Ware v. Gary Cmty. Sch. Corp.

GLENN D. WARE, Plaintiff, v. GARY COMMUNITY SCHOOL CORPORATION,and MICHAEL BROWN, Defendants.

CAUSE NO. 2:15-CV-42-PRC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

August 2, 2017

OPINION AND ORDER

This matter is before the Court on a Motion for Summary Judgment [DE 93], filed by Defendants Gary Community School Corporation (GCSC) and Michael Brown on March 1, 2017. For the reasons set forth below, the Motion is granted in part and denied in part.

PROCEDURAL BACKGROUND

Plaintiff Glenn D. Ware initiated this civil rights action on February 3, 2015. The controlling complaint is the Third Amended Civil Rights Complaint, filed on November 27, 2015. On February 9, 2016, the Court dismissed the claims brought against Brown in his official capacity.

GCSC and Brown filed the instant Motion for Summary Judgment on March 1, 2017. Ware filed a response on May 15, 2017. GCSC and Brown filed a reply on May 30, 2017. The Motion is fully briefed and ripe for ruling.

Ware, Brown, and GCSC orally agreed on the record to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

STANDARD OF REVIEW

The Federal Rules of Civil Procedure require that a motion for summary judgment be granted "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). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Summary judgment is appropriate when no material fact is disputed and the moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could find for the other party based on the evidence in the record." Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R. Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08; Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).

"Once the moving party puts forth evidence showing the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party cannot resist the motion and withstand summary judgment by merely resting on his pleadings. See Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) (1986)). Rule 56(e) provides that "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it . . . ." Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.

In viewing the facts presented on a motion for summary judgment, 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. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765 (7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.

MATERIAL FACTS

Ware's Deposition Testimony

At his deposition, Ware testified as follows. On February 3, 2013, at around 9:00 p.m., an incident occurred with Brown at a gas station. Ware was in the gas station, and as he was paying for his items, a car pulled up and "kind of blocked the gas station's door." (Pl.'s Ex. A, 43:21-22, ECF No. 105-2). Brown recognized the car as a GCSC police car. Brown entered the gas station in full uniform with a badge that identified him as M. Brown. Brown told Ware that, "[w]ith those big [expletive] pants you got on, if you was to run from me, you couldn't get away." Id. at 44:7-9. Ware replied that "[w]ith your [expletive] car blocking the gas station door, and I'm handicapped, I couldn't run from you no way." Id. at 44:9-11.

Ware proceeded to his vehicle. When he was approximately four feet from the vehicle, Brown ran out of the gas station and called to Ware. Ware turned to Brown and Brown swung at Ware with his right hand. Ware blocked the swing. Brown told Ware to put Ware's hands on the vehicle. Ware laid on the car with his palms up. Brown ran up behind Ware, grabbed Ware by the back of the neck, lifted him off the ground, and forced his face into the hood of the car. Brown pulled his weapon out. Brown proceeded to smash Ware's face into Ware's vehicle. Brown also searched Ware's vehicle without consent. When Ware indicated that he did not consent to the search, Brown told Ware to be quiet and to stand to the side of the vehicle.

Ware called the Gary Police around 9:30 p.m. that same night to report the incident. Ware was told to return to the gas station, and when he returned to the station, Brown was still there. Officer Allen Glenn met with Ware. Officer Glenn informed Ware that Brown was a GCSC Officer and not a Gary Police Officer. GCSC communicated that Brown was its employee.

Ware spoke with an Officer Horton twice within two weeks of the incident. In his statement of facts, Ware asserts that Horton is an officer for GCSC. However, none of the cited evidence states who Horton's employer is.

Ware also submits other assertions in his statement of facts, but the pages of Ware's deposition that were cited in support of these statements were not submitted to the Court or do not support the assertions, so the Court does not consider them.

Police Report

A police report provides the following account of the same incident:

Glenn Ware states on 2.3.13 at 9:00pm he was at the gas station at 15th Ave and Clark Rd about to exit his vehicle when Gary School City Officer Michael Brown pulled up close to his vehicle. G. Ware states he told M. Brown that he was blocking the door and that he was handicap [sic].

G. Ware then states M. Brown ran up behind him and grabbed him by the back of his neck and then slammed him on the hood of his wife [sic] car, he then forced his head to the vehicle hood and stated to G. Ware not to talk to him like that. G. Ware states M. Brown then searched his vehicle without his or his wife [sic] permission and tossed items all around the vehicle.

G. Ware then states he asked M. Brown why he his [sic] violated civil rights, stated M. Brown told him to get in vehicle and leave.

(Def.'s Ex. 2 at 4, ECF No. 93-4).

Other Matters

Ware testified that he sent a tort claim form to GCSC 179 days after the incident. On August 2, 2013, the 180th day after the incident, delivery of Priority Mail items addressed to GCSC Legal Services and GCSC Superintendent of School was attempted. Tracking records show that no authorized recipient was available on that date, and notices were left. The items were delivered three days later on August 5, 2013.

Brown was hired as a reserve officer with the Gary Police Department on September 17, 2014. Brown had a second job with Lake County, Indiana.

ANALYSIS

In his Third Amended Complaint, Ware brings claims under 42 U.S.C. § 1983 for alleged used of excessive force and for retaliation for Ware's exercise of First Amendment rights against Brown and state law claims of intentional infliction of emotional distress and negligent infliction of emotional distress against Brown and GCSC. Ware also brings a claim of municipal liability under 42 U.S.C. §§ 1981, 1983 against GCSC, but Ware concedes in his response that he cannot show GCSC to be liable on this claim.

GCSC and Brown argue for summary judgment in their favor. They also assert that the Court lacks subject matter jurisdiction to hear this case and that Brown should be dismissed because Ware did not sue Brown in Brown's individual capacity. For the reasons stated below, the Court has subject matter jurisdiction, Ware has sued Brown in his individual capacity, and the motion is granted as to the claims brought against GCSC and the state law claims brought against Brown for actions within the scope of his employment and denied as to the remaining claims brought against Brown.

A. Subject Matter Jurisdiction

Defenda...