Martin v. Wentz et al

Filing 187

OPINION AND ORDER denying 186 Motion for Reconsideration. Anthony Cyril Martin is REMINDED the deadline for filing his response to the Defendants' motion for summary is 5/1/19 at 2:00 p.m. and if he has not done so, "the Court will th en reopen the case and set a deadline for Plaintiff to file his response brief [and] that once the Court sets that deadline, he will not be afforded any further extensions for filing his response to the motion for summary judgment." Signed by Magistrate Judge Susan L Collins on 4/29/19. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANTHONY CYRIL MARTIN,
Plaintiff,
v.

CAUSE NO. 1:13-cv-00244-SLC

MARK WENTZ, et al.,
Defendants.
OPINION AND ORDER
Anthony Cyril Martin, a prisoner without a lawyer, filed a motion asking the
Court to reconsider the screening Order issued June 4, 2014. (DE 186). He states, “after
reviewing the CD/DVD’s, he has retrieved ‘relevant and material evidence that
supports [his] claims that were ultimately dismissed by Judge Van Bokkelen, but with
the ‘now’ present documents and facts, the Court cannot ignore or sit idley [sic], but to
reconsider plaintiff’s claims [de novo].” (DE 186-1 at 2-3 (imbalanced quotation mark
and brackets in original except for [sic] to indicate the misspelling of idly)). Specifically,
Martin asks the Court to reinstate four claims.
First, Martin argues he has evidence demonstrating the City of Fort Wayne has
an unconstitutional policy which violated his rights. He alleges the policy PD97-2301
instructs officers to stop a person without probable cause, reasonable suspicion, or
articulatable facts. However, this is not the claim the Court considered when it
screened his complaint. Here is how the Court explained the dismissal of the claims
against the City of Fort Wayne:

Martin alleges that the City of Fort Wayne has a policy, procedure,
or custom which violates his Constitutional rights. “To establish a
municipal policy or custom, [the plaintiff] must allege a specific pattern or
series of incidents that support the general allegation of a custom or
policy.” Hollins v. City of Milwaukee, 574 F.3d 822, 827 (7th Cir. Wis. 2009).
Here, Martin has neither explained what practice the city has adopted, nor
described any pattern of events. Though he alleges that the City of Fort
Wayne failed to train its employees, he has not provided any factual basis
for this claim. “The inadequacy of police training may serve as the basis
for § 1983 liability, but only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come
into contact.” Id. In sum, these allegations are wholly devoid of any facts
or context and they do not plausibly state a claim.
(DE 13 at 6 (brackets in original)). Martin’s attempt to add new facts for his claim
against the City of Fort Wayne is not properly considered a motion to reconsider
because reconsidering will not change the facts in the complaint that was screened. To
add new facts to his complaint would require that he file an amended complaint.
However, it is too late to file an amended complaint to add these facts. Pursuant
to the Court’s scheduling Order, the deadline for amending pleadings expired on
February 11, 2016. (DE 104). As that Order explains, “pursuant to Federal Rule of Civil
Procedure 16(b), [the scheduling order] shall not be modified except upon a showing of
good cause . . ..” Id. Martin alleges his new facts are a result of having reviewed the
CD/DVD’s obtained in discovery for this case and only recently viewed. However, the
copy of policy PD97-2301 attached to his motion (DE 186-2 at 3-8) shows it was sent to
him on August 12, 2009, as discovery in Martin v. Fort Wayne Police Department, 1:09-CV074 (N.D. Ind. filed March 23, 2009) (DE 17-4). Martin has not shown good cause for
waiting nearly five years to amend his complaint to add facts to his claim against the

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City of Fort Wayne which he had more than five years before he filed the amended
complaint. (DE 12).
Second, Martin asks the Court to reconsider his claim against Officer Mark
Wentz for filing a false probable cause affidavit. Here is how the Court explained the
dismissal of this claim:
Martin alleges that Fort Wayne Police Officer Mark Wentz filed a
false probable cause affidavit to obtain a warrant for his arrest for robbery
and resisting arrest which mentioned a red SUV with Indiana plate
964LSM even though he knew that there were no reports of a red SUV
having been seen at the robbery. He has not attached the affidavit or the
warrant and he makes no mention of how this false statement was
relevant to the charge of resisting arrest. Because he has not alleged “that
the false statements were necessary to the judicial officers’ determinations
that probable case existed,” Beauchamp v. City of Noblesville, 320 F.3d 733,
742 (7th Cir. 2003), to issue a warrant for resisting arrest, he has not
plausibly alleged that the warrant was invalidly issued or that he was
falsely arrested pursuant to it.
(DE 13 at 6-7).
Martin now states there was no warrant. He now wants to submit the affidavit.
He argues he did not resist arrest and that the officer who arrested him lacked authority
to do so because he was in an unmarked police vehicle. These are not the arguments
and claims presented in the complaint that was screened. As explained, this is not a
basis for reconsidering the screening Order. To consider these new facts and arguments
not previously raised, Martin would have to file an amended complaint. But it is too
late for that. There is no indication any of these facts, arguments, or documents (DE
186-2 at 12-16) were obtained from the CD/DVD discovery in this case. All of these

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documents existed in 2013 when those events occurred.1 Martin has not shown good
cause for waiting nearly five years to amend his complaint to add facts and change the
arguments about the false probable cause affidavit which he could have obtained before
he filed the amended complaint (DE 12).
Third, Martin asks the Court to reconsider the claim he was falsely imprisoned.
Here is how the Court explained the dismissal of this claim:
Martin alleges that he was “falsely imprisoned because a 72 hour
investigation was commenced which plaintiff was never read no warrant
nor was any formal charges read, or presented to plaintiff before the
allotted time frame. (7-24-13 [to] 7-29-13).” DE 12 at 7. However, this does
not state a plausible claim. The dates provided by Martin imply that he
was held for five days before he was charged, but Indiana Code 35-33-73(b) provides that “If the prosecuting attorney states that more time is
required to evaluate the case and determine whether a charge should be
filed, or if it is necessary to transfer the person to another court, then the
court shall recess or continue the initial hearing for up to seventy-two (72)
hours, excluding intervening Saturdays, Sundays, and legal holidays.”
Here, July 27, 2013, was Saturday and July 28, 2013, was Sunday. Martin
does not say when he was arrested on July 24, 2013. He does not say what
time his initial hearing was held. He does not say what time the hearing
was continued to on July 29, 2013. The Supreme Court has held that “an
individual subjected to a warrantless arrest must receive a probable cause
determination within forty-eight hours of the arrest. See Cnty. of Riverside
v. McLaughlin, 500 U.S. 44, 57 (1991). [But t]he Court did not hold that an
individual must be charged with a crime within that same forty-eight
hour period.” Holloway v. Del. County Sheriff, 700 F.3d 1063 (7th Cir. 2012)
(parallel citations omitted). Here, Martin acknowledges that he was
arrested pursuant to a warrant. For the foregoing reasons, he has not
alleged facts which permit the court to plausibly infer that any defendant
falsely imprisoned him in violation of his Constitutional rights.
(DE 13 at 7-8 (brackets in original)).

1 The docket sheet Martin attached was printed on July 13, 2017, but the only entry on the docket
after 2013 is “1/21/2016 Case File Destroyed.” (DE 186-2 at 16). Therefore all the relevant docket entries
existed in 2013.

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Martin now states there was no warrant. He now states his dates were wrong.
He now wants to include what time events happened. As explained, this is not a basis
for reconsidering the screening Order. To consider these new facts, Martin would have
to file an amended complaint. Again, it is too late for that. There is no indication any of
these facts were obtained from the CD/DVD discovery in this case. All of these facts
existed in 2013 when those events occurred. Martin has not shown good cause for
waiting nearly five years to amend his complaint to change the facts related to his false
imprisonment claim which he could have obtained before he filed the amended
complaint (DE 12).
Fourth, Martin asks the Court to reconsider the claim he was unlawfully
searched. Here is how the Court explained the dismissal of this claim:
Finally, Martin alleges that Fort Wayne Police Officers Robert
Hollo, Thomas Strausborger, Derrick DeMorest, Gary Hensler, and
Charles Taylor searched his car. Martin makes the conclusory allegation
that the search was illegal, but he has not provided any factual basis from
which it can be plausibly inferred that the search was illegal. “[A]n
automobile search incident to a recent occupant’s arrest is constitutional
(1) if the arrestee is within reaching distance of the vehicle during the
search, or (2) if the police have reason to believe that the vehicle contains
evidence relevant to the crime of arrest.” Davis v. United States, 131 S. Ct.
2419 (2011) (quotation marks omitted). Here, Martin does not say what
was searched for nor what (if anything) was found. He does not say
whether the search occurred while he was within reaching distance of the
car. He does not explain why he believes that the search was not related
to the crime(s) of his arrest. Therefore he has not stated a claim for an
illegal search of his car incident to his arrest.
(DE 13 at 8).
Martin now wants to add additional facts nearly five years after his complaint
was screened. As explained several times, this is not a basis for reconsideration. There
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is no indication the facts he wants to add were obtained from the CD/DVD discovery in
this case. He has not shown good cause to modify the screening Order to permit him to
file an amended complaint at this late date.
Rather, it is time for Martin to file his response to those portions of the
Defendants’ summary judgment motion (DE 143) filed July 1, 2016, which addresses his
two excessive force claims. Though the Defendants included arguments related to other
claims, those arguments are moot because Martin was not granted leave to proceed on
them in the screening Order (DE 13).
For these reasons, Martin’s motion (DE 186) is DENIED. Anthony Cyril Martin is
REMINDED the deadline for filing his response to the Defendants’ motion for summary
is May 1, 2019, at 2:00 p.m. and if he has not done so, “the Court will then reopen the
case and set a deadline for Plaintiff to file his response brief [and] that once the Court
sets that deadline, he will not be afforded any further extensions for filing his response
to the motion for summary judgment.” (DE 185 at 2).
SO ORDERED.
Entered this 29th day of April 2019.

/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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