Cotton v. Gilbert et al

Filing 43

MEMORANDUM OPINION AND ORDER: Kauffmans and McKnights 36 motion for summary judgment is GRANTED. Since there was no Fourth Amendment violation, we need not discuss independently the issue of qualified immunity. Defendant Thompson is DISMISSED without prejudice from this case. The Clerk is DIRECTED to enter judgment in favor of Kauffman and McKnight. Signed by Judge Jon E DeGuilio on 4/20/2016. (cc: Cotton)(rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARK A. COTTON,
Plaintiff,
v.
JOHN KAUFFMAN, et al.,
Defendants.

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Case No. 1:14-CV-189 JD

MEMORANDUM OPINION AND ORDER
In June of 2014, Plaintiff Mark A. Cotton (“Cotton”) filed a complaint pro se alleging
claims under 42 U.S.C. § 1983 against a number of police officers, judges, court clerks, and
attorneys, relating to his arrest and prosecution on several state offenses. [DE 1]. This Court
dismissed the claims against all defendants except Officer Kauffman (Kauffman), Officer
McKnight (“McKnight”), and Officer Thompson (“Thompson”). [DE 3]. This Court then gave
Cotton leave to proceed in forma pauperis on the claim, liberally construed by the Court,
alleging Kauffman made false statements necessary to the issuance of the arrest warrant, and the
claim that McKnight and Thompson allegedly made a false arrest. [Id.] Kauffman and McKnight
filed a motion for summary judgement in this matter on November 16, 2015. [DE 36]. Cotton
was served with notice advising him of his right to respond to the motion for summary judgment,
and was provided the text of the relevant federal and local rules, consistent with Appendix C to
the Local Rules for the Northern District of Indiana. [DE 40]. Cotton did not initially respond to
the motion, however, this Court, recognizing Cotton is pro se, gave an extension of time to
Cotton to file any response he might have. [DE 41]. On January 20, 2016, Cotton filed his

response, which provided no further argument or evidence of his false statement and false arrest
claim. [DE 42]. Instead, Cotton argued illegal search and seizure, which went beyond the scope
of the original complaint. [Id.] The motion for summary judgment is now ripe. For the following
reasons this Court GRANTS Kauffman’s and McKnight’s motion for summary judgment.
I. Background
Cotton’s complaint against Kauffman, McKnight, and Thompson stems from an event on
October 15, 2013, when a woman called the police to report that Cotton had battered her.
Kauffman of the Marion Indiana Police Department responded to the call. Upon arriving at the
scene Kauffman took a number of statements including the statement of the victim, the victim’s
father, and two juvenile witnesses who all confirmed seeing Cotton batter the victim. The victim
alleged Cotton grabbed her by the throat and threw her into some bushes. Kauffman later spoke
to Cotton himself, as well as Cotton’s wife who both denied the battery. Cotton confirmed he
saw the victim slip and fall, but maintained he did not batter the victim. Cotton’s wife asserted
the victim followed Cotton to his car in an aggressive manner, but never saw the victim fall to
the ground. Finally, Kauffman made visual observations of the victim. Kauffman observed the
victim had debris on her shirt that appeared to be grass and bits of leaves, and slight redness on
the victim’s neck. Kauffman also observed the victim was crying and seemed visibly shaken.
These observations were consistent with the victim’s statement that she was grabbed around the
throat and pushed down. After taking statements from the victim, the victim’s father, the two
juvenile witnesses, Cotton, and Cotton’s wife, Kauffman completed a report wherein he
summarized all the statements he had taken, including those of Cotton and Cotton’s wife. A
verified copy of the report was then submitted to the prosecuting attorney. On October 29, 2013,
battery charges were filed against Cotton. [DE 38-4]. The court then issued an arrest warrant for

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Cotton on November 13, 2013. [DE 38-5]. On November 24, 2013, McKnight and Thompson
began searching for Cotton to effectuate the arrest warrant. [DE 38-3]. McKnight asserts he had
not discussed the investigation resulting in the arrest warrant with Kauffman, nor was he aware
of the evidence submitted to the court in support of the charging information. [Id.] Officers
McKnight and Thompson located Cotton and arrested him based upon the warrant. Thompson
left the employment of the Marion Police Department prior to the attempted service of the
complaint, and was never served in this case.1 Accordingly, Thompson is DISMISSED without
prejudice from this case in accordance with Fed. R. Civ. P. 4(m).
I. Standard of Review
On summary judgment, the burden is on the moving party to demonstrate 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). That means that the Court must construe all facts in the light most
favorable to the nonmoving party, making every legitimate inference and resolving every doubt
in its favor. Srail v. Village of Lisle, Ill., 588 F.3d 940, 943 (7th Cir. 2009). A “material” fact is
one identified by the substantive law as affecting the outcome of the suit. Anderson v Liberty

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After commencing a federal suit, the plaintiff must ensure that each defendant receives a summons and a copy of
the complaint against it. Fed. R. Civ. P. 4(b), (c)(1). Unless the plaintiff can demonstrate good cause for being
unable to do so, he must accomplish this service of process within 90 days of filing to avoid possible dismissal of
the suit. Fed. R. Civ. P. 4(m). The plaintiff bears the burden to demonstrate that the district court has jurisdiction
over each defendant through effective service. See Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005). If, on its
own or on the defendant’s motion, the district court finds that the plaintiff has not met that burden and lacks good
cause for not perfecting service, the district court must either dismiss the suit or specify a time within which the
plaintiff must serve the defendant. Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). Thompson
was never served in this case. As explained by the City of Marion Legal Department, Thompson left the
employment of the City of Marion, and did not authorize the City to accept legal service on his behalf. [DE 7].
Thompson was never notified of the lawsuit by the City of Marion. [Id.] This Court explained in a prior order that
Cotton had not effected service on Thompson. [DE 19]. Cotton attempted to serve Thompson a second time in
March of 2015 at the same City of Marion address stating, “Plaintiff feels that the Marion Police Department knows
or could forward Defendant, Steve Thompson’s name, address and telephone number times available for service.”
[DE 26]. There is nothing in the record to indicate Cotton received any response from the City of Marion. It has
been over a year since Cotton’s last attempted service, and to date Thompson has never been served, nor has Cotton
attempted service again.

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Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any such material
fact, and summary judgment is therefore inappropriate, when “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Id. On the other hand, where a
factual record taken as a whole could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).
Summary judgment is not a tool to decide legitimately contested issues, and it may not be
granted unless no reasonable jury could decide in favor of the nonmoving party. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
In determining whether a genuine issue of material fact exists, this Court must construe
all facts in the light most favorable to the non-moving party, as well as draw all reasonable and
justifiable inferences in his favor. Anderson, 477 U.S. at 255; King v. Preferred Technical Grp.,
166 F.3d 887, 890 (7th Cir. 1999). But the non-moving party cannot simply rest on the
allegations or denials contained in its pleadings. It must present sufficient evidence to show the
existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th
Cir. 2000).
II. Analysis
Kauffman and McKnight argue summary judgment is proper where there existed
probable cause and the arrest warrant was facially valid. This Court agrees.
A. Probable Cause
Probable cause to arrest is an absolute defense to any claim under § 1983 against police
officers for wrongful arrest, false imprisonment, or malicious prosecution. Mustafa v. City of

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Chicago, 442 F.3d 544, 547 (7th Cir. 2006) (citation omitted). Probable cause exists if, at the
time of the arrest, the facts and circumstances within the defendant's knowledge “are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed ... an offense.” Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir.
2008). Probable cause is only a probability or substantial chance of criminal activity, not a
certainty that a crime was committed. Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983).
In determining whether information submitted to a judicial officer in support of a warrant
application was sufficient to establish probable cause, we look only at what the officer knew at
the time he sought the warrant, not at how things turned out in hindsight. Hebron v. Touhy, 18
F.3d 421, 423 (7th Cir. 1994). The complaint of a single witness or putative victim alone
generally is sufficient to establish probable cause to arrest unless the complaint would lead a
reasonable officer to be suspicious, in which case the officer has a further duty to investigate.
Beauchamp v. City of Noblesville, Ind, 320 F.3d 733 (7th Cir. 2003); Woods v. City of Chicago,
234 F.3d 979, 987 (7th Cir. 2001); Neiman v. Keane, 232 F.3d 577, 581 (7th Cir. 2000); Guzell
v. Hiller, 223 F.3d 518, 519–20 (7th Cir. 2000); Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir.
1998); Tangwall v. Stuckey, 135 F.3d 510, 516–17 (7th Cir. 1998); Hebron, 18 F.3d at 422–23;
Gerald M. v. Conneely, 858 F.2d 378, 381 (7th Cir. 1988); Gramenos v. Jewel Cos., Inc., 797
F.2d 432, 439–40 (7th Cir. 1986). And in crediting the complaint of a reasonably believable
witness or putative victim, the police are under no constitutional obligation to exclude all
suggestions that the witness or victim is not telling the truth. Spiegel v. Cortese, 196 F.3d 717,
724–25 (7th Cir. 2000); Gramenos, 797 F.2d at 442.
The Fourth Amendment requires probable cause for any arrest, but even though an arrest
warrant requires a magistrate to have determined that probable cause is present, “a warrant does

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not erect an impenetrable barrier to impeachment of a warrant affidavit.” Lawson v. Veruchi¸ 637
F.3d 699, 704 (7th Cir. 2011) (quoting Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985)).
Rather,
[i]f an officer submitted an affidavit that contained statements he knew to be false
or would have known were false had he not recklessly disregarded the truth and no
accurate information sufficient to constitute probable cause attended the false
statements, not only is his conduct the active cause of the illegal arrest, but he
cannot be said to have acted in an objectively reasonable manner.
Id. (quoting Olson, 771 F.2d at 281).
In the instant case Cotton was charged with battery,2 and there existed probable cause.
Kauffman had a statement from the victim who identified Cotton as the individual who battered
her. [DE 38-2]. Kauffman also had the visual observations of the victim which corroborated her
account of events. [Id.] The slight redness around her neck, what appeared to be debris of leaves
and grass, and the victim’s visibly shaken state were consistent with the victim’s statement that
she was grabbed around her neck and thrown to the ground by Cotton. [Id.] Additionally,
Kauffman had the statement of the victim’s father who witnessed the event and, consistent with
the statement of the victim, saw Cotton grab the victim by the neck and slam her to the ground.
[Id.] Both juvenile witnesses at the scene confirmed the same course of events. [Id.] While the
complaint of a single witness or putative victim alone generally is sufficient to establish probable
cause, Woods v. City of Chicago, 234 F.3d at 987, Kauffman had the statement of three other
witnesses who corroborated the victim’s version of events in addition to the physical
observations Kauffman was able to make. While there existed probable cause at this point,
Kauffman continued to investigate and took the statement of Cotton and Cotton’s wife.
Kauffman included both of the statements in his report, which notably were inconsistent with

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Ind. Code § 25-42-2-1(a) defines battery as follows, “[a] person who knowingly or intentionally touches another
person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor.”

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one another. Cotton stated the victim fell and Cotton’s wife denied ever seeing the victim fall.
There was probable cause in this case sufficient to render an arrest warrant.
Even if there was not probable cause, Cotton still could not prevail where there is no
evidence Kauffman made any false statement or recklessly disregarded the truth. Kauffman’s
report included summaries of statements made by the victim, the victim’s father, the two juvenile
witnesses, as well as Cotton, and Cotton’s wife. [DE 38-2]. Kauffman included in his report that
Cotton denied battering the victim, but did admit to seeing her fall. [Id.] Kauffman also included
the statement by Cotton’s wife who denied ever seeing Cotton batter the victim, or the victim
fall. [Id.] Kauffman provided a thorough recitation of the events as he knew them to be,
including those facts that indicated Cotton may not have been involved in the battery. Viewing
these facts in the light most favorable to Cotton, as well as all reasonable and justifiable
inferences, Anderson v Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), this Court cannot find any
evidence of a false statement. Nor does Cotton allege any particular statement made by
Kauffman was false. The party opposing summary judgment cannot simply rest on the
allegations or denials contained in its pleadings. It must present sufficient evidence to show the
existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323 (1986). Cotton provides no evidence to this Court of any false
statement made by Kauffman, nor can this Court find Kauffman acted in a way that recklessly
disregarded the truth. Kauffman’s report included all the information known to him, including
that Cotton and Cotton’s wife denied the battery. Cotton’s response to the motion for summary
judgment consists largely of legal research about search and seizure violations and arrest warrant
requirements. [DE 42]. Cotton then alleges the police entered his home without permission,
conducted an illegal search, and did not produce an arrest warrant when asked. [DE 42 p. 47].

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Cotton’s argument exceeds the scope of the complaint, which alleges an illegal arrest “without
any evidence of a violation of a criminal statute” where there exited no probable cause. [DE 1 p.
5]. Accordingly, Kauffman’s motion for summary judgment is granted.
B. McKnight acted upon a facially valid warrant
Cotton asserts a false arrest claim under the Fourth Amendment against McKnight, who
was personally involved in Cotton’s arrest. [DE 1]. In response McKnight argues there was
probable cause in this case, and he acted upon a facially valid warrant.
Typically, officers who make an arrest pursuant to a facially valid warrant cannot be
liable for false arrest under § 1983, but an exception to this rule is where the officers knew the
warrant had been issued without probable cause. Williamson v. Curran, 714 F.3d 432, 444-45
(7th Cir. 2013); Juriss v. McGowan, 957 F.2d 345, 350-51 (7th Cir. 1992).
For Cotton to prevail on his claim against McKnight he would have to show that the
warrant was issued without probable cause, and that McKnight knew the warrant was issued
without probable cause. Cotton can show neither of these requirements.
As discussed above, probable cause was present in the instant case. Even if probable
cause was lacking, however, Cotton still cannot prevail. There is nothing in the record to support
the assertion that McKnight knew the information which caused the arrest warrant to be issued.
In fact, McKnight asserts he was assigned the duty of locating Cotton for the arrest, but had not
discussed the investigation which resulted in the issuance of the arrest warrant with Kauffman.
[DE 38-3]. Nor was McKnight aware of evidence submitted that resulted in a warrant being
issued by the court. [Id.] Cotton does not attempt in any filings to assert McKnight knew
specifics within the warrant, but rather asserts there was no probable cause for the arrest and

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therefore McKnight placed Cotton under arrest falsely. [DE 1]. There was probable cause, and as
such McKnight’s motion for summary judgment is granted.
III. Conclusion
For the foregoing reasons Kauffman’s and McKnight’s motion for summary judgment is
GRANTED. Since there was no Fourth Amendment violation, we need not discuss
independently the issue of qualified immunity. Defendant Thompson is DISMISSED without
prejudice from this case. The Clerk is DIRECTED to enter judgment in favor of Kauffman and
McKnight.
SO ORDERED.
ENTERED: April 20, 2016

/s/ JON E. DEGUILIO
Judge
United States District Court

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