Austin v. Niblick, et al

Filing 49

OPINION AND ORDER DENYING 30 MOTION for Clarification filed by Jarren L Austin. Signed by Judge William C Lee on 4/21/2015. (cc: Pla)(lns)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION JARREN L. AUSTIN, Plaintiff, v. JOHN NIBLICK, Individually and in his Official Capacity, Defendant, CITY OF FORT WAYNE, Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 1:93cv217 OPINION AND ORDER This matter is before the court on a”Motion Requesting Extension of Time and Clarification on the Courts [sic] Judgment and Order Dated February 23, 1995", filed by the Plaintiff, Jarren L. Austin (“Austin”), on December 16, 2014. Austin is proceeding pro se. The City of Fort Wayne (“City”) filed a motion to intervene, which motion was granted on February 18, 2015. The City then filed a response to Austin’s motion on March 9, 2015, to which Austin replied on March 20, 2015. The City then filed a supplemental response on March 26, 2015. For the following reasons, Austin’s motion will be denied. Discussion On August 24, 1993, Austin, represented by Attorney Quinton Ellis, filed a Section 1983 action against Officer John Niblick and Other Unknown Officers, Individually and in Their Official Capacity. Austin alleged he was physically abused during an arrest the officers allegedly effectuated on August 25, 1991. Officer Niblick was no longer an officer with the Fort Wayne Police Department at the time the Complaint was filed. However, the City Attorney, J. Timothy McCauley, entered an appearance for the “Unknown Officers”. McCauley filed a motion to dismiss on behalf of the Unknown Officers. Austin then filed a Stipulation for Dismissal with Prejudice, which was granted on February 25, 1994. The Order stated that “the Court now dismisses the above-captioned cause of action, with prejudice, as to the City of Fort Wayne and the Defendants designated ‘Other Unknown Officers’”. Austin continued with his suit against Officer John Niblick. However, Niblick could not be found and Austin was unable to effectuate service of process. After receiving several extensions of time to effectuate service, and hiring a private investigator, Austin discovered only that Niblick was supposedly living “somewhere in Florida”. On April 20, 1995, Austin filed Proof of Publication with the court, indicating that on January 26, 1995, Austin had published a legal notice in The News-Sentinel, a daily newspaper of general circulation. Niblick never responded to Austin’s Complaint, and on July 27, 1995, Austin filed a motion for default and a motion for default judgment. On August 3, 1995, a Clerk’s Entry of Default was entered. On September 8, 1995, the undersigned held a default judgment hearing. Austin appeared at the hearing, represented by Attorney Ellis, and presented evidence of medical expenses and pain and suffering. On this same date, the court entered a default judgment in favor of Austin against defendant John Niblick, in the total amount of $16,998.36. On December 16, 2014, Austin, who had never been able to find Niblick and recover his judgment, filed the current Motion Requesting Extension of Time and Clarification of the Court’s Judgment and Order Dated February 23, 1995. As the court noted in an earlier order, 2 there is no Order dated February 23, 2995. Austin later filed a motion to correct, which was granted, stating that he is seeking clarification of the Judgment dated September 8, 1995, as well as the Order referenced therein, which is dated February 25, 1994. In his motion, Austin states that on July 23, 2014 he sent a demand to the City of Fort Wayne, asserting that the City of Fort Wayne, the Fort Wayne Police Department, and the City of Fort Wayne Risk Management Division are all responsible for paying the outstanding judgment because Niblick was sued in his official and individual capacity. Austin now requests $225,000.00, which represents his calculation of the initial judgment plus interest. On December 1, 2014, Attorney Malak Heiny, on behalf of the City of Fort Wayne, sent Austin a letter stating that “[t]he City is not responsible for payment of this judgment, as the City is not the named defendant. The judgment is solely against Officer John Niblick, in his individual capacity.” The parties have now fully briefed the motion for clarification. Austin argues that he “believes that his effort to collect payment from the city is warranted because officer Niblick caused injury to Austin while performing duties that fell within the scope of his employment, and were intended to further the business of the city of Fort Wayne police dept ...” Austin argues that Niblick’s use of force represents official policy of the Fort Wayne police department, and that the respondeat superior doctrine is applicable. Austin claims that “the use of force correctly applied is sanctioned, authorized the chief of police as a tool to assist in making arrest.” Austin further claims that he was unaware of the stipulation, filed February 25, 1994, to dismiss the City of Fort Wayne and “unknown officers” with prejudice. Lastly, Austin contends that the City failed to comply with a Fort Wayne Ordinance and an Indiana Statute regarding indemnification of a city employee. 3 Clearly, Austin’s respondeat superior claim fails. This case is before this court pursuant to Section 1983, and there is no basis for municipal liability under Monell v. Dept. of Social Serv., 436 U.S. 658 (1978). Austin’s attempt to show an unconstitutional policy or custom of the City falls woefully short. First, there is no allegation of any express policy of the City set forth in Austin’s Complaint. Secondly, at no time during the pendency of this case did Austin (and/or his attorney) develop any evidence to support a municipal liability claim. That leaves Austin with a single incident (his arrest), which cannot form the basis for municipal liability. Austin’s assertion that Attorney Ellis did not have consent to enter into the stipulation dismissing the City also fails. “It is well settled that an attorney, by virtue of the representation, becomes a powerful agent with a great deal of authority. Retention confers on an attorney the general implied authority to do on behalf of the client all acts in or out of court necessary or incidental to the prosecution or management of the suit or the accomplishment of the purpose for which the attorney was retained.” Koval v. Simon Telelect, Inc., 693 N.E.2d 1299, 1302 (Ind. 1998). As The City correctly notes, if Austin takes issue with Attorney Ellis’ representation of him, 20 years after the fact, that is a matter between them and does not provide a justification to hold the City liable for the default judgment rendered against Niblick. With respect to the indemnification argument, the City again correctly points out that the City Ordinance would come into play, if at all, on state law claims, not on claims under Section 1983. The Indiana Statute, Ind.Code 34-13-4-1, is the Civil Rights Claims Against Public Employees Act, and does not create a private right of action to sue a governmental entity, to compel the entity to pay a judgment entered against an employee. City of Muncie v. Peters, 709 N.E.2d 50, 56 (Ind. Ct. App. 1999). 4 Therefore, as there is no legal basis for holding the City of Fort Wayne liable for the default judgment entered against Niblick, Austin’s motion will be denied. Conclusion On the basis of the foregoing, Austin’s motion for clarification [DE 30] is hereby DENIED. Entered: April 21, 2015. s/ William C. Lee William C. Lee, Judge United States District Court 5

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