Martin v. Indiana State of et al
Filing
83
OPINION AND ORDER GRANTING IN PART and DENYING IN PART as outlined 72 RULE 56 MOTION to Strike Portions of Anthony Martin's Affidavit filed by Ft Wayne Police Dept, Fort Wayne City of, Officer Addison; GRANTING 65 MOTION for Summary Judgment filed by Ft Wayne Police Dept, Fort Wayne City of, Officer Addison. Clerk DIRECTED to enter judgment in favor of Dfts and against Pla. Signed by Magistrate Judge Susan L Collins on 8/17/2015. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANTHONY C. MARTIN,
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Plaintiff,
v.
STATE OF INDIANA, et al.,
Defendants.
Case No. 1:12-cv-69-SLC
OPINION AND ORDER
This action arises out of an incident in which Plaintiff Anthony Martin (“Martin”) alleges
that Fort Wayne Police Department officers stopped his vehicle without probable cause, used
excessive force against him, and unlawfully entered and searched his home. Before the Court is
a motion for summary judgment filed by the remaining Defendants in this case, Officer Addison,
the City of Fort Wayne, and the Fort Wayne Police Department (collectively, “Defendants”).
(DE 65). This motion has been extensively briefed by the parties. (DE 66, 69, 74, 76, 79, 80).
Also before the Court is Defendants’ motion to strike portions of Martin’s affidavit in support of
his response in opposition to Defendants’ motion for summary judgment (DE 72). This motion
has also been fully briefed. (DE 73, 77, 78).
These motions are now ripe for adjudication. Before addressing Defendants’ motion for
summary judgment (DE 65), the Court must first determine what evidence it may evaluate by
addressing Defendants’ motion to strike (DE 72) statements in Martin’s supporting affidavit to
his response in opposition to Defendants’ motion for summary judgment.
I. MOTION TO STRIKE
Defendants’ motion to strike portions of Martin’s affidavit (DE 72) will be GRANTED
IN PART and DENIED IN PART for the reasons addressed herein.
A. Legal Standard
Federal Rule of Civil Procedure 56 states that affidavits filed in support of summary
judgment “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). “An affidavit not in compliance with Rule 56 can neither lend support
to, nor defeat, a summary judgment motion.” Paniaguas v. Aldon Cos., No. 2:04-CV-468-PRC,
2006 WL 2568210, at *4 (N.D. Ind. Sept. 5, 2006) (citing Zayre Corp. v. S.M. & R. Co., 882
F.2d 1145, 1148-49 (7th Cir. 1989); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th
Cir. 1989)).
“[W]hen considering a motion to strike portions of an affidavit in support of a motion for
summary judgment, courts will only strike and disregard the improper portions of the affidavit
and allow all appropriate recitations of fact to stand.” Id.; see also Stromsen v. Aluma Shield
Indus., Inc., No. 89 C 5036, 1993 WL 34727, at *4 (N.D. Ill. Feb. 8, 1993); Toro Co. v. Krouse,
Kern & Co., 644 F. Supp. 986, 989 (N.D. Ind. 1986); 10B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2738 (3d ed.). Specifically, the following statements are
not properly included in an affidavit and should be disregarded: (1) conclusory allegations
lacking supporting evidence, see Young v. Monahan, 420 F. App’x 578, 583 (7th Cir. 2011); (2)
legal argument, see Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985); (3) inferences or opinions
not “grounded in observation or other first-hand experience,” Visser v. Packer Eng’g Assocs.,
Inc., 924 F.2d 655, 659 (7th Cir. 1991); (4) mere speculation or conjecture, see Stagman v. Ryan,
176 F.3d 986, 995 (7th Cir. 1999); and (5) statements in affidavits which blatantly contradict
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prior sworn testimony in an attempt to create sham issues of genuine dispute, see Beckel v. WalMart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002); Bank of Ill. v. Allied Signal Safety
Restraint Sys., 75 F.3d 1162, 1168-69 (7th Cir. 1996).
B. Discussion
Defendants seek to strike paragraphs 3, 4, and 6 of Martin’s affidavit (DE 69-1). In their
memorandum in support of their motion to strike, Defendants contend that “paragraphs 3, 4, and
6 of Anthony C. Martin’s affidavit should be stricken because they contradict Martin’s prior
sworn deposition testimony, are self-serving, are speculative, and are irrelevant.” (DE 73 at 1).
Defendants argue that these paragraphs of Martin’s affidavit contain direct contradictions with
his prior sworn deposition testimony regarding the location and duration of the alleged stop on
December 15, 2010, the number of officers involved, the specific officers involved, and how
Martin learned that police officers had gone to his home that day.
In response, Martin argues that the Court should deny Defendants’ motion to strike
because the statements in his affidavit that Defendants allege are contradictory are in fact noncontradictory, explainable, necessary, and permissible even where considered self-serving. (DE
77 at 2). Martin contends that he approximated the number of officers and the distance from his
house slightly differently on two separate occasions in his deposition and his affidavit. Martin
argues that any discrepancies between the statements in his affidavit and his prior deposition
testimony are “minor” and “explainable,” so the affidavit testimony in paragraph 3 should not be
precluded. (DE 77 at 2-3). Martin further argues that just because he stated in his deposition that
he did not know the officers before the incident does not mean he cannot identify Officer
Addison as having been involved after the incident, as he does in his deposition. Martin
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therefore argues that this statement in paragraph 4 is not contradictory and should not be stricken.
Martin argues that the mere fact a statement in an affidavit is self-serving does not preclude the
Court from considering it on summary judgment. Finally, Martin contends that his statements in
paragraph 6 about not having granted consent to the officers’ entry into his residence is “on its
face relevant” to his unlawful entry claim. Martin thus requests that the Court deny Defendants’
motion to strike, or in the alternative, that the Court deny in part the motion regarding the
admissible portions of paragraphs 3, 4, and 6.
In their reply brief, Defendants argue that Martin’s answers during his deposition
testimony were “unequivocal” and “unambiguous” regarding the number of officers involved, the
location of the incident, and whether he knew any of the officers; Defendants contend that “[i]t is
hard to believe that Martin remembered the alleged incident in specific detail nearly four years
later when his deposition was taken, but had to rely on estimates of the number of officers and
the location of the alleged traffic stop only seven months after his deposition was taken.” (DE 78
at 1). Defendants argue that “even if Martin did identify Officer Addison after or during the
incident, as plaintiff’s counsel suggests, Martin had ample opportunity to testify that Officer
Addison was present during the alleged traffic stop. Martin’s later testimony [by affidavit] that
he believed Officer Addison was one of the officers present at the alleged traffic stop is clearly
contradictory to his prior deposition testimony.” (DE 78 at 2). While Defendants appear to agree
that the mere fact a statement in an affidavit is self-serving does not mean the Court is precluded
from considering it on summary judgment, Defendants clarify that “[s]elf-serving statements in
an affidavit without factual support in the record should not be considered at the summary
judgment stage.” (DE 78 at 2-3 (citations omitted)). Defendants argue that whether or not they
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agree that Martin did not consent to entry or search of his residence does not matter, as his
statement that he did not give consent is still irrelevant because he was not at the house to give
consent, so the statement is not of consequence in the determination of any of the issues on
summary judgment and should therefore be stricken.
The Court will first address Defendants’ arguments that Martin’s affidavit statements
were clearly contradictory to his deposition testimony; the Court will then turn to Defendants’
arguments that Martin’s statements in his affidavit were self-serving and irrelevant.
1. Martin’s Affidavit Statements Are Not Sufficiently
Contradictory to Warrant Being Stricken
Under Federal Rule of Civil Procedure 56, summary judgment is proper only where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits . . . show that there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Williams v. Excel Foundry & Mach., Inc., 489 F.3d 309, 310 (7th Cir. 2007). Additionally, the
Seventh Circuit has held that district courts have great discretion in deciding whether to allow a
party to change damaging deposition testimony with a supplemental summary judgment
affidavit. Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 614 (7th Cir. 2002).
However, under the so-called “sham affidavit” rule, most courts will disregard affidavits
which blatantly contradict prior sworn testimony. Beckel, 301 F.3d at 624. “Affidavits, though
signed under oath by the affiant, are typically . . . written by the affiant’s lawyer, and when
offered to contradict the affiant’s deposition are so lacking in credibility as to be entitled to zero
weight in summary judgment proceedings unless the affiant gives a plausible explanation for the
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discrepancy.” Id. (citations omitted).
If parties were permitted to create sham issues of fact with affidavits contradicting their
prior depositions, “the very purpose of the summary judgment motion—to weed out unfounded
claims, specious denials, and sham defenses—would be severely undercut.” Bank of Ill., 75 F.3d
at 1168-69 (citations omitted). “This principal must be applied with great care,” however,
“because summary judgment is not a tool for deciding questions of credibility.” Castro v. DeVry
Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015) (citing Bank of Ill., 75 F.3d at 1169-70). It is
common for lay witnesses to have “at least occasional lapses of memory or needs for correction
or clarification,” and if the Court were to disregard “as a sham every correction of a memory
failure or variation in a witness’s testimony,” it would “usurp the trier of fact’s role in
determining which portion of the testimony was most accurate and reliable.” Id. (citing Tippens
v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir. 1986)). The Seventh Circuit has therefore
made it clear that “an affidavit can be excluded as a sham only where the witness has given ‘clear
answers to unambiguous questions which negate the existence of any genuine issue of material
fact.’” Id. (quoting Bank of Ill., 75 F.3d at 1170).
The issue here comes down to whether Martin’s deposition and affidavit
statements—regarding the location and duration of the alleged stop, the number of officers
involved, whether Martin could identify any of the specific officers involved, and how Martin
learned that police officers had gone to his home that day—are contradictory such that they
should be excluded from the Court’s consideration as to summary judgment. As discussed
above, in order to find that Martin’s statements should be excluded, the Court must find that his
affidavit testimony contradicts with “clear answers to unambiguous questions” asked during his
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deposition, where the deposition testimony “negate[s] the existence of any genuine issue of
material fact.” Id.
As to the location of the stop, Martin states in his affidavit that his “recollection” is that
he was stopped “before he returned, only a couple doors down from [his] home.” (DE 69-1 ¶ 3).
In contrast, when asked at his deposition “what route [had he taken] to get to the spot where [he
was] pulled over,” Martin testified that he had “pulled out [of his] backyard and proceeded like uh, Masterson is, the next street over is Barr. So once [he] came out the alley, it was like [he]
went down no more than like two or three streets.” (DE 71-2 at 4). Martin testified at his
deposition that at the time he was stopped by the officers, he was traveling south on Barr Street,
near Barr’s intersection with Butler or Dewald. (DE 71-2 at 4). But Martin also testified during
his deposition that the officers put him into a patrol car and took him to “the end of Masterson
and Barr” where he could “see towards the house” off towards his left, and he was only “a couple
houses” from his house. (DE 71-2 at 7).
This testimony appears to resolve the inconsistencies that Defendants allege exist
between Martin’s statements in his affidavit and his testimony at his deposition. Thus, the Court
does not conclude that Martin’s affidavit testimony regarding location should be excluded as
contradictory or a sham. Furthermore, even if the Court were to exclude this portion of Martin’s
affidavit regarding the location of the stop, it would not eliminate the genuine dispute of material
fact between Martin’s version of events and Defendants’ version of events. Were the Court to
exclude Martin’s statements in his affidavit regarding the location of the stop, Martin’s
deposition testimony would still stand. Thus Martin’s testimony about location during his
deposition—that the stop occurred on Barr Street near where it intersects with Butler and
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Dewald, and that the officers later took him in a patrol car to a location a couple houses down
from his house—would still cause a genuine issue of material fact to exist, given Defendants’
contention that Fort Wayne Police officers did not stop Martin at any location on the date in
question.
As to the duration of the alleged stop, Martin states in his affidavit that he was
handcuffed and not permitted to leave for “about an hour” before the officers removed the
handcuffs and allowed him to leave. (DE 69-1 ¶ 3). During his deposition, Martin was asked
“how long [was he] sitting in the police car then right by Masterson, by the house?” (DE 71-2 at
8). Martin responded that it was “around about twenty minutes.” (DE 71-2 at 8). Martin then
was asked “[h]ow long [he thought] the incident where they pulled [him] over lasted,” and
Martin answered that it was “[f]ifteen, twenty minutes.” (DE 71-2 at 8-9).
The questions asked by defense counsel during Martin’s deposition were ambiguous and
open to interpretation, particularly given Martin’s answers to the questions. The first question
appears to focus on the time Martin spent specifically in the police car once it had moved him
closer to his house, and the second question asks how long the incident in which he was pulled
over lasted. Martin gave a shorter time in his answer to the second question, which creates an
inference that his answer of 15-20 minutes was with regard to the length of the stop prior to him
being moved closer to his house in the patrol car, where he sat for 20 minutes. Defense counsel
did not ask how long his entire encounter with the police officers lasted. Martin’s affidavit
statement that he sat in the back of a patrol car, while handcuffed, for “about an hour” does
appear to be inconsistent with his deposition testimony that he sat in the police car for “around
about twenty minutes,” but this inconsistent statement does not appear to be a “sham” statement
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made to create a dispute of material fact. Even if Martin’s affidavit statement regarding the
duration he was in the patrol car was excluded by the Court, a genuine issue of material fact
would still exist, because Martin’s deposition testimony regarding the length of the incident is
entirely different from Defendants’ affidavits that they had no interaction with Martin on the date
in question.
Regarding the number of officers involved, Martin states in his affidavit that “[a]bout five
or six officers surrounded my car and ordered me out.” (DE 69-1 ¶ 3). Martin, however, also
states in his affidavit a description of the officers he remembered, specifically that there was one
black male officer, a blond female officer, and “at least two white male officers.” (DE 69-1 ¶ 4).
In his deposition, Martin was asked how many officers approached his vehicle, and he answered
“four.”
Defendants argue that “[i]t is hard to believe that Martin remembered the alleged incident
in specific detail nearly four years later when his deposition was taken,” when he gave an
“unequivocal [answer] regarding the number of officers present”—“[f]our,”—“but had to rely [in
his affidavit] on estimates of the number of officers . . . only seven months after his deposition
was taken.” (DE 78 at 1). However, Martin’s statements in his affidavit as to the number of
officers involved are not sufficiently inconsistent with his prior deposition testimony to merit
striking these statements in the affidavit. See Patton v. MFS/Sun Life Fin. Distribs., Inc., 480
F.3d 478, 488 (7th Cir. 2007) (noting that changes in testimony are plausible in a “number of
scenarios” and stating that “a court must examine the particular circumstances of a change in
testimony to see whether it is plainly incredible or merely creates a credibility issue for the
jury”); see also Dore v. Five Lakes Agency, Inc., No. 14 CV 6515, 2015 WL 4113203, at *3
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(N.D. Ill. July 8, 2015) (citing Castro, 786 F.3d at 571); Ruiz v. Serco, Inc., No. 10-cv-394-bbc,
2011 WL 7138732, at *4 (W.D. Wis. Aug. 5, 2011) (citing Patton, 480 F.3d at 488). Here, there
is a slight inconsistency between Martin’s affidavit and his prior deposition testimony, but his
statements regarding the number of officers involved do not reach the level of “plainly
incredible” required for exclusion. To the extent that Martin’s affidavit is seen as deviating from
what he said during his deposition, that is a credibility issue for a jury to decide. See Patton, 480
F.3d at 488.
As to whether Martin could identify any of the officers involved in the incident, he states
in his affidavit that “[t]he officers [he] remember[s] seeing present during this incident included
a black/ African-American male, at least two white male officers, and a blond female officer.
[He] believe[s] Officer Addison was one of these officers.” (DE 69-1 ¶ 4). Martin explains that
“[o]f the two white male officers, one was tall, and the other was shorter and stocky. This was
the officer that [Martin] remember[s] pulled [him] from the car, and [that officer] participated in
the other force that was used on [Martin].” (DE 69-1 ¶ 4). Martin further states that “[t]he same
officer also was present when [Martin] was held in the police squad car, in handcuffs, against his
will.” (DE 69-1 ¶ 4). In his deposition testimony, Martin was asked how many officers
approached his vehicle, and he responded, “four.” (DE 71-2 at 5-6). Martin was asked if they
were all male officers, and he responded, “yeah.” (DE 71-2 at 6). Martin was then asked if he
knew any of these officers before the incident, and Martin replied, “not before this incident.”
(DE 71-2 at 6). When he was asked whether any of the officers looked familiar to him, he
replied, “no.” (DE 71-2 at 6).
Defendants argue that Martin stated “very clearly in his deposition that all of the officers
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were male and that Martin did not know or recognize any of the officers that allegedly stopped
his vehicle on December 15, 2010.” (DE 73 at 5). Defendants argue that Martin’s later
“identification of Officer Addison in his affidavit is a clear attempt to create an issue of fact as to
Officer Addison’s presence at the scene of the alleged traffic stop.” (DE 7 at 5). Defendants thus
contend that Martin’s identification of Officer Addison in his affidavit is a sham and should be
stricken, because they argue that Martin is attempting to create a genuine issue of fact by
submitting an affidavit that contradicts plain admissions during his prior sworn deposition
testimony. In his response, Martin argues that his identification of Officer Addison in his
affidavit is not contradictory with his deposition testimony that he did not know the officers
“before the incident.” (DE 77 at 3). Martin argues that his affidavit and deposition testimony are
not mutually exclusive, and should therefore not be stricken. (DE 77 at 3). In their reply brief,
Defendants contend that Martin had the opportunity to testify at his deposition to identify Officer
Addison as one of the officers who participated in the alleged traffic stop, but he failed to do so.
Defendants place emphasis on Martin’s response that he could not recall anything else about the
incident that he had not already mentioned, when he was asked during his deposition. (DE 78 at
2). Defendants therefore argue that “Martin’s later testimony that he believed Officer Addison
was one of the officers present at the alleged traffic stop is clearly contradictory to his prior
deposition testimony [and therefore] should be stricken from paragraphs 3 and 4 of Martin’s
affidavit.” (DE 78 at 2).
It does appear that Martin’s affidavit identification of Officer Addison is contradictory
with his prior deposition testimony that he did not know any of the officers when the incident
occurred. Even where a subsequent affidavit is contradictory to prior sworn deposition
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testimony, however, a court may accept the statement in the affidavit if the party presents a
suitable explanation for the discrepancy, such as “a confusing deposition question, circumstances
indicating a lapse of memory, relevant new information discovered after the original testimony,
or ambiguous or incomplete earlier testimony.” Patton, 480 F.3d at 488 (citations omitted). See
also Commercial Underwriters Ins. Co. v. Aires Envtl. Servs., Ltd., 259 F.3d 792, 799 (7th Cir.
2001) (citing Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999)). Here, Martin states
that “after or during the incident,” he “may have identified Defendant Addison in any number of
ways such as by badge, verbal statement, or inquiry.” (DE 77 at 3). The Court agrees that
Martin may have later learned the identity of an officer involved in the incident to be Officer
Addison. Whether Martin’s identification of Officer Addison as an involved officer is credible is
a matter for the jury to decide, not the Court.
Finally, with regard to how Martin learned that police officers had gone to his home on
the date in question, Martin states in his affidavit that he “learned from [his] then-girlfriend
Amanda Del[e]grange that police officers had gone to [their] home shortly after [he] had left it
that day.” (DE 69-1 ¶ 6). In contrast, during his deposition, Martin stated that the officers had
taken him to “the end of Masterson and Barr,” “[a]bout a couple houses” from his home, and he
“noticed a lot of other officers [were] at the residence by then.” (DE 71-2 at 7). While
Defendants argue that Martin’s statement in his affidavit is contradictory with his deposition
testimony regarding how he learned that officers had gone to his house on December 15, 2010,
the Court does not agree. Martin may have both seen the police officers at his home from his
location inside the patrol car and have been informed by Ms. Delegrange that officers had come
to their home shortly after Martin had left it. These statements do not contradict each other, and
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therefore the Court will not strike them as contradictory.
Thus, to the extent that Martin’s affidavit statements contradict his prior deposition
testimony, such statements will not be stricken under the “sham rule” because they do not rise to
the level of plainly incredible. Rather, any such inconsistencies are issues of credibility to be
determined by the jury. For these reasons, Defendants’ motion to strike will be DENIED with
respect to Martin’s affidavit statements that Defendants argue are contradictory to Martin’s prior
deposition testimony.
2. Martin’s Affidavit Statement Regarding Officer Addison
Will Be Stricken Because It Fails to Meet the Personal
Knowledge Requirement, Not Because It Is Self-Serving
“Deposition testimony, affidavits, responses to interrogatories, and other written
statements by their nature are self-serving.” Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir.
2013). Thus, the Seventh Circuit Court of Appeals has made it clear that, “as [it] has repeatedly
emphasized over the past decade, the term ‘self[-]serving’ must not be used to denigrate perfectly
admissible evidence through which a party tries to present its side of the story at summary
judgment.” Id. (overruling cases that suggested a plaintiff may not rely upon self-serving
evidence to create a material factual dispute). “It is not the self-serving nature of [a]n affidavit[]”
that makes it inadmissible, but rather it is because the affidavit is “not based on personal
knowledge as required by both the Federal Rule of Civil Procedure on summary judgment, Rule
56(e) [(now Rule 56(c)(4))] (‘supporting and opposing affidavits shall be made on personal
knowledge’), and by Federal Rule of Evidence 602 (‘A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal knowledge of
the matter.’).” Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (noting that each party’s
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testimony is inherently self-serving); see also Wilson v. McRae’s, Inc., 413 F.3d 692, 694 (7th
Cir. 2005); Dalton v. Battaglia, 402 F.3d 729, 735 (7th Cir. 2005). “[A] self-serving affidavit
supported by facts in the record could defeat summary judgment.” Buie v. Quad/Graphics, Inc.,
366 F.3d 496, 504 (7th Cir. 2004) (citing Payne, 337 F.3d at 773). “The record, moreover, may
include the self-serving affidavit itself, provided that the affidavit ‘meets the usual requirements
for evidence on summary judgment—including the requirements that it be based on personal
knowledge and that it set forth specific facts showing that there was a genuine issue for trial.’”
Id. (quoting Payne, 337 F.3d at 773).
Here, Defendants contend that Martin’s statement in paragraph 4—that he “believe[s]
Officer Addison was one of these officers” (DE 69-1 ¶ 4)—should be stricken because it is selfserving and without factual support in the record. (DE 73 at 6). Defendants further contend that
the statement should be stricken because it is vague and speculative. (DE 73 at 6). Martin, in his
response, contends that Defendants attack his affidavit statement as self-serving without any
explanation. (DE 77 at 4). Martin also argues that the mere fact an affidavit is self-serving does
not require the Court to disregard it on summary judgment. (DE 77 at 4). In their reply brief,
Defendants agree that an affidavit is not precluded from consideration merely because it is selfserving, but Defendants emphasize that the Court should not consider self-serving affidavits
without factual support in the record. (DE 78 at 2).
Here, the Court must determine whether Martin’s affidavit statement—that he “believe[s]
Officer Addison was one of these officers” (DE 69-1 ¶ 4)—should be considered for purposes of
summary judgment, by looking to whether “it meets the requirements of evidence on summary
judgment,” Buie, 336 F.3d at 506 (citing Payne, 337 F.3d at 773). Rule 56(c) governs affidavits
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in support of summary judgment motions, and it requires that “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4).
The Seventh Circuit, as well as district courts in this circuit, have found that affidavits
which state facts on belief cannot be considered in determining whether there is a genuine issue
of material fact because they do not satisfy the requirement of personal knowledge. See, e.g.,
Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994) (citing Powers v. Dole, 782 F.2d 689,
695 (7th Cir. 1986)) (“Statements of ‘beliefs’ or ‘opinions’ are insufficient to create a genuine
issue of material fact.”). The “requirement of personal knowledge is mandatory. Ultimate or
conclusory facts and conclusions of law, as well as statements made on belief or ‘on information
and belief’ cannot be utilized on a summary judgment motion.” Toro Co. v. Krouse, Kern & Co.,
827 F.2d 155, 162 n.3 (7th Cir. 1987) (discussing Fed. R. Civ. P. 56(e), which is now Fed. R.
Civ. P. 56(c)(4)); see also United States v. Crispen, 622 F. Supp. 75, 81 (N.D. Ill. 1985)
(citations omitted) (“Statements in affidavits made upon information and belief may, of course,
be disregarded as not meeting the personal knowledge requirement.”); In re KJK Constr. Co.,
414 B.R. 416, 429 (Bankr. N.D. Ill. 2009) (citations omitted) (“It is the affiant’s personal
knowledge, and not his beliefs, opinions, rumors, or speculation, that is admissible at trial and
the proper subject of any affidavit.”). “Affidavits based on ‘information and belief’—facts that
the affiant believes are true, but which the affiant does not know are true—are not proper.”
Abdullah v. Frank, No. 04C1181, 2007 WL 636185, at *5 (E.D. Wis. Feb. 26, 2007) (citing Toro
Co. v. Krouse, Kern & Co., 827 F.2d 155, 162-63 (7th Cir. 1987); Friedel v. City of Madison,
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832 F.2d 965, 970 (7th Cir. 1987)); see also Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir.
2000) (finding that portions of an affidavit which “merely asserted various facts ‘on information
and belief’ . . . [did not] satisfy the personal knowledge requirement for affidavits”).
Martin’s statement in his affidavit that he “believe[s] Officer Addison was one of these
officers” (DE 69-1 ¶ 4) is not based upon his personal knowledge, and the Court must therefore
disregard this portion of Martin’s affidavit because it does not comply with the requirements of
Rule 56(c)(4). The Court is not weighing the evidence with regard to this statement; but rather,
the Court is disregarding it entirely because it fails to meet the personal knowledge requirement.
Accordingly, Defendants’ motion to strike will be GRANTED with respect to Martin’s statement
in paragraph 4 that he “believe[s] Officer Addison was one of these officers” (DE 69-1 ¶ 4) on
the basis that it is not based on Martin’s personal knowledge.
3. Martin’s Affidavit Statement Regarding Consent
Will Be Stricken As Irrelevant
“Evidence is relevant if: (a) it has any tenancy to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.”
Fed. R. Evid. 401. All relevant evidence is admissible, with certain exceptions, and evidence
that is not relevant is not admissible. Fed. R. Evid. 402; see also Baugh v. City of Milwaukee,
823 F. Supp. 1452, 1458 (E.D. Wis. 1993) (“All relevant evidence is admissible, and the
standard for relevance is quite low. It merely requires that the evidence ‘have a tendency to make
the existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.’” (citing Fed. R. Evidence 401 & 402)).
“[A]n affidavit should be excluded only when its irrelevance is clear.” Lyons Sav. and Loan
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Ass’n v. Geode Co., 641 F. Supp. 1313, 1318 (N.D. Ill. 1986) (citing 10A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2738 (1983)). “[T]he relevance of an
affidavit should be tested on the basis of the issues presented in the motion.” 10A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (3d ed.).
Here, Defendants argue that Martin’s statement in paragraph 6 of his affidavit—that he
never gave consent for officers to search his home on December 15, 2010—is irrelevant to the
pending motion for summary judgment, as it is “undisputed that Martin was not present at his
home at 214 East Masterson when the Fort Wayne Police arrived.” (DE 73 at 7). Defendants
contend that “Martin could not have given consent for entry or search of the residence unless he
were present,” and that “[i]t does not even matter if Martin gave consent,” as “Martin’s
girlfriend, Amanda Delegrange, lived at the residence and did not object to the officers’ presence
at the residence.” (DE 73 at 7). Defendants therefore argue that this statement should be stricken
from paragraph 6 because it is not of consequence to the determination of any of the issues on
summary judgment. (DE 73 at 7).
In response, Martin contends that he “does not agree” that his statement regarding never
having given consent is irrelevant. (DE 77 at 4). Martin states that “[r]ather, that both
Defendants and Plaintiff agree that Plaintiff did not consent to Defendant Addison’s entry into
his residence is on its face relevant to Plaintiff’s unlawful entry claim.” (DE 77 at 4). In their
reply brief, Defendants argue that Martin’s response “misses the point,” because whether
Defendants agree that Martin did not consent to any search “does not matter,” as the statement
“is irrelevant because Martin was not present to give consent.” (DE 78 at 3).
While Martin contends that this statement is relevant “on its face” to his unlawful entry
17
claim (DE 77 at 4), Martin fails to provide any explanation, argument, or citation to authority in
support of his contention. Furthermore, Martin fails to identify any fact of consequence this
statement tends to make more or less probable. The Court agrees with Defendants that Martin’s
statement is completely irrelevant to his unlawful entry claim or any other matter at issue in the
summary judgment motion. Martin’s affidavit statement that he did not give permission to the
officers to search the residence does not tend to make it more or less probable that the officers
unlawfully entered or searched his home, because both parties have agreed that Martin was not
present at the house when the officers were there. For these reasons, Defendants’ motion to
strike will be GRANTED with regard to Martin’s affidavit statement in paragraph 6 that he did
not “give permission to any police officer to enter or to search [his] home” (DE 69-1 ¶ 6) on
December 15, 2010.
C. Conclusion
Accordingly, for the reasons explained in detail above, Defendants’ motion to strike
portions of Martin’s affidavit (DE 72) is GRANTED IN PART and DENIED IN PART as
follows:
1.
Defendants’ motion to strike is GRANTED with respect to
Martin’s statement in paragraph 4 of his affidavit that he
“believe[s] Officer Addison was one of these officers.”
(DE 69-1 ¶ 4);
2.
Defendants’ motion to strike is GRANTED with respect to
Martin’s statement in paragraph 6 of his affidavit that “[a]t
no time during December 15, 2010 did [he] ever give
permission to any police officer to enter or to search [his]
home.” (DE 69-1 ¶ 6); and
3.
Defendants’ motion to strike is DENIED with respect to
Martin’s affidavit statements that Defendants contend are
18
contradictory to Martin’s prior sworn deposition testimony.
The Court will not consider these stricken portions of Martin’s affidavit when evaluating
Defendants’ motion for summary judgment.
II. MOTION FOR SUMMARY JUDGMENT
Defendants’ motion for summary judgment (DE 65) will be GRANTED for the reasons
that follow.
A. Legal Standard
On a motion for summary judgment, “[t]he 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). Summary judgment may be granted only
if there are no disputed genuine issues of material fact. Payne, 337 F.3d at 770. When ruling on
a motion for summary judgment, a court “may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Id.
The only task in ruling on a motion for summary judgment is “to decide, based on the evidence
of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
If the evidence is such that a reasonable factfinder could return a verdict in favor of the
nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770 (citation
omitted). A court must construe the record in the light most favorable to the nonmoving party
and avoid “the temptation to decide which party’s version of the facts is more likely true[,]” as
“summary judgment cannot be used to resolve swearing contests between litigants.” Id. (citation
omitted). However, “a party opposing summary judgment may not rest on the pleadings, but
19
must affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. at 771
(citing Celotex Corp., 477 U.S. at 324).
B. Facts and Background
In Martin’s complaint, which he filed pro se prior to his current counsel’s appointment by
the Court, he alleges that on December 15, 2010, several police officers with the Fort Wayne
Police Department entered his home illegally without a warrant, and he alleges that officers used
excessive force against him. In their respective filings, Martin and Defendants present
completely different versions of what took place on December 15, 2010. In their statement of the
facts, Defendants take the position that “Fort Wayne police officers had no contact with Anthony
Martin on December 15, 2010.” (DE 66 at 3 (citing DE 65-1 ¶ 3)). Defendants have supported
their position with various affidavits and departmental records. (DE 65-1 to 65-4). Martin, in his
response brief, tells a very different story through his affidavit. (DE 70; DE 69-1). And while
Martin’s version of what happened is completely different from Defendants’ version, the Court
must construe the facts most favorably to Martin, as he is the non-moving party in this summary
judgment motion.
In his affidavit,1 Martin describes what took place on December 15, 2010. (DE 69-1). He
states that he was living at 214 East Masterson in Fort Wayne, Indiana, with his then-girlfriend,
Amanda Delegrange.2 (DE 69-1 ¶ 2). During an argument that he and Ms. Delegrange were
1
The portions of Martin’s affidavit which were stricken by the Court’s ruling on
Defendants’ motion to strike will not be considered as part of the facts for purposes of summary
judgment.
2
Martin’s affidavit contains two different spellings of the last name of his former
girlfriend. For consistency, the Court will use the first spelling and refer to her as Ms.
Delegrange.
20
having that night, she snatched a phone from his hand, and her lip was injured and began to
bleed. (DE 69-1 ¶ 2). Martin left the house while Ms. Delegrange went upstairs to clean herself
up. (DE 69-1 ¶ 2).
Soon after this, at approximately 8:48 a.m., several Fort Wayne Police Department
officers, including Officer Addison, were dispatched to the residence to investigate a “domestic
in progress.” (DE 65-2 ¶ 3). A 911 call had been placed by one of Ms. Delegrange’s children to
report that “mom and dad are fighting and mom is bleeding.” (DE 65-2 ¶¶ 3, 7). When Officer
Addison arrived at the residence, the front door was open, but the screen door was closed, so he
knocked and announced “Fort Wayne Police.” (DE 65-2 ¶ 4). Officer Addison did not receive
any response, so he entered the house “to make sure everyone was okay since this was a domestic
in progress call.” (DE 65-2 ¶ 4). Officer Addison found Ms. Delegrange, who came into the
house from the backyard. (DE 65-2 ¶ 4). Ms. Delegrange was crying and packing some
clothing. (DE 65-2 ¶ 4). She informed Officer Addison that she had been in a fight with her
boyfriend, Martin, who had hit her in the face. (DE 65-2 ¶¶ 4-5). Ms. Delegrange willingly
spoke to Officer Addison and did not ask him or the other officers to leave at any time. (DE 65-2
¶ 4). Officer Addison took photographs of the injuries to Ms. Delegrange’s face. (DE 65-2 ¶ 6).
Martin was not at the house when Officer Addison and the other officers arrived. (DE 65-2 ¶ 8).
Officer Addison and the officers did not search the house. (DE 65-2 ¶ 10). Officer Addison did
not conduct a traffic stop of Martin on December 15, 2010, or on any other date; he did not arrest
Martin on December 15, 2010, or on any other date; and he did not have any contact with Martin
on December 15, 2010. (DE 65-2 ¶¶ 8, 11).
Martin states in his affidavit that it is his “recollection” that when he was almost home,
21
his vehicle was stopped by five or six Fort Wayne Police Department officers, who “surrounded
[his] car and ordered [him] out.” (DE 69-1 ¶ 3). “When [his] car door was opened, [he] was
snatched out, slammed to the ground face down, and handcuffed roughly, with a lot of pressure
pressed down on [his] wrists and upper arms, causing [him] pain.” (DE 69-1 ¶ 3). The officers
also put pressure on his neck and throat, which made him feel like he was choking. (DE 69-1 ¶
3). Martin complied with the officers, as he did not try to fight, struggle, run, or threaten any of
the officers. (DE 69-1 ¶ 5). The officers put Martin in the back of a patrol car, and he was not
allowed to leave. (DE 69-1 ¶ 3). After about an hour, the officers removed Martin’s handcuffs
and allowed him to leave, but they told him they would take him to jail if he went home. (DE
69-1 ¶ 3). Martin later learned from Ms. Delegrange that officers had come to their home shortly
after Martin had left. (DE 69-1 ¶ 6).
As a result of this incident, Martin filed the instant lawsuit against a lengthy list of
defendants. (DE 1). After the Court granted a motion to dismiss (DE 21; DE 14), the remaining
Defendants in this case are Officer Addison, the City of Fort Wayne, and the Fort Wayne Police
Department, who have file the instant motion for summary judgment.
In his complaint, Martin alleges that Officer Addison violated his constitutional rights by
entering his home without a warrant, by detaining him while using excessive force, by subjecting
him to cruel and unusual punishment, and by failing to intervene when other officers violated his
constitutional rights. (DE 1 at 3-4). Martin also alleges that the City of Fort Wayne and the Fort
Wayne Police Department are responsible for these acts. (DE 1 at 3-4). Additionally, Martin
alleges that Defendants are liable for state law claims of harassment, threats, malicious
prosecution, intimidation, defamation, retaliation, and causing mental anguish. (DE 1 at 3-4).
22
C. Discussion
Defendants argue that they should be granted summary judgment on each of Martin’s
claims against them. (DE 66 at 6). In Martin’s response to Defendants’ motion, he states that he
will not be proceeding on any claims against the Fort Wayne Police Department. (DE 70 at 2).
Martin further states that he will only be proceeding with state law claims against the City of Fort
Wayne. (DE 70 at 2). Additionally, Martin states that he will only be proceeding further with
the state law claims against the City of Fort Wayne and Officer Addison that “are not exempt
from the law enforcement immunity provisions listed under the Indiana Tort Claims Act,”
specifically his claims of harassment, malicious prosecution, retaliation, and intimidation. (DE
70 at 2-3). Martin states that he will not be proceeding with any claims under the First
Amendment. (DE 70 at 3). Martin also states that he will not be proceeding with his claims of
cruel and unusual punishment under the Eighth Amendment. (DE 70 at 14).
Martin states that he will be proceeding with his federal claim against Officer Addison for
excessive force; his federal claim against Officer Addison for the unlawful entry and search of
his home; his federal claim against Officer Addison for failure to intervene; his state tort claim of
false arrest against Officer Addison and the City of Fort Wayne; and his state tort battery claim
against the City of Fort Wayne based upon Officer Addison’s and the other officers’ use of
excessive force. (DE 70 at 2).
The Court need not address further the claims on which Martin has stated he is no longer
proceeding; Defendants’ motion for summary judgment will be GRANTED as to these claims.
The Court will address each of Martin’s remaining claims against Defendants as follows.
23
1. Martin’s Excessive Force Claim
Against Officer Addison
Martin is proceeding with his excessive force claim under § 1983 and the Fourth
Amendment against Officer Addison, which stems from the incident in which his vehicle was
stopped on December 15, 2010. (DE 1 at 3; DE 70 at 7-10). “While the right to make an arrest
or investigatory stop necessarily carries with it the right to use some degree of physicial coercion
or threat thereof to effect it, the Fourth Amendment prohibits the use of excessive force during
the execution of a seizure.” Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000)
(citations and internal quotation marks omitted). The constitutional measure of an officer’s use
of force under the Fourth Amendment is whether the officer’s actions were “objectively
reasonable in light of the facts and circumstances confronting [him] . . . .” Graham v. Connor,
490 U.S. 386, 397 (1989) (citations and internal quotation marks omitted). “Determining
whether the force used to effect a particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal quotation marks omitted).
Here, the facts would not allow a reasonable jury to find that Officer Addison used
excessive force against Martin in violation of his Fourth Amendment rights. Martin has
presented no evidence that Officer Addison was present during the stop of his vehicle by police
officers on December 15, 2010.3 While Martin does allege in his complaint that Officer
3
While Martin’s affidavit included a statement that he “believe[s] Officer Addison was
one of these officers” who were present during the incident (DE 69-1 ¶ 4), this statement was
stricken by the Court (see Part I (B)(2) above) because it did not meet the standard for evidence
on summary judgment under Federal Rule of Civil Procedure 56(c).
24
Addison, along with other unknown officers, acted with excessive force against him, Martin
cannot rest on the allegations in his complaint to avoid summary judgment. See Omnicare, Inc.
v. UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011)(stating that the plaintiff “cannot
merely rest on its pleadings; it must affirmatively demonstrate, by producing evidence that is
more than ‘merely colorable,’ that there is a genuine issue for trial.” (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986))); Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th
Cir. 1996) (“If the nonmoving party bears the burden of proof on an issue, he must then go
beyond the pleadings and affirmatively demonstrate a genuine issue of material fact for trial.”).
There is no evidence that would enable a reasonable jury to find that Officer Addison used
excessive force against Martin on December 15, 2010. Thus, Defendants are entitled to
judgment as a matter of law on this claim, and their motion for summary judgment will be
GRANTED with respect to Martin’s claim of excessive force against Officer Addison.
2. Martin’s Unlawful Entry and Search
Claim Against Officer Addison
Next, Martin is proceeding with his claim under § 1983 and the Fourth Amendment
against Officer Addison for the unlawful entry and search of Martin’s home. The Fourth
Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.
IV. “A warrantless search or seizure is “per se unreasonable unless the police can show that it
falls within one of a carefully defined set of exceptions based on the presence of ‘exigent
25
circumstances’”, United States v. Bennett, 908 F.2d 189, 192 (7th Cir. 1990) (quoting Coolidge
v. New Hampshire, 403 U.S. 443, 474-75 (1971)), or another exception to the warrant
requirement, such as consent, see, e.g., United States v. Jackson, 598 F.3d 340, 346 (7th Cir.
2010) (“A well-recognized exception to the warrant requirement applies, however, when
someone consents to a search.”).
Under the exigent circumstances doctrine, “[t]he Fourth Amendment does not bar police
officers from making warrantless entries and searches when they reasonably believe a person
within is in need of immediate aid.” United States v. Richardson, 208 F.3d 626, 629 (7th Cir.
2000) (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)) (internal quotation marks omitted).
The Seventh Circuit “has found that exigent circumstances justified a warrantless search where
the police reasonably feared for the safety of someone inside the premises,” but “a police
officer’s subjective belief that exigent circumstances exist is insufficient to make a warrantless
search.” Id. (citations omitted). The test is an objective one, not a subjective one: “the
government must establish that the circumstances as they appeared at the moment of entry would
lead a reasonable, experienced law enforcement officer to believe that someone inside the house,
apartment, or hotel room required immediate assistance.” Id. (quoting United States v. Arch, 7
F.3d 1300, 1304 (7th Cir. 1993)) (internal quotation marks omitted).
Here, Defendants argue that they are entitled to summary judgment on Martin’s unlawful
entry and search claim against Officer Addison because they contend that exigent circumstances
existed to enter the residence, Ms. Delegrange consented to the officers’ entry, and none of the
officers searched the residence. (DE 66 at 9-11). Defendants argue that Officer Addison’s entry
into the residence was justified by exigent circumstances because the 911 call reporting the
26
domestic disturbance gave the officer reason to believe that someone inside the home was in
danger. (DE 6 at 9-10). Additionally, Defendants argue that the officers’ entry was proper even
if exigent circumstances did not exist, because they content that Ms. Delegrange implicitly
consented to the officers’ entry by freely speaking to them and not asking them to leave. (DE 66
at 10). Finally, Defendants state that there was no actual search of the residence by officers. (DE
66 at 11).
In response, Martin argues that he did not give consent for officers to enter his home, and
he states that “it is undisputed that [Officer] Addison entered the home without permission from
Ms. Del[e]grange.” (DE 70 at 10). Martin contends that Ms. Delegrange was not even in the
house when Officer Addison entered, but rather was in the backyard, and therefore she could not
have consented to his entry into the home. (DE 70 at 10-11). Martin further argues that Ms.
Delegrange’s willingness to speak with officers after they entered the home did not “evidence
any ‘consent’” after the entry had already occurred. (DE 70 at 11). Martin contends that Ms.
Delegrange was likely intimidated by the four officers in uniform, who were already in her home
without permission, and therefore was afraid to order them out. (DE 70 at 11). Additionally,
Martin argues that exigent circumstances did not exist to justify the entry into the home by
Officer Addison because he states that “[Officer] Addison was not in hot pursuit of anyone, there
was no danger of destruction of evidence, . . . [Officer] Addison’s entry had nothing to do with
trying to prevent anyone’s escape,” and “he had no reason to believe anyone inside was in
immediate danger of harm” as Officer Addison “saw nothing out of the ordinary inside and heard
nothing out of the ordinary” as there was “no evidence of physical altercation inside, no sounds
of fighting or even arguing, and no yells for help.” (DE 70 at 12). Martin therefore contends that
27
because there was no consent or exigent circumstances to justify Officer Addison’s entry into the
home, the entry was an unlawful violation of his Fourth Amendment rights. (DE 70 at 12).
Martin also argues in his response that any search made by Officer Addison or the other
officers after their entry into the home was also a violation of his Fourth Amendment rights,
because no one gave them consent to search the home, and there was “no need to perform a
protective sweep of the home,” because Martin “had already left the home, Del[e]grange was in
the backyard, and there was no evidence that any disturbance was occurring in the home upon
[Officer] Addison’s arrival.” (DE 70 at 13).
In their reply brief, Defendants contend that Martin’s arguments that Ms. Delegrange
consented to Officer Addison’s and the other officers’ continued presence in the house due to
intimidation and the inherent coercion of the interview “is pure speculation” without citation to
legal authority. (DE 74 at 3-4). Defendants note that Martin has not provided an affidavit from
Ms. Delegrange to show that she felt coerced by the officers, and the only evidence in the record
is Officer Addison’s sworn affidavit statement that Ms. Delegrange spoke to him willingly. (DE
74 at 4). Defendants also argue that Ms. Delegrange was capable of consenting to the officers’
presence in the house because she possessed common authority over the shared residence. (DE
74 at 6). Defendants further argue that Officer Addison’s entry into the home was reasonable
because exigent circumstances existed, given the 911 call by a child reporting that her parents
were fighting and her mother was bleeding. (DE 74 at 4). Defendants argue that the fact that
there was no yelling or screaming when Officer Addison arrived to the house is not
determinative, because “[n]o noi[s]e or sounds can be a worse situation.” (DE 74 at 5). Finally,
Defendants argue that while “Officer Addison’s sworn testimony indicates that there was no
28
search of the home by him or any other Fort Wayne police officer,” “Martin has not designated
any evidence showing a genuine issue of material fact as to whether a search was performed.”
(DE 74 at 6).
In Martin’s surresponse in opposition to Defendants’ reply brief, Martin reiterates his
arguments and states that “[g]enuine issues of material fact remain regarding [his] claims of
unlawful entry and search.” (DE 76 at 2). In Defendants’ surreply brief, they also reiterate their
previously made arguments and contend that they are entitled to summary judgment on the
unlawful search and unlawful entry claims because Martin has submitted no admissible evidence
to contradict the evidence submitted by Defendants, which shows that there were exigent
circumstances to enter the residence and that Ms. Delegrange consented to the officers’ presence
in the residence. (DE 79 at 2).
First, the Court will address whether the entry by Officer Addison into the home was
justified by the consent exception to the warrant requirement. The Court is unpersuaded by
Defendants’ arguments that, as a matter of law, Officer Addison’s entry into the home was
justified by Ms. Delegrange’s consent. Defendants argued that consent does not have to be
explicitly verbal, and they provided citation to authority in support of that argument. However,
Defendants have failed to provide any citation to authority to support an argument that the
consent exception to the warrant requirement is satisfied by an implicit, after-the-fact consent by
someone who was not in the home at the time officers entered. Regarding Martin’s arguments
that Ms. Delegrange did not consent because she was coerced or intimidated into speaking with
the officers and allowing them to remain in the home, Defendants are correct that the only
evidence in the record is Officer Addison’s statement that Ms. Delegrange willingly spoke to him
29
and did not ask him or the other officers to leave. Thus, Martin’s intimidation and coercion
arguments fail. Still, the Court cannot find that, as a matter of law, the entry into the house by
Officer Addison and the other officers was justified by Ms. Delegrange’s supposed after-the-fact
implicit consent. This finding is not determinative as to this claim, however, because the Court
does find that exigent circumstances justified the entry.
The Seventh Circuit has made it clear “that 911 calls reporting an emergency can be
enough to support warrantless searches under the exigent circumstances exception,” particularly
where the caller identifies himself. Richardson, 208 F.3d at 630 (citations omitted) (noting that
911 calls are “one of the most common—and universally recognized—means through which
police and other emergency personnel learn that there is someone in a dangerous situation who
urgently needs help”). The Seventh Circuit further iterated the importance that “the police (and
other rescue agents) be able to respond to such calls quickly and without unnecessary secondguessing,” because “‘[p]eople could well die in emergencies if police tried to act with the calm
deliberation associated with the judicial process.’” Id. (citing Wayne v. United States, 318 F.2d
205, 212 (D.C. Cir. 1963) (Burger, J.)).
Here, an objective assessment of the situation supports a conclusion that Officer
Addison’s warrantless entry into the home was justified by exigent circumstances. Officer
Addison and the other officers were responding to a 911 call by a child who had reported that her
parents were fighting and her mother was bleeding. A reasonable officer in Officer Addison’s
situation—who received no response when he knocked at an open front door, who did not know
the current status of the bleeding mother or the child caller, and who did not know that the
alleged cause of the danger (Martin) had left the premises—would believe that his warrantless
30
entry was necessary “to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” Hawkins v. Mitchell, 756 F.3d 983, 992 (7th Cir. 2014). As
this Court has previously stated, “[c]ourts have recognized the combustible nature of domestic
disputes, and have accorded great latitude to an officer’s belief that warrantless entry was
justified by exigent circumstances when the officer had a substantial reason to believe that one of
the parties to the dispute was in danger.” Neal v. Pauley, No. 1:12cv343, 2014 WL 2452983, at
*4 (N.D. Ind. June 2, 2014) (citations and internal quotation marks omitted) (noting that
“[e]vidence of extreme danger in the form of shots fired, screaming or blood is not required for
there to be some reason to believe that a safety risk exists”). For these reasons, summary
judgment will be GRANTED to Defendants on the unlawful entry claim against Officer Addison.
Additionally, although Martin continues to state that Officer Addison conducted an
unlawful search of his home on December 15, 2015, and that summary judgment is precluded by
genuine issues of material fact existing regarding the unlawful search claim (DE 70 at 13; DE 76
at 2), the only fact in evidence before the Court regarding a search is Officer Addison’s affidavit
statement that neither he nor the other officers searched the residence (DE 65-2 ¶ 10). On this
evidence, no reasonable jury could find for Martin, and thus summary judgment will also be
GRANTED to Defendants on Martin’s unlawful search claim against Officer Addison.
3. Federal Claim Against Officer Addison for Failure to Intervene
Martin has stated that he is proceeding with his claims against Officer Addison “for
violations of his rights based upon bystander liability.” (DE 70 at 13). As stated by Martin in his
response brief, “[i]n order to be found liable to a plaintiff for excessive force under a bystander
liability theory, the plaintiff must show that an officer ‘(1) had reason to know that a fellow
31
officer was using excessive force or committing a constitutional violation, and (2) had a realistic
opportunity to intervene to prevent the act from occurring.’” (DE 70 at 13 (quoting Smith v.
Fries, No. 1:11-CV-237, 2013 WL 1192602, at *6 (N.D. Ind. Mar. 22, 2013))); accord Lewis v.
Downey, 581 F.3d 467, 472 (7th Cir. 2009).
Here, just as above with regard to Martin’s excessive force claim against Officer
Addison, the facts would not allow a reasonable jury to find for Martin on this claim. A
reasonable jury could not find that Officer Addison was liable to Martin for excessive force
under a bystander liability theory, because there is no evidence that Officer Addison was present
during the stop of Martin’s vehicle by police officers on December 15, 2010. Thus, summary
judgment will be GRANTED to Defendants on Martin’s claim against Officer Addison for
failure to intervene.
4. State Law Claims Against Officer Addison and the City of Fort Wayne
In his response, Martin states that he is proceeding with his state tort claims for false
arrest/false imprisonment against both Officer Addison and the City of Fort Wayne, as well as his
state tort claim for battery against the City of Fort Wayne. (DE 70 at 2). Defendants, in their
reply brief, contend that Martin never alleged state claims of false arrest, false imprisonment, or
battery in his complaint. (DE 74 at 11). Defendants argue that Martin sets forth his state law
claims on page 4 of his complaint, and none of the claims “even come close to making out a state
tort battery claim or claim of false arrest and false imprisonment,” so Defendants contend that
Martin failed to comply with Rule 8 of the Federal Rules of Civil Procedure. (DE 74 at 11-12).
Defendants thus argue that any state tort false arrest, false imprisonment, or battery claim should
be barred. (DE 74 at 12).
32
Martin, in his surresponse, does not address Defendants’ contention that he never alleged
claims of false arrest or false imprisonment in his complaint. (DE 76 at 5-6). Instead, he argues
the merits of these claims. Martin does address Defendants’ argument that he failed to allege a
state tort battery claim in his complaint, stating that “[t]his argument does not square with the
face of Plaintiff’s pleadings and Plaintiff’s evidence.” (DE 76 at 6). Martin quotes the factual
allegations from his complaint that he was “slammed to the ground forcefully” and “roughly
handcuffed,” and he states that Officer Addison used excessive force against him. (DE 76 at 6
(quoting DE 1 at 1, 3)). Martin then states that “[t]his type of force constitutes tortious battery
for which the Defendant City of Fort Wayne is liable,” citing Wilson v. Isaacs, 929 N.E.2d 200,
203-04 (Ind. 2010), apparently in support of his contention. (DE 76 at 6).
In their surreply brief, Defendants argue that “[e]ven if the Tort Claim Notice
requirements were met, and even if Martin’s complaint set forth claims for battery, false arrest, or
false imprisonment, Martin’s state law claims still fail,” as the City of Fort Wayne has presented
evidence showing that Fort Wayne Police officers had no interaction with Martin on December
15, 2010, and Defendants contend that Martin has failed “to present any admissible evidence to
the contrary.” (DE 79 at 5).
Martin did not allege state claims of battery, false arrest, or false imprisonment in his
complaint. In Count 3 of his complaint, Martin alleges claims of unlawful entry, excessive force,
and cruel and unusual punishment against Officer Addison and the City of Fort Wayne. (DE 1 at
3). In Count 4, Martin alleges a claim against Officer Addison for his failure to intervene. (DE 1
at 3). In Count 5, Martin alleges claims against Officer Addison and the City of Fort Wayne for
threats, intimidation, and “premeditated action” against Martin. (DE 1 at 3). In Count 6 of his
33
complaint, Martin alleges claims of defamation, harassment, retaliation, and vindictive behavior
against the City of Fort Wayne and Officer Addison. (DE 1 at 3). None of Martin’s claims
against the City of Fort Wayne allege a state tort claim of battery, false arrest, or false
imprisonment. In fact, none of the counts even mention the words “battery,” “false arrest,” or
“false imprisonment.” (DE 1 at 2-3).
Where a plaintiff fails to raise a claim in his complaint, he waives that claim; the plaintiff
cannot raise a new claim in his response to a motion for summary judgment. See Anderson v.
Donahoe, 699 F.3d 989, 997-98 (7th Cir. 2012) (explaining that claims not alleged in a plaintiff’s
complaint are waived and cannot be added in a response to the defendant’s motion for summary
judgment, as to allow a plaintiff to make new claims in a response to a motion for summary
judgment would be to amend the complaint without providing defendant the fair notice required
by the federal pleading rules); Warren v. Solo Cup Co., 516 F.3d 627, 629 n.3 (7th Cir. 2008);
Makor Issues & Rights, Ltd. v. Tellabs, Inc., 735 F. Supp. 2d 856, 911 (N.D. Ill. 2010).
Because Martin did not allege state tort claims of battery, false arrest, or false
imprisonment in his complaint, he cannot now amend his complaint via his response brief in
opposition to Defendants’ motion for summary judgment. Amendment at this stage of the
proceeding is not timely and would be prejudicial to Defendants, who have relied upon Martin’s
complaint, and who would not receive fair notice as required by the Federal Rules. Thus, the
Court rejects these claims, which therefore do not create any genuine issue of material fact to
prevent summary judgment.
Even if Martin had these pled battery, false arrest, and false imprisonment claims,
Defendants would be entitled to summary judgment on these claims. To the extent the purported
34
battery claim was based on the actions of Officer Addison, the Court has already concluded,
supra, that there is no evidence before the Court establishing that Officer Addison used excessive
force against Martin on the date in question. See Estate of Williams v. Ind. State Police, 26 F.
Supp. 3d 824, 863 (S.D. Ind. 2014 (“A battery claim under Indiana Law alleging excessive force
by law enforcement is measured by the same standards . . . for excessive force under the Fourth
Amendment.”). Thus, such a state tort battery claim would fail on its merits, and Defendants
would be granted summary judgment on the claim.
Additionally, if Martin had pled the false arrest and false imprisonment claims against
Officer Addison, Addison, the facts would not allow a reasonable jury to find for Martin on this
claim. A reasonable jury could not find that Officer Addison was liable to Martin for false arrest
or false imprisonment, because there is no evidence that Officer Addison was present during the
stop of Martin’s vehicle by police officers on December 15, 2010. Thus, even if Martin had pled
a state claim of false arrest or false imprisonment against Officer Addison, Defendants would be
granted summary judgment on such a claim.
Furthermore, if Martin had pled the battery, false arrest, and false imprisonment claims
against the City of Fort Wayne in his complaint, these claims would be procedurally barred due
to Martin’s failure to comply with the notice requirements of the Indiana Tort Claims Act
(“ITCA”). “Under the doctrine of respondeat superior, an employer is liable for the acts of its
employees which were committed within the course and scope of their employment.” Brown v.
City of Fort Wayne, 752 F. Supp. 2d 925, 957 (N.D. Ind. 2010) (quoting City of Fort Wayne v.
Moore, 706 N.E.2d 604, 607 (Ind. Ct. App. 1999)).
However, because these are state law claims against a municipality, ITCA bars bringing
35
suit on the claims unless a plaintiff timely complies with its notice requirements. White v.
Steuben Cty., No. 1:11-CV-019, 2011 WL 4496504, at *14 (N.D. Ind. Sept. 27, 2011) (citing Ind.
Code § 34-13-3-8). ITCA requires a plaintiff to file notice within 180 days after the loss occurs
with both “(1) the governing body of that political subdivision; and (2) the Indiana political
subdivision risk management commission . . . .” Ind. Code § 34-13-3-8. This notice must
provide “a short and plain statement of the facts on which the claim is based,” including “the
time and place the loss occurred, the names of all persons involved if known,” as well as the
“circumstances which brought about the loss,” among other things. Ind. Code § 34-13-3-10.
Such notice “must be in writing and must be delivered in person or by registered or certified
mail.” Ind. Code § 34-13-3-12. A plaintiff is not permitted to initiate a lawsuit against the
governmental entity unless his claim was denied in whole or in part by the governmental entity.
Ind. Code § 34-13-3-13.
“Compliance with the notice provisions of the ITCA is a procedural precedent which the
plaintiff must prove and which the trial court must determine before trial.” Davidson v. Perron,
716 N.E.2d 29, 34 (Ind. Ct. App. 1999) (citing Ind. Dep’t of Highways v. Hughes, 575 N.E.2d
676, 678 (Ind. Ct. App. 1991)). Where a defendant asserts the plaintiff’s failure to comply with
ITCA’s notice requirements as an affirmative defense, the burden then shifts to the plaintiff to
prove timely notice under ITCA. White, 2011 WL 4496504, at *14 (citing Davidson, 716 N.E.2d
at 34; Wright v. Elston, 701 N.E.2d 1227, 1233 (Ind. Ct. App. 1998)).
Here, Defendants assert that Martin never filed a tort claim notice pertaining to the
incidents he alleges took place on December 15, 2010. (DE 66 at 19). Defendants thus argue
that Martin’s state law claims are precluded by his failure to comply with the notice provisions of
36
ITCA. (DE 66 at 19). Martin, in his response, contends that there “is a genuine issue of material
fact as to whether [he] complied with the requirements of [ITCA] prior to filing his suit and
alleging various state tort claims against the Defendants.” (DE 70 at 19). Martin argues that “he
did file a tort claim notice, after the December 15th incident although there is no information on
when this occurred.” (DE 70 at 20). Martin argues that the Defendants’ records, which reflect
that no notice was ever filed, are “potentially unreliable due to inadvertent loss or misplacement
of a document after its receipt.” (DE 70 at 20). Martin contends that a “reasonable inference
exists that [he] filed a tort Claim Notice for the December 15, 2010 events complained of in this
lawsuit, it was time[ly], but was inadvertently lost or misplaced by City personnel at some point
during the roughly four years between receipt of the Notice, and when at the Defendants’ behest,
Sandra Kennedy reviewed the City’s records and completed her affidavit for this case.” (DE 70
at 20). Martin argues that all facts and reasonable inferences must be taken in the light most
favorable to him, as the non-moving party, so there is a genuine issue of material fact that
precludes dismissal of his state tort claims for failure to comply with ITCA’s notice
requirements. (DE 70 at 20).
In their reply brief, Defendants argue that Martin’s affidavit testimony is insufficient to
show compliance with ITCA’s notice requirements, and Defendants emphasize that “[compliance
with the notice provisions of the ITCA is a question of law for the Court; not a question of fact
for the jury.” (DE 74 at 11 (citing Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 471
(Ind. 1988)). Defendants contend that they have presented evidence showing that there was no
tort claim notice filed by Martin for the incident he alleges took place on December 15, 2010;
Defendants further argue that Martin has the burden of proving that he has complied with ITCA’s
37
notice requirements, a burden that he has failed to meet. (DE 74 at 11).
In his surresponse brief, Martin states that Defendants have mischaracterized the cases
they have cited in support of their argument that Martin has not complied with ITCA’s notice
requirements. (DE 76 at 5). Martin challenges Defendants’ summary of Morris, that compliance
with ITCA is a question of law, since “the case also states that a plaintiff’s claims are ‘not barred
by reason of failure to comply with the statutory notice requirement.’” (DE 76 at 5 (citing
Morris, 528 N.E.2d at 471)). Martin contends that the Court can find that he was in “substantial
compliance with the statutory notice requirement” and can find that “ a tort claim was submitted
as a matter of law.” (DE 76 at 5). Martin further argues that while Defendants’ summary of
Hedges v. Rawley, 419 N.E.2d 224, 277 (Ind. Ct. App. 1981), is correct that “a defendant may
shift the burden to a plaintiff to show compliance with the ITCA,” the dispute in Hedges
“involved a letter ‘that contained no information to apprise the [defendant] of potential tort
liability,’” which Martin states is not the situation here, where he has “submitted evidence that he
provided a proper tort claim.” (DE 76 at 5-6). Martin therefore contends that “even if the burden
has been shifted to him, he has met his burden,” and cites to paragraph 7 of his affidavit in
support of this contention. (DE 76 at 6).
In their surreply to Martin’s surresponse brief, Defendants argue that Martin has not
shown substantial compliance with the statutory notice requirements, because the purposes of the
notice requirement—“to inform the officials of the political subdivision with reasonable certainty
of the accident and surrounding circumstances so that [the] political subdivision may investigate,
determine its possible liability, and prepare a defense to the claim”—have not been satisfied.
(DE 79 at 4-5 (citing Morris, 528 N.E.2d at 471)). Defendants contend that Martin’s affidavit
38
statement in paragraph 7 “fails to prove that a Tort Claim Notice was filed with the City
describing in a short and plain statement the facts on which the claim is based, including the
circumstance which brought about the loss, the extent of the loss, the time and place that the loss
occurred, the names of the persons involved, if known, and the amount of damages sought.” (DE
79 at 5 (citing Ind. Code § 34-13-3-10)). Defendants therefore contend that Martin has failed to
meet his burden of proof and has failed to show substantial compliance, so Defendants are
entitled to summary judgment as a matter of law on all state claims in Martin’s complaint. (DE
79 at 5).
Martin is correct that the Court can find that he was in substantial compliance with
ITCA’s notice requirements. See Brown v. Alexander, 876 N.E.2d 376, 382 (Ind. Ct. App. 2007)
(citations omitted) (stating that when evaluating substantial compliance, the court “looks not to
the information held by the governmental entity but instead to the efforts made by the claimant to
notify the governmental entity of the claim,” because substantial compliance “allows an action to
proceed when a claimant has attempted to provide notice, has fallen short of the strictures of the
statute, and yet has supplied the appropriate governmental entity with sufficient information to
investigate the claim”). But either way, the determination of whether a plaintiff has complied or
substantially complied with ITCA’s notice provisions is a question of law for the Court to decide.
See id. at 380 (“Compliance with the ITCA is a question of law properly determined by the
court.”); Alexander v. City of South Bend, 256 F. Supp. 2d 865, 876 (N.D. Ind. 2003) (citing
Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989)) (“Substantial compliance with the ITCA,
while a fact-sensitive test, is a question of law.”).
While Martin attempts to distinguish the case cited by Defendants regarding the burden
39
shifting to the plaintiff to prove compliance with ITCA’s notice requirements, the burden does, in
fact, shift to Martin to prove compliance because Defendants have raised his non-compliance as
an affirmative defense. See Alexander, 256 F. Supp. 2d at 875 (“Once a defendant raises failure
to comply with the ITCA’s notice requirements, the burden shifts to the plaintiff to prove
compliance.”); see also Eckhart v. Bourrell, No. 2:10-CV-332-PRC, 2011 WL 38993, at *3
(N.D. Ind. Jan. 4, 2011); Snyder v. Town of Yorktown, 20 N.E.3d 545, 551 n.3 (Ind. Ct. App.
2014) (“If the defendant raises such affirmative defense, the burden shifts to the plaintiff to prove
compliance with the ITCA’s notice provisions.”).
Here, Defendants have raised the issue of Martin’s non-compliance with ITCA’s notice
requirements as an affirmative defense, and the burden therefore has shifted to Martin to prove
his compliance. Martin has failed to meet this burden. The evidence before the Court regarding
whether Martin complied with the notice requirements of ITCA consists of Martin’s statements
in his affidavit and Defendants’ submission of the affidavit of Sandra Kennedy.
In Martin’s affidavit, he states that he “ha[s] done Tort Claim Notices about City of Fort
Wayne police officers’ unlawful treatment of [him]” and that “[a]t least one of the Tort Claim
Notices that [he has] done [were] completed after December 15, 2010.” (DE 69-1 ¶ 7). These
statements do not satisfy Martin’s burden of proof to show compliance with ITCA’s notice
requirements. Martin vaguely states that he has “done” notices “about” the officers’ treatment of
him. (DE 69-1 ¶ 7). This statement fails to meet key provisions of ITCA’s notice requirements,
as the statement does not in fact state that Martin actually filed the notices at all; it fails to state
that he filed the notices with the required entities, namely the City of Fort Wayne and the Indiana
political subdivision risk management commission; and it fails to provide the required “short and
40
plain statement of the facts on which the claim is based,” including “the time and place the loss
occurred, the names of all persons involved if known,” as well as the “circumstances which
brought about the loss,” Ind. Code § 34-13-3-10. Martin’s affidavit statement that “[a]t least one
of the Tort Claim Notices that [he has] done was completed after December 15, 2010” (DE 69-1
¶ 7) also fails to meet ITCA’s notice requirements, as this statement does not provide any
information about the actual date that Martin made a tort claim notice; it fails to state that Martin
made the tort claim notice within the 180 day period; and it fails to state that any tort claim notice
that Martin made was even related to the incident he alleges took place on December 15, 2010, as
it only states that he made a notice after that date.
For these reasons, contrary to Martin’s assertions that he has “submitted evidence that he
provided a proper tort claim and, even if the burden has been shifted to him, he has met his
burden” (DE 76 at 6), Martin has failed to provide evidence that he ever provided any tort claim
notice regarding this alleged incident to the City of Fort Wayne or the Indiana political
subdivision risk management commission, let alone timely notice. The Court therefore concludes
that Martin has failed to meet his burden to show actual compliance with ITCA’s notice
requirements.
Martin’s affidavit statements also fail to show substantial compliance. His statements do
not show that he provided the City of Fort Wayne with notice of the “full nature of the claim
against it,” which is the “crucial consideration” for substantial compliance. Collier, 544 N.E.2d
at 499 (noting that “where a plaintiff, within the 180 day period, fails to file any notice of an
intent to make a claim, actual knowledge of the occurrence on the part of the city, even when
coupled with an investigation of the occurrence, will not suffice to prove substantial
41
compliance”). Martin’s affidavit statements do not show that he provided any information to the
City of Fort Wayne regarding the incident he alleges took place on December 15, 2010. Thus, he
has not met his burden to show substantial compliance with ITCA’s notice requirements.
The only other evidence in the record before the Court regarding Martin’s compliance
with ITCA’s notice provisions is Sandra Kennedy’s affidavit, submitted by Defendants. (DE 653). In her affidavit, Ms. Kennedy states that she is the “custodian of all notice of tort claims filed
against the City of Fort Wayne and any entity of the City of Fort Wayne, including the City of
Fort Wayne Police Department.” (DE 65-3 ¶ 3). Ms. Kennedy states that she has “reviewed the
notice of tort claims filed against the City of Fort Wayne for the years 2010, 2011, and 2012,”
and her review showed that “[t]he City of Fort Wayne and the City of Fort Wayne Police
Department did not receive a notice of tort claim from an Anthony C. Martin pertaining to any
incidents occurring on December 15, 2010 on East Masterson Street or Barr Street in Fort
Wayne, Indiana.” (DE 65-3 ¶ 5).
Thus, there is no evidence before the Court which establishes that Martin complied or
substantially complied with ITCA’s notice requirements. Rather, all of the evidence before the
Court establishes that Martin did not comply or substantially comply with ITCA’s notice
provisions. Martin has failed to meet his burden; accordingly, even if Martin had pled state law
claims of battery, false imprisonment, and false arrest against the City of Fort Wayne, summary
judgment would be granted to Defendants on these claims. See Martin v. Fort Wayne Police
Dep’t, No. 1:11-CV-350, 2014 WL 1319337, at *18 (N.D. Ind. Mar. 28, 2014) (granting
summary judgment to defendants on all state law claims where the plaintiff failed to carry his
burden of showing compliance or substantial compliance with ITCA’s notice requirements);
42
Boushehry v. City of Indianapolis, 931 N.E.2d 892 (Ind. Ct. App. 2010) (granting summary
judgment where plaintiff had failed to comply with ITCA’s notice requirements); Dameron v.
City of Scottsburg, 36 F. Supp. 2d 821, 836-39 (S.D. Ind. 1998) (granting summary judgment to
the defendant governmental entity because the plaintiff had failed to comply with ITCA’s notice
requirements).
Accordingly, the Court rejects the state tort claim for battery against the City of Fort
Wayne and the state tort claims for false arrest and false imprisonment against Officer Addison
and the City of Fort Wayne, which Martin has attempted to raise in his response to the motion for
summary judgment, because these claims were not made in his complaint. The Court notes,
however, that even if Martin had made these claims for battery, false imprisonment, and false
arrest in his complaint, summary judgment would have been granted to Defendants on the basis
that Martin had failed to comply with the notice provisions of ITCA.
D. Conclusion
For the foregoing reasons, Defendants’ motion for summary judgment (DE 65) will be
GRANTED. The Clerk is DIRECTED to enter judgment in favor of Defendants and against
Plaintiff.
SO ORDERED.
Enter for this 17th day of August 2015.
s/ Susan Collins
Susan Collins,
United States Magistrate Judge
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