Pinkney v. Thomas

583 F.Supp.2d 970

Stephen J. PINKNEY, Plaintiff, v. Officer William THOMAS, Ralph Peconge, and City of Fort Wayne, Defendant.

Case No. 1:07-CV-186.

United States District Court, N.D. Indiana, Fort Wayne, Division.

September 17, 2008.

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Christopher C. Myers, Ilene M. Smith, Christopher C. Myers & Associates, Fort Wayne, IN, for Plaintiff.

James P. Fenton, Kathryn A. Brogan, Patrick L. Proctor, Eilbacher Fletcher LLP, Fort Wayne, IN, for Defendant.

OPINION AND ORDER

ROGER B. COSBEY, United States Magistrate Judge.

I. INTRODUCTION

Stephen J. Pinkney is suing William Thomas, a Fort Wayne police officer, and Ralph Peconge, a Fort Wayne Community Schools ("FWCS") security guard, in their individual capacities, alleging they used excessive force during his arrest on October 6, 2006. Concerning Peconge, Pinkney alleges an Indiana tort claim of battery, as well as a 42 U.S.C. § 1983 claim that Peconge used unreasonable force in concert with Thomas or that Peconge should have stopped Thomas from repeatedly hitting him. Peconge has filed a motion for summary judgment (Docket # 20) and a motion to strike statements in Pinkney's affidavit (Docket # 31), which are now before the Court.

The motion for summary judgment (Docket # 20) is limited to the argument that there is no evidence to support either the state law or § 1983 claims against Peconge. In particular, Peconge maintains that Pinkney's evidence does not make out a battery claim because the physical contact between the two was lawful, and besides, Peconge is entitled to immunity under Indiana's Tort Claims Act, Ind.Code § 34-13-3 et seq. As for the § 1983 claim, that too fails in Peconge's view because he had no advance knowledge that Thomas would strike Pinkney; and furthermore, he had no opportunity to stop Thomas from doing so. Despite these contentions, the motion for summary judgment (Docket # 20) will be DENIED.

Peconge's motion to strike (Docket # 31) seeks to strike paragraph 10 and parts of paragraphs 12, 13 and 14 of Pinkney's affidavit offered in opposition to the motion for summary judgment. The Court, however, considers the motion moot because Peconge's motion for summary judgment fails even if we exclude those statements.

II. FACTUAL BACKGROUND

Although Peconge is a full-time Fort Wayne firefighter, on Wednesday, October 4, 2006, he was working as a part-time security guard for Fort Wayne Community Schools at Weisser Park Elementary School. (Peconge Aff. ¶¶ 2-6, Exs. A, B.) At that job, he was responsible for the safety and security of the school's students, staff, patrons, visitors, and public and private property, as well as the enforcement of "all federal, state, and local laws" in addition to the rules and regulations of Fort Wayne Community Schools. (See Weicker Aff. ¶¶ 2-7, Ex. A; Sleet Aff. ¶¶ 2-6.)

While working at the school on the morning of October 4, Peconge received a call over his two-way radio from a secretary in the school's office, reporting that kids were fighting in the front of the school. (Peconge Aff. ¶ 7.) Peconge immediately headed there and saw Pinkney, who he did not know at the time, and another man standing near a car. (Peconge Aff. ¶ 8.) The other man had a stick or a bat in his hand, and when he saw Peconge, he got into the car and drove off, leaving Pinkney standing at the curb. (Peconge Aff. ¶ 9-10.) Peconge approached Pinkney and asked him, "[W]hat's going on?" (Peconge Aff. ¶ 10.)

Pinkney claims that the other man was a brief acquaintance named "Vel," and that they had a dispute in front of the school over some money that Pinkney had given to Vel for a ride. (Pinkney Dep. 57.) The dispute grew heated and Pinkney took Vel's car keys, resulting in some grappling in front of the school. (Pinkney Dep. 72-77.) At some point Pinkney threw Vel's keys into the front seat of Vel's car, which resulted in Vel producing a stick and ordering Pinkney out of the car. (Pinkney Dep. 85-95.) Apparently Pinkney was never hit with the stick, but some more wrestling occurred outside of the car. (Pinkney Dep. 85-95.) Pinkney claims that during the struggle, he called out to a bystander more than once, "Call the police. This guy is robbing me." (Pinkney Dep. 75, 80, 82.) According to Pinkney, Vel was the aggressor and Pinkney gave up once he saw that Vel had a bat. (Pinkney Dep. 92-94.)

After Vel drove off, Pinkney observed Peconge approaching him. (Pinkney Dep. 94-95.) Pinkney claims that he approached Peconge (who, due to his uniform, appeared to be a fireman), and said, "Did anybody hear me calling for the police? This guy just robbed me." (Pinkney Aff. ¶ 2; Pinkney Dep. 95.) Pinkney claims that Peconge responded, "Now you know that I cannot have you fighting in front of my school." (Pinkney Aff. ¶ 3.) At that point, Pinkney thought that Peconge was accusing him of something, so he began to walk away. (Pinkney Aff. ¶ 4.) As he was walking away, Pinkney observed a police officer (who he later learned was Thomas) drive up in a squad car. (Pinkney Aff. ¶ 5; Pinkney Dep. 97.) Pinkney decided that he did not want to talk to the police and to keep on walking, apparently because he knew he would end up getting arrested. (Pinkney Dep. 97-100.)

Pinkney heard Peconge and Thomas say something to each other, and Peconge claims that he simply told the police officer that Pinkney had just reported being robbed. (Pinkney Aff. ¶ 6; Peconge Aff. ¶¶ 10-15.) In any event, Pinkney claims that Thomas yelled to him, "Hold it right there."¹ (Pinkney Dep. 100-01.) At about this time, Peconge started to chase Pinkney and then Pinkney saw Thomas reach for his weapon. (Pinkney Aff. ¶ 6.) At that point, Pinkney began to run away. (Pinkney Aff. ¶ 6.)

Pinkney ran across the street and down an alley, where he tried to jump a chain link fence. (Pinkney Dep. 107-08.) Pinkney claims that as he tried to jump the fence, Peconge (who was ahead of Thomas throughout the chase) caught up to him and grabbed his left arm with both hands, seizing him. (Pinkney Dep. 108.) Pinkney claims that he did not resist and in fact, "just turned and looked," and almost instantaneously Thomas arrived and began hitting him in the face with his fist. (Pinkney Dep. 108.) Pinkney claims that Thomas hit him three times or more in "[j]ust a couple of seconds[,]" and that it "happened really quick," at about the same time as Peconge caught his left arm. (Pinkney Dep. 138-39). Pinkney then complied with Thomas's order to get on his knees and was hand-cuffed. (Pinkney Dep. 110-11, 138-39.)

Pinkney admits that neither he nor Peconge had any notice or notion that Thomas was going to hit him and is uncertain whether Peconge had an opportunity to stop Thomas's blows. (Pinkney Dep. 138-39.)

III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P 56(c). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After "a properly supported motion for summary judgment is made, the adverse party `must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (quoting Fed. R. Civ. P. 56(e)).

IV. DISCUSSION

A. Pinkney's Common Law Battery Claim Survives Summary Judgment.

Peconge maintains that Pinkney's state law battery claim fails as a matter of law because: 1) Pinkney has not shown a necessary element, that Peconge intended to harm him; 2) the physical contact with Pinkney was privileged and lawful because Peconge was entitled to assist Thomas in the apprehension of Pinkney; and 3) Peconge was acting within the scope of his employment with FWCS and is therefore immune from liability under Indiana's Tort Claims Act, Ind.Code § 34-13-3 et seq.

In turn, Pinkney disputes Peconge's claim of immunity, maintaining that a jury could conclude that Peconge chased and grabbed him with the intention of rendering him defenseless against Thomas's physical onslaught. Pinkney also argues that Peconge's touching was unlawful because he had the right to simply walk away from Peconge and Thomas.

1. Whether Peconge committed a battery, and if so, whether it was privileged, are genuine issues of material fact.

What constitutes a civil battery is well established. "An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results." Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind.2007) (citing Restatement (Second) of Torts § 13 (1965)).

Accordingly, Peconge is liable for a simple battery if he "intentionally causes bodily contact to the plaintiff in a way not justified by the plaintiff's apparent wishes or by a privilege, and the contact is in fact harmful or against the plaintiff's will." 1 D.B. Dobbs, The Law of Torts § 28, at 52-53 (2001). On this record, of course, it can certainly be inferred that Peconge was acting with the knowledge that his touching of Pinkney was inconsistent with Pinkney's wishes, that is, "offensi...