McAllister v. Burns Harbor Town of et al

Filing 101

OPINION AND ORDER: 81 Motion for Summary Judgment is DENIED as to the Town of Burns Harbor and Jerry L. Price in his official capacity. Signed by Judge Joseph S Van Bokkelen on 7/14/2011. (rmn)

United States District Court
Northern District of Indiana
Hammond Division
FRANK MCALLISTER,
Plaintiff,
v.
TOWN OF BURNS HARBOR;
JERRY L. PRICE, individually and in his
capacity as chief police officer of the Town
of Burns Harbor Police Department;
Defendants.

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Civil Action No. 2:07-CV-141 JVB

OPINION AND ORDER
Plaintiff sued the Town of Burns Harbor and Jerry L. Price, individually and in his
capacity as the Town’s police chief under the Civil Rights Act of 1871, 42 U.S.C. § 1983. This
matter is before the Court on the Town’s second motion for summary judgment, filed by leave of
Court. (See DE 80). 1

A. Background
The facts of this case are set out in this Court’s Opinion and Order on Defendants’ first
motion for summary judgment (DE 52) and will not be repeated here. In that opinion the Court
denied summary judgment to Burns Harbor police chief Jerry Price individually because there
were genuine issues of fact as to whether he used excessive force on Plaintiff during an
encounter on March 1, 2006. The Court also denied summary judgment as to the Town of
Burns Harbor because Defendants admitted in their brief in support of the motion that a police

1

A § 1983 suit against a town official in his official capacity is a suit against the municipality itself. See
Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir.1998). Therefore, the court construes Burns Harbor’s motion to
include any claims made against Defendant Police Chief Price in his official capacity.

chief is the final policymaker for his department.2 Relying on the admission, the Court followed
Supreme Court and Seventh Circuit Court of Appeals holdings that municipal liability under §
1983 can be found if the constitutional injury was caused by a person with final policymaking
authority. See Pembaur v. Cincinnati, 475 U.S. 469, 484 (1986); Calhoun v. Ramsey, 408 F.3d
375, 379 (7th Cir. 2005).
Defendants have now repented of their admission and argue that Chief Price was not a
final policy maker with respect to the actions in question.

B.

Summary Judgment Standard
A motion for summary judgment must be granted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further requires the entry of summary judgment,
after adequate time for discovery, against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the

2
Defendants stated in their brief in support of their first motion for summary judgment: “‘Indiana law
expressly indicates that “a police chief . . . is the final policymaker for his municipal police department.’ Neighbors
Bar Inc. v. City of Washington, 2002 WL 596401 (S.D. Indiana 2002); Eversole v. Steele, 59 F.3d 710, 716 (7th
Cir.1995), citing Indiana Code. § 36-8-3-3(g).” Defs’. Mem. in Supp. of Mot. Summ. J., DE 34, at 20.

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moving party supports its motion for summary judgment with affidavits or other materials, it
thereby shifts to the non-moving party the burden of showing that an issue of material fact exists.
Keri v. Bd. of Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
Rule 56(e) specifies that once a properly supported motion for summary judgment is
made, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set
forth specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
In viewing the facts presented on a motion for summary judgment, a court must construe
all facts in a light most favorable to the non-moving party and draw all legitimate inferences and
resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate
the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the
matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v.
Liberty Lobby, 477 U.S. 242, 249–50 (1986).

C.

Municipal Liability under § 1983

(1)

Legal Standard
“[A] local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execution of a government’s policy or custom . . .
inflicts the injury that the government is responsible under § 1983.” Monell v. Dep’t of Soc. Serv.
of City of N.Y., 436 U.S. 658, 694 (1979). A municipality will only be held liable when its
official policy or practice causes a constitutional violation. Hirsch v. Burke, 40 F.3d 900, 904
(7th Cir. 1994). Accordingly, a plaintiff must show:
(1) an express policy that, when enforced, causes a constitutional deprivation (2) a
widespread practice that, although not authorized by written law or express
municipal policy, is permanent and well settled as to constitute a custom or usage
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with the force of law; or (3) an allegation that the constitutional injury was caused
by a person with final policymaking authority.
Phelan v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006).
Whether an official is a final policymaker with respect to an action is a question of state
law. Eversole v. Steele, 59 F.3d 710, 716. (7th Cir. 1995). “State or local law will always direct
a court to some official or body that has the responsibility for making law or setting policy in any
given area of a local government’s business.” Id. (citations and internal quotations omitted).

(2)

Chief Price’s Status as a Policymaker
Plaintiff has failed to demonstrate any express policy or widespread practice of the Town

of Burns Harbor to establish its liability. Accordingly, his claim against the Town stands or falls
on whether Chief Price was a final policymaker with respect to his encounter with Plaintiff on
March 6, 2006.
Defendants now claim that Indiana Code § 36-8-3-3(g)—the statute they cited to the
Court for the proposition that a police chief is the final policymaker for his municipal police
department in their memorandum in support of the first motion for summary judgment—applies
only to second and third class cities, not to towns, such as Burns Harbor. Defendants argue
initially that under the statutory provision applicable to towns, Indiana Code § 36-8-9-4, a board
of metropolitan police commissioners is the final policy making authority for the police
department, while the police chief is the executive head of the department.3
In his response brief, Plaintiff points out that the Town of Burns Harbor does not have a

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Section 36-8-9-4(d) provides:
The board [of metropolitan police commissioners] may make general and special rules for
the government and discipline of the police department and special and general orders to the
department through the police chief, who is the executive head of the department.

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board of metropolitan police commissioners and relies on Indiana Code § 36-1-1-12, which
includes the police chief of a town in the definition of “upper level policymaking position.” In
their reply brief, Defendants once again refer the Court to statutes that are applicable to second
and third class cities, apparently equating the Town of Burns Harbor, whose population is under
1,000, with a third class city, which is a city with a population of under 35,000.4 Defendants
state that in Burns Harbor the town council is the body that operates as a safety board under
Indiana Code § 36-8-3-1, et seq.,5 and that in this capacity it has adopted general and special
orders, rules, and regulations pertaining to the police department. (DE 95-1, Def.’s Reply in
Supp. of Mot. for Summ. J., Jordan Aff. at 2.6)
The Court is skeptical of this claim. Safety boards are features of cities, not towns. See
Ind. Code § 36-4-9-5. Because the Town of Burns Harbor has neither a safety board nor a board
of metropolitan police commissioners, the statutes applicable to those bodies provide no
guidance. The only statute applicable to police chiefs in all units of local government is § 36-11-12, which designates police chiefs as upper level policymakers. Moreover, even assuming that
the Burns Harbor Town Council operates as a board of metropolitan police commissioners under
§ 36-8-9-4(d), or as a safety board under § 36-8-3-2, according to these statutes, the police chief
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The fact is that under Indiana law, whether a municipality is a town has nothing to do with population, but
depends on whether the municipality was incorporated as a town. See Ind. Code § 36-1-2-21. A town is not simply
a small city. Towns and cities have different forms of government. For example, the executive of a city is a mayor,
while the executive of a town is the president of the town council. See Ind. Code § 36-1-2-5(2) and (4). From the
fact that it calls itself a town and, if its official website may be relied on, it does not have a mayor, see
http://burnsharbor.org (last visited July 1, 2011), the Court assumes that the Town of Burns Harbor was
incorporated as a town.
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Indiana Code § 36-8-3-1 provides: “This chapter applies to second and third class cities. It also applies to
other units, where specifically indicated.” Indiana Code § 36-8-3-2 is nearly identical to § 36-8-9-4(d) except that it
sets out the powers and duties of safety boards of cities, including the power to adopt rules for the government and
discipline of the police department and to adopt general and special orders to the police department “through the
chief of the department.”
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Jane Jordan is the Clerk-Treasurer of the Town of Burns Harbor.

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shares policymaking responsibilities with the board. In issuing general and special orders, the
police chief speaks for the board, in that both statutes provide that the board adopts general and
special orders to the department “through the chief of the department.” Nothing in the statutes or
cases Defendants cite suggests that anyone other than the police chief has policymaking
authority with respect to the way an arrest is conducted. Nor have they cited any ordinance, rule,
or order of the Burns Harbor Town Council that governs arrests.
Defendants argue that Chief Price was no different than any patrol officer when he
responded to the dispatch call on March 1, 2006, and therefore cannot be considered a policy
maker with respect to the encounter with Plaintiff. The Court disagrees. The fact is that he was
the police chief responding to the call. Chief Price’s decision to handle Plaintiff’s arrest the way
he did was a deliberate choice to follow a course of action made from among various alternatives
by the official responsible for establishing final policy with respect to the subject matter in
question, which is policymaking. See Pembaur v. Cincinnati, 475 U.S. 469, 484 (1986).
Vodak v. Chicago, 639 F.3d 738, 748 (7th Cir. 2011), negates Defendants’ contention
that a final policymaker must be making rules to govern future conduct before a municipality
may be held liable for his decisions. In that case, several thousand people were engaged in a
march in downtown Chicago against the second Iraq war. The superintendent of police for the
city of Chicago was monitoring the march from his headquarters. He was found to be a final
policy maker with respect to orders he approved for mass arrests of demonstrators. . According
to the court, the superintendent was the City so far as the arrests were concerned. Id. Thus an ad
hoc decision of a final policymaker can serve as a basis for municipal liability.
Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), on which Defendants rely, does not
dictate a different result. In that case the plaintiffs alleged that Rice, the Chicago superintendent
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of police, made discriminatory promotions and demotions. The Court of Appeals for the
Seventh Circuit held that he was not a final policymaker with respect to the actions because
ordinances applicable to the police department unequivocally banned racial and political
discrimination. Id. at 399. The court noted that while the city council is usually the policymaker
for a municipality, executive officials may have the power to set policy when the legislature is
silent. Id. That is the case here.
Nor is Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d 464 (7th Cir. 2001),
cited by Defendants, controlling. There the court held that a school superintendent and principal
did not have final policymaking authority under Wisconsin law. No state statute designated
these officials as upper level policymakers, which is not the case here.

D.

Conclusion
Chief Price is was a final policymaker in his interaction with Plaintiff on March 1, 2006.

Accordingly, Defendants’ motion for summary judgment (DE 81) is DENIED as to the Town of
Burns Harbor and Jerry L. Price in his official capacity.
SO ORDERED on July 14, 2011.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge

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