 21, 2009, stating that Perry was "babysitting his grandchildren... on August 22, 2008 when officers of the of the [sic] Indianapolis Metropolitan Police Department arrived accompanying Sarah Wilkins, a representative of Child Protective Services, arrived [sic] to take the children into State custody due to an incident involving the father of one of the children." This notice goes on to state that Perry's encounter with the Officers "injured the back" of Perry.

III. Disputed Facts

Many facets of the interaction between the Officers and Perry on August 22, 2008, are disputed. Specifically, the defendants provide evidence that after making contact with Perry, the Officers, as well as Ms. Wilken, observed Perry become agitated. Officer Thomas noticed a large bulge in each of Perry's front pants pockets and attempted to perform a pat-down search for everyone's safety. Perry did not allow the pat-down to be conducted and the Officers were forced to subdue Perry with handcuffs.

Perry disputes the defendants' version of events, and instead states under oath: When the Officers entered his home one of them struck Perry with a punch and knocked him backwards onto the floor near the couch. The Officers pulled Perry's arms behind his back and handcuffed him. The Officers then picked Perry up and threw him on the couch by pulling Perry's arms violently behind his back. The Officers put a knee in Perry's back and pulled his arms back further. The Officers struck Perry in the head and on his shoulders while he was handcuffed. The Officers then pulled Perry up from the couch and placed him upright. Perry did not resist the Officers in any fashion and he was not agitated. When asked, Perry told the Officers that he was not carrying a handgun. Perry asked the Officers if he was under arrest and what the charges were against him. One of the Officers responded by stating "we don't have to put up with your shit" and stated that they would ask the questions. Perry was injured and incurred medical bills totaling $13,960.93 as a result of this incident.

IV. Discussion

A. Claims Brought Pursuant to 42 U.S.C. § 1983

Count I of the complaint alleges that on August 22, 2008, Officers Thomas and White entered Perry's home without a warrant or legal justification for doing so and while there handcuffed and struck Perry causing injuries. Count I is brought pursuant to 42 U.S.C. § 1983, against the Officers in their individual capacities only.¹

Section 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and must present sufficient evidence to create genuine issues of material fact to avoid summary judgment. McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).

1. Qualified Immunity

First the defendants seek dismissal of the claims brought pursuant to § 1983 on the basis that the Officers are entitled to qualified immunity.

Government 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The issue of qualified immunity is a question of law for the court, but issues of fact relevant to determining whether qualified immunity applies are questions for the jury. Williams v. Pollard, 44 F.3d 433, 434-35 (6th Cir.1995). Summary judgment is not appropriate if there is a genuine factual dispute relating to whether the defendant committed acts that allegedly violated clearly established rights. Dickerson v. McClellan, ...