Clevenger v. City of North Webster Police Department et al
OPINION AND ORDER GRANTING 66 MOTION for Summary Judgment filed by Church, City of North Webster Police Department, North Webster Chief of Police, GRANTING 70 MOTION for Summary Judgment Defendants, Kosciusko County Sheriff 39;s Department, Kosciusko County Sheriff Deputy Knafel, and Kosciusko County Sheriff Deputy Shepherd's Motion for Summary Judgment filed by Knafel, Shepard, Kosciusko County Sheriff's Department, GRANTING 91 MOTION for Summary Judgment filed by Wawasee Community School Corporation, Holtz, North Webster Elementary. Clerk is ORDERED to DISMISS the federal claims against all of the dfts WITH PREJUDICE. Plantiff's state law claims are DISMISSED WITHOUT PREJUDICE to refiling in state court. 85 108 115 Motions to Strike are all DENIED. Clerk ordered to CLOSE case. Signed by Judge Philip P Simon on 08/14/17. (sct)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CITY OF NORTH WEBSTER
POLICE DEPARTMENT, et al.,
Cause No. 1:15-CV-337
OPINION AND ORDER
This case results from an unfortunate typographical error made by a divorce
court which led to Clifford Clevenger being arrested and jailed for a few hours, but then
released without charges being filed. The court order at issue states a “provisional
order” is terminated, when it apparently meant to say that the “protective order” was
terminated. Clevenger was arrested at his son’s school for violation of the protective
order. He then brought suit against a bevy of defendants who can be cataloged into
three groups: group one is the City of North Webster Police Department, Police Officer
Church, and North Webster Chief of Police (the “North Webster Defendants”); group
two is the Kosciusko County Sheriff’s Department, Kosciusko County Sheriff Deputy
Knafel and Sergeant Shepherd (the “Kosciusko Defendants”); and group three, the
Wawasee Community School Corporation, North Webster Elementary and the acting
principal Christie Holst (the “School Defendants”). Clevenger makes claims under
section 1983 and 1985 alleging Fourth Amendment violations of wrongful arrest, false
imprisonment, and use of excessive force, as well as state law claims of assault, battery,
false imprisonment, false arrest, and negligent infliction of emotional distress.
All three groups of defendants now seek summary judgment [DE 66, 70, 91].
There are also three motions to strike certain exhibits and portions of an affidavit [DE
85, 108, 115]. To summarize this longish opinion, the motions to strike are all denied as
I can sift through the evidence myself and consider each piece under the applicable
rules. The motions for summary judgment are all granted as the arresting officers are
entitled to qualified immunity because they had, at the very least, arguable probable
cause to make the arrest. As for the municipalities, they don’t have liability under
Monell, the use of force was reasonably necessary to make the arrest, and Plaintiff has
not established a federal claim for false imprisonment. Because I have granted
summary judgment for all of the defendants on the federal claims, I will dismiss
without prejudice the state law claims.
Clevenger was married to Heather DeSomer until 2012, when DeSomer filed a
petition for dissolution of the marriage. Clevenger and DeSomer have five children,
three of whom were minors as of December 2016, and DeSomer has physical custody
over the minor children.
Clevenger and DeSomer’s divorce is final; however, post-dissolution proceedings
regarding issues like visitation and support are ongoing. [Clevenger Dep. at 7.] As part
of the post-dissolution proceedings, the dissolution court issued a Protective Order on
November 8, 2012. [DE 72-1.] The Protective Order has Case No. 43C01-1211-PO-239 at
the top, and states that Clevenger “is ordered to stay away from the residence, school,
and/or place of employment of [DeSomer].” Id. The Protective Order expires two
years after November 8, 2012. Id. DeSomer worked for the Wawasee Community
School Corporation, at its North Webster Elementary School. Her son, Caleb, went to
school there as well.
About nine months later, the dissolution court issued an order, dated August 14,
2013 (the “August 2013 Order”), which is at the heart of this controversy. [DE 72-2.]
The order states, in pertinent part, that “[t]he Provisional Order entered by this Court
under Cause Number 43C01-1211-PO-239 is hereby terminated.” Id. Neither the words
“Protective Order,” nor the date of the Protective Order (November 8, 2012), are
contained in this order. There is in fact something known as a “provisional order”
under Indiana divorce laws. That is the order that is commonly entered by a court
when a complaint seeking a divorce is first filed. The purpose of the provisional order
is to govern the rights of the parties while the divorce is pending but prior to its
disposition. See Mosley v. Mosley, 906 N.E.2d 928, 929-30 (Ind. Ct. App. 2009); Ind. Code
§ 31-15-4-14. Hence the moniker “provisional.” So the fact that the state court in this
case said that the “provisional order . . . is hereby terminated” is not a fact that would
have struck someone as odd.
On November 14, 2013, Clevenger was off work and was in Warsaw, Indiana,
close to North Webster Elementary School. [Clevenger Dep. at 39-40.] It was near
lunchtime, so he decided to stop by the school to visit his son, Caleb, and perhaps eat
lunch with him. Id. When he arrived at the school, Clevenger asked the receptionist,
Janette Fisher, when Caleb had lunch and if he could talk to Caleb. [Id. at 41, 43-45.]
Officials at the school knew about the protective order, and someone called the
North Webster Police Department to report Clevenger’s presence and the potential
protective order violation. [Police Chief Church Aff. ¶ 3.] Officer Church responded by
going to North Webster Elementary School. [Id. ¶ 4.] Before he arrived, Officer Church
was advised by Central Dispatch that there was an active protective order in place,
preventing Clevenger from being at the school where his ex-wife worked. [Id. ¶ 5.]
While Officer Church was en route to the school, Christie Holst (wrongly pled as
North Webster School Employee “Holtz”), who was acting Principal, approached
Clevenger and asked why he was at the school. [Holst Aff. ¶ 10.] Clevenger said he
wanted to see his son, and according to Holst, he was “loud and belligerent and refused
to say why he wanted to see his son.” [Id. ¶ 11.] Clevenger denies being loud or
disruptive. [Clevenger Aff. ¶ 15.] Holst claims she asked Clevenger to leave, and he
stated he wanted to have lunch with his son. [Holst Aff. ¶ 12.] Holst also claims she
told Clevenger Caleb’s lunch period was not for another two hours, and he could not
remain on the premises [Id. ¶ 13], but Clevenger denies this and denies he was ever
asked to leave [Clevenger Aff. ¶ 10]. Holst escorted Clevenger to an office and asked
him to wait until Officer Church arrived. [Holst Aff. ¶ 14.] At some point during this
process, someone spoke to DeSomer and she also said that the Protective Order was no
longer in effect. [Compl. ¶ 15j.]
When Officer Church arrived on the scene, he asked Clevenger to come with him
into another office, and then told Clevenger, “[y]ou know you’re not supposed to be
here,” to which Clevenger replied, “if you’re referring to the protective order it was
vacated.” [Clevenger Dep. at 49; Church Aff. ¶ 6.] Clevenger showed Officer Church a
copy of the August 2013 Order. [Clevenger Dep. at 55-56; Church Aff. ¶¶ 7-8.] The
problem is that the paperwork said no such thing. Indeed, Officer Church immediately
recognized the fact that the order stated that a “provisional” order had been terminated
not that the Protective Order had been terminated. [Church Aff. ¶ 8.]
Sergeant Knafel with the Kosciusko County Sheriff’s Department arrived next,
and also talked with Clevenger. Sergeant Knafel and Police Chief Church contacted
Central Dispatch to confirm for a second time whether the Protective Order was still in
effect. [Church Aff. ¶ 10.] Central Dispatch’s records division again confirmed that the
Protective Order was still in place, there was no record of the order being vacated, and
faxed a copy of the Protective Order to the school. Id.
Sergeant Knafel and Police Chief Church told Clevenger that the Protective
Order was still in effect, but Clevenger disagreed. [Clevenger Dep. at 75.] During this
exchange, Clevenger was using his cell phone to video and record his conversation with
Police Chief Church and Sergeant Knafel. [Clevenger Dep. at 76.] I have watched the
DVD of the incident so there is not much room for doubt as to precisely what took
place. See Exhibit F to the Kosciusko County Defendants’ Designation of Evidence.
Here’s what happened: Clevenger told the officers he was “just going to leave,” at
which point Sergeant Knafel hit Clevenger’s hand, knocking his phone to the ground.
[Clevenger Dep. at 76.] Sergeant Knafel then grabbed Clevenger’s arm, “crank[ed] it
behind [his] back,” handcuffed Clevenger, and took him out of the school. [Id. at 76-77,
81.] Clevenger is not sure whether any other officer assisted Sergeant Knafel with the
handcuffing process. [Id. at 85.] Clevenger was not injured when Sergeant Knafel
knocked the phone out of his hand “[o]ther than red marks and other things like that.”
[Clevenger Dep. at 82.] Aside from cranking his arm back, the officers did not use any
other force on Clevenger. [Id. at 85-86.]
Clevenger was transported to the Kosciusko County Jail by Officer Sheperd.
Clevenger was placed in a holding cell, but was released later the same day. During the
time Clevenger was in the holding cell, the dissolution court issued another order. It
must have recognized that the earlier order terminating the “provisional” order was an
error, because the new order specifically states that “[t]he Protective Order entered by
this Court under Cause Number 43C01-1211-PO-239 is hereby terminated.” [DE 72-6 at
1 (emphasis added).] A copy of the Amended Order was then sent to the Kosciusko
County Sheriff’s Department, and Clevenger was promptly released and no charges
were ever filed against him. Id.
I’ll start with the motions to strike. Three of them have been filed: (1) the
Kosciusko Defendants move to strike various paragraphs from the affidavit of Clifford
A. Clevenger (Plaintiff’s father) as inadmissible hearsay [DE 85 at 2]; (2) Plaintiff moves
to strike Exhibit D (Plaintiff’s discovery responses and letters requesting Plaintiff
supplement the responses), as procedurally inappropriate under Federal Rule of Civil
Procedure 37 [DE 108]; and (3) the School Defendants move to strike Exhibit B to
Plaintiff’s response to Defendants’ motion for summary judgment (affidavit of Plaintiff
Clifford Clevenger) as containing conclusory allegations and as an inappropriate way to
set forth the statement of genuine disputes under Rule 56 [DE 115].
Motions to strike are heavily disfavored, and usually only granted in
circumstances where the contested evidence causes prejudice to the moving party.
Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D. Ind. 2009); Gaskin v. Sharp Elec.
Corp., No. 2:05-CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007). I can consider
the affidavits and exhibits without the need to employ a motion to strike.
With respect to the alleged hearsay objection, I only consider evidence that
would be admissible at trial. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.
2000). I can sift through the evidence and consider each piece under the applicable
federal rules. Indeed, it is the function of a court, with or without a motion to strike, to
review carefully both statements of material facts and statements of genuine issues and
the headings contained therein and to eliminate from consideration any argument,
conclusions, and assertions unsupported by the documented evidence of record offered
in support of the statement. See, e.g., SEC v. KPMG LLP, 412 F.Supp.2d 349, 392
(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., No. 04 C 5167, 05 C
2253, 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., No.
03 C 2249, 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324
F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004).
Therefore, there is no need to strike any portion of the Defendants’ or Plaintiff’s
evidence. So the motions to strike are all denied.
Let’s move now to the meat of the case, the motions for summary judgment.
Summary judgment must be granted when “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). A genuine dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Here, there are three separate motions for summary judgment, filed by the three
groups of defendants. I will take each in turn, addressing the federal claims.
Group One: the North Webster Police Department Defendants1
I’ll begin by clearing out some underbrush. In his response, Clevenger dismisses
his excessive force claim and Eighth Amendment claim against the North Webster
Defendants, and dismisses the section 1983 and 1985 claims against the Chief of Police
in his personal capacity, and nothing more needs to be said about those claims. [DE #79
Clevenger sued both “North Webster Police Officer Church” and “North Webster’s
Chief of Police,” yet these defendants are the same people. Officer Church is the Chief of Police
for the City of North Webster. (Church Aff. ¶ 1.)
Clevenger first alleges that the North Webster Defendants violated his Fourth
Amendment rights by arresting him without probable cause. To prevail on a section
1983 claim for false arrest, Clevenger must show there was no probable cause for his
arrest. Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012). “Probable cause to arrest is
an absolute defense to any claim under Section 1983 against police officers for wrongful
arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). There appears to
have been probable cause to have arrested Clevenger — whether by mistake or
otherwise, an order of protection was in place and Clevenger was violating it. But in all
events, the defense of qualified immunity torpedoes Clevenger’s claims.
Qualified immunity allows law enforcement officers to do their jobs free from
concerns that they may later be second-guessed and sued for actions reasonably taken.
The immunity provides ample protection “to all but the plainly incompetent or those
who knowingly violate the law.” Millspaugh v. Cnty. Dep’t of Public Welfare of Wabash
Cnty., 937 F.2d 1172, 1176 (7th Cir. 1991) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). In essence, it lends an added layer of protection to officers by shielding them
from “suit for damages if ‘a reasonable officer could have believed [the arrest] to be
lawful, in light of clearly established law and the information the [arresting] officers
possessed.’” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson v. Creighton,
483 U.S. 635, 641 (1987)). Although the privilege of qualified immunity is a defense, the
plaintiff carries the burden of defeating it. Molina ex rel. Molina v. Cooper, 325 F.3d 963,
968 (7th Cir. 2003). Whether a government official is entitled to qualified immunity is a
legal question for resolution by the court, not a jury. Hunter v. Bryant, 502 U.S. 224, 228
There is a two-part inquiry to determine if qualified immunity applies to the
actions of a public official: (1) whether the facts alleged, taken in the light most
favorable to the plaintiff, amount to a constitutional violation; and (2) whether the
constitutional right at issue was clearly established at the time of the alleged violation.
Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011). I can address these in either order.
Pearson v. Callahan, 555 U.S. 223, 236-42 (2009). In this case, I need only answer the
second question to determine if Officer Church is entitled to qualified immunity.
To determine if a right was clearly established at the time of an alleged violation,
I look at “whether it would be clear to a reasonable official that his or her conduct was
unlawful in the situation.” Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). In
the context of a wrongful arrest, the question is really whether the arresting officer had
“arguable probable cause.” Jones, 630 F.3d at 684. “Arguable probable cause exists
when a reasonable officer could mistakenly have believed that he had probable cause to
make the arrest.” McComas v. Brickley, 673 F.3d 722, 7265 (7th Cir. 2012) (emphasis in
In other words, as long as Police Chief Church reasonably believed, albeit
possibly mistakenly, that he had cause to arrest Clevenger, then he is entitled to
qualified immunity. Here, there is ample evidence to support Officer Church’s belief
that Clevenger was violating an active protective order. Before he even arrived to the
school, Officer Church was advised by Central Dispatch that there was an active
protective order in place that prevented Clevenger from being there. At school, Officer
Church listened to Clevenger’s argument, and looked at the August 2013 Order that
Clevenger showed him, but noted that the order did not state that the protective order
had been terminated —rather, it said “the Provisional Order entered by this Court
under Cause Number 43C01-1211-PO-239 is hereby terminated.” Officer Church and
Sergeant Knafel then contacted Central Dispatch for further confirmation that the
Protective Order was still in place, and Central Dispatch’s records division orally
confirmed to him that the Protective Order was still in place, there was no record of the
order being vacated, and then faxed a copy of the Protective Order to the school. The
Protective Order received via fax was dated November 8, 2012, and stated it would
remain valid for two years. Looking at the sum of this information available to Officer
Church at that time, I think it was reasonable for him to believe the Protective Order
was in effect, and that Clevenger’s presence at the school violated the order.
Clevenger argues that Officer Church should have known the Protective Order
was vacated. First, he claims the cause number “43C01-1211-PO-239" was indeed the
docket number for the Protective Order, that provisional orders do not have cause
numbers, and that even Clevenger’s father, Clifford A. Clevenger, figured out within a
few minutes that the Order’s language — “[t]he Provisional Order entered by this Court
under Cause Number 43C01-1211-PO-239 is hereby terminated” — could not have
really been referring to the provisional order, but rather intended to vacate the
Protective Order. Clevenger argues “[a] reasonable officer could have made the s[a]me
discovery.” [DE 79 at 7.] I disagree. I just don’t think a reasonable officer could have
jumped through all those legal hoops to come up with the realization that “provisional
order” was actually a typographical error, and the court really meant “protective
order.” Indeed, Indiana law requires protective orders to be retained and accessible,
and then removed from the police’s registry upon notice of termination of the protective
order. Ind. Code §§ 5-2-9-5-5.5, 5-2-9-6. Here, Officer Church was informed by Central
Dispatch that there was still a valid Protective Order on the books, and indeed there
was, at least until the judge recognized the error and issued an amended order. Officer
Church had the right to rely on what the order said. It wasn’t for him to rewrite the
order or second-guess the judge who issued it.
Clevenger’s second line of argument is that the August 2013 Order was facially
“confusing,” thus a reasonable officer would have investigated further. I’m not sure
what more a reasonable officer would have done in this situation — Officer Church
confirmed twice with Central Dispatch that there was an outstanding Protective Order,
he had the order faxed to him, reviewed the terms, found them applicable, and
reviewed the August 2013 Order which did not specifically state that the Protective
Order had been terminated. To the extent Clevenger argues that Defendants should
have sought out additional information or called the judge’s chambers for qualification,
I disagree, and so have others when confronted with a similar claim:
The Constitution does not require an arresting officer to conduct an
incredibly detailed investigation at the probable cause stage. . . .
Once an officer has trustworthy information that leads him to
reasonably believe that probable cause exists, he is entitled to rely
on that information and is under no further duty to investigate.
Olig v. City of Hobart Police Dep’t, No. 2:08 cv 301, 2010 WL 3894108, at *6 (N.D. Ind.
Sept. 30, 2010) (quotations and citations omitted).
What’s more, if the August 2013 Order was really ambiguous or not facially
clear, as Clevenger urges, then Officer Church could not have knowingly violated
Clevenger’s rights. See Coons v. Gwinnett Cty., 657 F. App’x 856, 862 (11th Cir. 2016)
(holding jail warden entitled to qualified immunity noting ambiguity in judicial orders
regarding plaintiff’s detention); Hardy v. Runyon, No. 1:10-CV-372, 2012 WL 602070, at
*8 (N.D. Ind. Feb. 23, 2012) (“At most, the jailers committed a reasonable error in
thinking that [plaintiff] needed to be detained until his ambiguous commitment order
was clarified, and thus they are entitled to qualified immunity as a matter of law.”).
As I have alluded to a couple of times, it is especially telling that the divorce
court found it appropriate to amend the August 2013 Order. When Clevenger was in
the holding cell, the court issued an amended order specifically stating that “[t]he
Protective Order entered by this Court under Cause Number 43C01-1211-PO-239 is
hereby terminated.” [DE 72-6 at 1.] To me, this makes clear that the August 2013 Order
did not actually vacate the Protective Order, and it was still in force and effect until the
court fixed its mistake. So Officer Church wasn’t really mistaken when he believed the
protection order was still in effect. It was, at least until it was amended by the judge. But
even if one does not go that far, the amended order at least shows that the August 2013
Order was, if not incorrect, at least confusing. Either of these bases shows that the
arresting officers had, if not probable cause, at the very least “arguable probable cause.”
Jones, 630 F.3d at 684.
The case of Sutherland v. Bubrick, No. 02 C 50231, 2002 WL 31870160 (N.D. Ill.
Dec. 23, 2002), provides a helpful example in support. In Sutherland, the police pulled
over Sutherland for speeding, and during a background check, discovered he was the
subject of an active order of protection which listed his sons as protected persons. Id. at
*2. One son was riding in the car with him at the time. The court explained that:
[A]lthough the original ex parte protective order [his former wife]
obtained had listed herself and the two children as protected
persons, it was only in effect for a few weeks and a subsequent,
plenary order - the one that was supposed to be in effect on May 4,
2002 - had removed [the children] as protected persons.
Id. The police checked with the dispatcher, who reported that the children were
protected persons. Id. In the meantime, Sutherland called his ex-wife, who backed up
everything he said - that the children were not supposed to be on the order of protection
anymore, that she knew her son was with Sutherland and was fine with it, and she
could bring the paperwork to the police station. Id. Nevertheless, the police arrested
Sutherland for violating the protective order based on the information she had received
from dispatch. As it turns out, Sutherland was right - due to a clerical error, the
computer database had not been properly updated to reflect the children had in fact
been removed as protected persons.
Following a qualified immunity analysis, and
citing analogous cases, the court found that the officer could have properly relied on the
dispatch report, and “that a reasonable police officer in the same circumstances and
with the same knowledge Bubrick had could have reasonably believed that probable
cause existed.” Id. at *3 (emphasis in original). Similarly, a reasonable officer that had
the same knowledge as Officer Church in the same situation could have reasonably
believed probable cause existed.
Clevenger also brings claims against the City of North Webster Police
Department and Police Chief Church in his official capacity. To the extent Clevenger
has sued Officer Church in his official capacity, it is established law that those claims
are treated as if the plaintiff has sued the municipality itself. See Kentucky v. Graham, 473
U.S. 159, 165 (1985); Brandon v. Holt, 469 U.S. 464 (1985). Thus, the claims against Officer
Church in his official capacity are treated as claims against the City of North Webster
Municipalities are only liable if they act pursuant to an unconstitutional custom,
policy, or practice. Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658
(1978). A municipality cannot incur liability in an action under section 1983 merely
because it employs a tortfeasor. Monell, 436 U.S. at 690-91. Both parties agree that those
who employ police officers can be held liable pursuant to section 1983 only if there is:
(1) an express policy that would cause a constitutional deprivation
if enforced; (2) a common practice that is so widespread and wellsettled that it constitutes a custom or practice; or (3) an allegation
that the constitutional injury was caused by a person with final
League of Women Voters of Chicago v. City of Chicago, 757 F.3d 722, 727 (7th Cir. 2014)
(citing Estate of Sims v. Cnty. Of Bureau, 506 F.3d 509, 515 (7th Cir. 2007)).
Clevenger baldly asserts that “[t]he facts listed above make it clear that such
policy played a role in the events that led to Clevenger’s arrest.” [DE 79 at 13.] This is a
conclusion, not evidence. Clevenger fails to set forth any facts whatsoever regarding an
alleged policy and its application or specifically set forth why this policy is supposedly
unconstitutional. See Martin v. Fort Wayne Police Dep’t, No. 1:11-CV-348 RM, 2013 WL
310298, at *3 (N.D. Ind. Jan. 25, 2013) (granting summary judgment “where [plaintiff]
hasn’t presented any evidence identifying any action, policy, or custom that would
support a claim against the City of Fort Wayne, the Police Department, Mayor Henry or
Police Chief York” finding he “can’t rest upon the allegations in his original and
amended complaints, and had to present evidence in an admissible form that, if
believed, would support judgment in his favor.”). The record is devoid of any evidence
that the police department customarily or habitually arrests people in arguably
confusing situations like this one where a person insists the protective order is no
longer in effect. Finally, Clevenger has set forth no evidence showing the alleged
policy, practice or custom caused his alleged constitutional deprivation. See, e.g., Cook v.
Lain, No. 2:10-CV-411-PRC, 2013 WL 866876, at *14 (N.D. Ind. Mar. 7, 2013) (granting
summary judgment in favor of sheriff defendant where plaintiff offered no evidence of
express policy or custom, or that it caused the alleged constitutional deprivation). And
while Officer Church may be considered a policymaker, his actions were justified as
Clevenger’s final claim against the North Webster Defendants is under 42 U.S.C.
section 1985 which provides a cause of action for conspiracies to deprive another of civil
rights protected by the laws of the United States. None of the parties have given any
argument to me about these claims in the complaint, and Clevenger certainly has not set
forth any evidence to show there was a conspiracy. As such, summary judgment is also
appropriate on these claims.
Group Two: the Kosciusko County Sheriff’s Department Defendants
I’ll begin with the claims against Sergeant Shepherd. Clevenger dismissed with
prejudice any excessive force claim against Sergeant Shepherd. [DE 96 at 4.] What
remains is a failure to intervene claim. There is a fundamental problem with this claim.
While it seems that Sergeant Shepherd was present at the scene at the time Clevenger
was taken into custody, Clevenger fails to provide me with any evidence in the record
that Sergeant Sheperd was present during Clevenger’s handcuffing. Indeed, Clevenger
has offered no testimony as to Shepherd’s presence, position, or possible conduct
during the time that Clevenger was handcuffed.
Indeed, Clevenger actually concedes that “[t]he Plaintiff’s testimony fails to
create a reasonable inference that Sergeant Shepherd even witnessed that handcuffing
and the purported level of force.” [DE 96 at 5.] He then asks that I wait to decide this
issue until it could be supplemented from Defendants’ discovery answers which were
due back in March 27, 2017. Id. Clevenger never filed a supplement, and Defendants
tell me that Plaintiff never served that written discovery. [DE 101 at 5.] “[S]ummary
judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept its version of events.”
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (quotation omitted).
To succeed on a failure to intervene claim, a plaintiff must show the officer is
present and fails to intervene to prevent other law enforcement officers from infringing
on his constitutional rights, and must show the officer had a realistic opportunity to
intervene to prevent the harm from occurring. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994). Mere allegations in a complaint and unsupported assertions in a response brief
need not be considered by the Court as evidence at the summary judgment stage. See
Tibbs v. City of Chicago, 469 F.3d 661, 663 n.2 (7th Cir. 2006) (stating mere allegations of a
complaint are not evidence, and contentions must be supported with citations to
admissible evidence at the summary judgment stage). Here, where Clevenger has not
provided me with any evidence at all about the whereabouts of Sergeant Shepherd,
much less shown he had a realistic opportunity to intervene, this claim fails.
I’ll move now to the claims against Sergeant Knafel. Clevenger says that Knafel
violated his Fourth Amendment rights by arresting him without probable cause, but for
reasons explained above, Sergeant Knafel is also protected by qualified immunity.
Sergeant Knafel was present at the school when Central Dispatch orally confirmed the
Protective Order was still intact, and when it faxed a copy of the order to the school.
Like Officer Church, Sergeant Knafel relied upon the confirmation from Central
Dispatch, and had arguable probable cause to believe Clevenger was violating the
Protective Order. Jones, 630 F.3d at 684.
Clevenger also states a claim for excessive force against Sergeant Knafel. It is
well settled that “all claims that law enforcement officers have used excessive force deadly or not - in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). While “the
right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it,” the Fourth Amendment
prohibits the use of excessive force during the execution of a seizure. Id. at 396.
A “police officer’s use of force is unconstitutional if, ‘judging from the totality of
the circumstances at the time of the arrest, the officer used greater force than was
reasonably necessary to make the arrest.’” Fidler v. City of Indianapolis, 428 F. Supp. 2d
857, 862 (S.D. Ind. 2006) (quoting Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (citing
Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)). In evaluating whether the
force used was excessive, the fact-finder must balance the intrusion to the individual
with the government interests at stake. Graham, 490 U.S. at 396. In so doing, the Court
must view the circumstances “from the perspective of a reasonable officer on the scene,
rather than with 20/20 vision of hindsight.” Id. at 396-97. Specific facts to consider in
determining whether a police officer used excessive force include the severity of the
crime, whether the suspect posed an immediate threat to the safety of the officer or
others, and whether the suspect was actively resisting arrest or attempting to evade
arrest by flight. Id. at 396.
I do not believe Sergeant Knafel used excessive force when he slapped
Clevenger’s cell phone out of his hand and then handcuffed him. The incident did
happen at a school, which carries an inherently higher degree of risk considering the
proximity of children and the importance of protecting their safety. While Clevenger
was not committing an egregious offense, the officers did have information to believe
that he was violating an active protective order. Protective orders are very important
and of course I consider it a priority to protect spouses involved in a divorce as well as
children. While it is true that Clevenger did not resist arrest, he did seem to be upset
and argumentative in the video clip I watched.
It’s also true that the officers were argumentative and perhaps didn’t use the best
of judgment. But the actual force used was minimal, as Clevenger concedes that the
only force Sergeant Knafel applied was when he slapped the phone out of Clevenger’s
hand, and then cranked Clevenger’s arm behind his back when handcuffing him. As the
court found in Smith v. Augustine, No. 07 C 81, 2009 WL 481639, at *6 (N.D. Ill. Feb. 25,
2009), “[t]he officers’ acts of leaning her over the vestibule railing and knocking items
out [of] her hands were incidental to her arrest and objectively reasonable.” Moreover,
there is no indication that Knafel used more force than was necessary to handcuff
Clevenger, or that he slammed him against a wall or any other similar action. See
Radjen v. Parrish, No. 2:08-cv-160-PRC, 2009 WL 3060206, at *8 (N.D. Ind. Sept. 21, 2009)
(finding no excessive force where officer “grabbed [plaintiff’s] arms and attempted to
put them behind her to handcuff her.”). In the middle of his opposition memorandum,
Clevenger actually states: “[a]s to the ‘cranking’ of the Plaintiff’s left arm behind his
back. Plaintiff dismisses with prejudice this allegation against Officer Knafel.” [DE 96 at
11.] Because the force used by Sergeant Knafel in arresting Clevenger, removing his cell
phone, and applying handcuffs was reasonable under the circumstances, summary
judgment is proper in favor of the defendants.
Finally, although it is unclear from the complaint and the briefing, to the extent
Clevenger has alleged federal claims against the Kosciusko County Sheriff’s
Department, these also fail as neither Sergeant Shepherd nor Knafel violated federal
Group Three: The School Defendants
Clevenger’s federal claims against the School Defendants are the weakest of the
bunch. Clevenger states that he is dismissing all claims against the School Defendants
“except the claims of false imprisonment and the 42 U.S.C. 1983.” [DE 105 at 1.] “[A]
plaintiff may establish both a § 1983 claim and an Indiana false imprisonment claim
where his freedom of movement was limited or restrained in some way without
probable cause.” Bentz v. City of Kendallville, 577 F.3d 776, 780 (7th Cir. 2009). The
elements of the causes of action are nearly identical, and in this case, it seems Clevenger
is claiming violation of both Indiana and federal law in his false imprisonment claim.
First, it does not seem that Acting Principal Holst limited or restrained
Clevenger’s freedom of movement. She escorted him into an office and asked him to
wait until Officer Church arrived. (Holst Aff. ¶ 14.) There are two doors in that office,
neither of which can be locked from the outside. (Id. ¶ 15.) Clevenger has not provided
any evidence to show he did not consent to being escorted to the office, or that he was
being held against his will. By his admission, Clevenger did not even see if the door
was locked or whether he could leave the room. (Clevenger Aff. ¶ 15.)
Second, let’s suppose that Clevenger could establish a federal claim for false
imprisonment (and I do not believe he can), Holst would still be entitled to qualified
immunity. A principal of a school is a public official who is entitled to qualified
immunity for claims alleged under section 1983. T.V. ex rel. B.V. v. Smith-Green Cmty.
Sch. Corp., 807 F.Supp.2d 767, 786-87 (N.D. Ind. 2011).
Finally, like the other municipalities in this lawsuit, the Wawasee Community
School Corporation and the school cannot be held liable solely under the doctrine of
respondeat superior. Monell, 436 U.S. at 691. Clevenger has not identified any express
policy, common practice, or that a person with final policy-making authority caused a
constitutional injury. Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015).
State Law Claims
Clevenger has also alleged state law claims for assault, battery, false
imprisonment, false arrest, and negligent infliction of emotional distress against the
defendants (although it is unclear from his briefs in opposition if he still intends to
pursue all of these state law claims). The Court has granted judgment in favor of all the
defendants on Plaintiff’s federal claims, which were the sole basis for federal
jurisdiction in this action. The parties are not diverse. Therefore, I must decide whether
to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims.
Upon due consideration, the state law claims are DISMISSED WITHOUT
PREJUDICE because the federal claims have been dismissed prior to trial. 28 U.S.C. §
1367(c)(3); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) (“[I]t is the wellestablished law of this circuit that the usual practice is to dismiss without prejudice
state supplemental claims whenever all federal claims have been dismissed prior to
trial.”); see also Williams v. Fort Wayne Police Dep’t Officers John/Jane Does, No. 1:12-CV202, 2012 WL 6727534, at *3 (N.D. Ind. Dec. 27, 2012).
For the reasons set forth above, the motions for summary judgment [DE 66, 70,
91] are all GRANTED and the Clerk is ORDERED to dismiss the federal claims against
all of the defendants WITH PREJUDICE. Plaintiff’s state law claims against the
defendants are DISMISSED WITHOUT PREJUDICE to refiling in state court. The
motions to strike [DE 85, 108, 115] are all DENIED. The Clerk is ORDERED to CLOSE
ENTERED: August 14, 2017
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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