Washington v. Schumann et al
Filing
143
OPINION AND ORDER granting 135 Motion for Summary Judgment on all claims in favor of City of East Chicago Police Department, Officer Danny Schumann (in his individual capacity), Mayor Anthony Copeland (in his official capacity), and Police Chief A ngelo Machuca Jr. (also in his official capacity). The Court also GRANTS Defendants request for attorney fees under 42 U.S.C § 1988. Defendants shall file with the Court, a detailed itemization of legal services rendered and reasonable attorney fees charged by their attorneys by October 21, 2013. All that remains of this case are Defendants counterclaims for attorney fees under Ind. Code §§ 34-13-3-21 and 34-13-4-4, which will be the subject of a status hearing the Court will set by a separate order. Signed by Magistrate Judge Paul R Cherry on 9/19/13. cc:pltf via email (jfwashington2012@yahoo.com)and regular mail (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JONATHAN FARLEY WASHINGTON,
Plaintiff,
v.
DANNY SCHUMANN, et al.,
Defendants.
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Cause No.: 2:09-CV-270-PRC
OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment [DE 135], filed on April
15, 2013, by Defendants City of East Chicago Police Department, Officer Danny Schumann (in his
individual capacity), Mayor Anthony Copeland (in his official capacity), and Police Chief Angelo
Machuca Jr. (also in his official capacity).
I. Procedural Background
Plaintiff Jonathan Washington filed a Complaint in the United States District Court for the
Northern District of Indiana on September 4, 2009. The District Court granted him leave to proceed
in forma pauperis. Because he is in prison, the District Court also screened his Complaint pursuant
to 28 U.S.C. § 1915A(b)(1), allowing him to proceed on four counts of his original Complaint.
Count I is a Fourth Amendment excessive force claim brought under 28 U.S.C. § 1983. Counts II–IV
each allege state law claims: Count II alleges assault and battery; Count III alleges negligence and
gross negligence; and Count IV alleges negligent and intentional deprivation of rights.
Defendants filed an Answer, Affirmative Defenses, and Counterclaims on February 18, 2010.
Defendants then filed a Motion for Summary Judgment on July 1, 2011, which this Court struck on
July 28, 2011, for failure to comply with Local and Federal Rules. Defendants filed another Motion
for Summary Judgment on August 2, 2011, along with a Statement of Material Facts as to Which
There is no Genuine Issue, a Memorandum in Support, and a Notice of Summary Judgment Motion.
Washington filed his Response, a Statement of Material Uncontested Facts, and a Memorandum in
Support on October 19, 2011. The Court denied that motion with leave to refile on November 17,
2011.
On April 15, 2013, Defendants again filed a motion for Summary Judgment along with a
Memorandum in Support, a Statement of Material Facts as to Which There is no Genuine Issue, and
a Notice of Summary Judgment Motion. Washington filed a response on May 22, 2013, where he
asked the Court to consider his prior filings in opposition to summary judgment as his response to
the instant Motion for Summary Judgment. The Court, sua sponte, granted that request on July 11,
2013.
Both parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
II. Summary Judgment Standard
The Federal Rules of Civil Procedure mandate that motions for summary judgment be
granted “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). Rule 56 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) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is appropriate—in fact, is
mandated—where there are no disputed issues of material fact and the movant must prevail as a
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matter of law. In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(citations and quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the 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, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’—that
is, pointing out to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof
at trial, the moving party is not required to support its motion with affidavits or other similar
materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus.,
Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254,
1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary
judgment with affidavits or other materials, and, if the moving party has “produced sufficient
evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts
to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill
Assoc., 914 F.2d 107, 110–111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s
Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e)
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provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled to it . . . .”
Fed. R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986).
Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material facts,” but must “come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting 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 in favor
of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.
2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). 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. See Anderson,
477 U.S. at 249–50.
III. Material Facts
On the morning of October 25, 2007, just before 10:00 a.m., Defendant Danny
Schumann—an East Chicago, Indiana police officer—spotted a red Chevy Impala parked near
145th Street and Homerlee Avenue in East Chicago, Indiana. The car matched the description of one
recently reported stolen. Officer Schumann pulled up in his fully marked police cruiser, got out, and
began walking toward the Chevy. As he drew nearer, he saw a man—Johnathan
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Washington—sitting in the driver’s seat. They made eye contact. Officer Schumann tried to speak
with Washington, who began rummaging in the middle console of the car. Washington then gunned
the accelerator and drove at Officer Schumann, ignoring his shouts to stop. Fearing for his life,
Officer Schumann jumped aside and shot at Washington six times with his police-issued fortycaliber Beretta, hitting him twice. Washington crashed the Impala into a car parked in front of him,
got out, and was eventually arrested. Paramedics then took him to St. Catherine Hospital in East
Chicago, Indiana, where he underwent emergency surgery for his wounds.
As a result of the incident, Washington was charged with attempted murder, attempted
aggravated battery, auto theft, resisting law enforcement, and attempted battery. He eventually pled
guilty to the attempted battery charge and was sentenced to eight years imprisonment. The Indiana
Court of Appeals affirmed his sentence.
IV. Analysis
Defendants seek summary judgment on all of Washington’s federal and state claims.
A. Section 1983
Washington’s § 1983 claim is that Officer Schumann violated Washington’s constitutional
rights when he shot him. Claims of “excessive force in an arrest, investigatory stop, or other
‘seizure’ of [one’s] person” are analyzed under the Fourth Amendment’s objective reasonableness
standard. Graham v. Connor, 490 U.S. 386, 388 (1989); Scott v. Edinburg, 346 F.3d 752, 756 (7th
Cir. 2003); see also U.S. Const. amend IV. “The officer’s subjective belief or motivations are
irrelevant.” Scott, 346 F.3d at 756 (citing Graham, 490 U.S. at 397). What matters under the
Constitution is the perspective of a reasonable officer at the scene. Graham, 490 U.S. at 396.
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For deadly force to be reasonable, “the officer must have probable cause to believe that the
suspect poses a threat of serious physical harm to the officer or to others.” Tennesee v. Garner, 472
U.S. 1, 7 (1985); Scott, 346 F.3d at 756. And, if feasible, the officer must give some warning first.
Garner, 472 U.S. at 7.
Washington disputes a number of issues surrounding the shooting. In his affidavit and many
other places throughout his briefing and accompanying documents, Washington states that he was
sitting in the car when Officer Schumann “without warning or explanation maliciously and
recklessly fired multiple gunshots . . . directly at” Washington, hitting him twice. Though
Washington never explicitly denies trying to run Officer Schumann down, these statements, when
viewed in the light most favorable to him, imply as much. This contradicts the earlier factual
Stipulation he signed as part of his state court guilty plea to the charge of attempted battery. In that
Stipulation, Washington admitted that he
gunned the accelerator of the Impala and drove it towards [Officer] Schumann and
ignored [Officer] Schumann’s shouts to stop. [Officer] Schumann had to jump out
of the way of the Impala, and fearing for his life, [Officer] Schumann discharged his
service weapon at the approaching Impala.
Def. Br., Exh. 11, p. 1. The Stipulation is hearsay but is nevertheless admissible. See Fed. R. Evid.
803(22). As Judge Posner, writing for the United States Court of Appeals for the Seventh Circuit,
has explained, “just as an affidavit in which a witness tries to retract admissions that he made earlier
in his deposition is normally given no weight in a summary judgment proceeding, . . . so a witness
should not be permitted by a subsequent affidavit to retract admissions in a plea agreement.” Scholes
v. Lehmann, 56 F.3d 750, 762 (7th Cir. 1995) (citations omitted). Washington is thus bound by his
earlier statement.
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The facts Washington admits in his Stipulation are sufficient to show that Officer
Schumann’s use of deadly force was justified. The prospect of being run over by a car would put a
reasonable officer in fear of death or serious injury. See generally Soriano v. Town of Cicero, No.
10–3352, 2013 WL 1296780 (7th Cir. Apr. 2, 2013) (affirming summary judgment on an excessive
force claim where the police shot the plaintiff after he “bump[ed]” his van into an officer trying to
arrest him following a car chase). Officer Schumann’s split-second decision to use deadly force to
protect himself was hence reasonable and did not violate Washington’s constitutional rights.
1. Qualified Immunity
Officer Schumann argues that he is entitled to qualified immunity from civil suit on the
constitutional claims brought against him in his individual capacity. “[G]overnmental actors
performing discretionary functions enjoy qualified immunity and are ‘shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” In re Escobedo v. Bender, 600 F.3d 770, 778
(7th Cir. 2010) (quoting Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982))).
In determining whether a state actor is shielded from liability by qualified immunity, a court
must consider “whether, taking the facts in the light most favorable to the plaintiff, the officers’
conduct violated a constitutional right,” and “whether the particular constitutional right was ‘clearly
established,’ at the time of the alleged violation.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). Courts have discretion about which of the two inquiries to address first. Id. (citing Pearson
v. Callahan, 555 U.S. 223 (2009)). As discussed above, Officer Schumman did not violate any of
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Washington’s clearly established constitutional rights. Officer Schumann is accordingly entitled to
qualified immunity (and thus summary judgment) on the § 1983 claim.
2. Monell
Washington also alleges that the City of East Chicago Police Department, along with Mayor
Anthony Copeland and Police Chief Angelo Machuca Jr. (in their official capacities), had an
unconstitutional approach to training and supervising East Chicago police officers. The official
capacity claims are practically claims against the Police Department and are governed by the
municipal liability standards laid down in Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978). There is no respondeat superior liability under Monell; instead,
municipalities are only liable “when execution of a government’s policy or custom . . . inflicts the
injury.” Id. at 694. As discussed above, Washington suffered no constitutional injury, and there is
consequently no liability. Summary judgment is thus also appropriate in favor of the police
department, the police chief, and the mayor.
B. The Indiana Tort Claims Act
When the federal claims are dismissed before trial, “the presumption is that the court will
relinquish federal jurisdiction over any supplemental state-law claims.” Al’s Serv. Ctr. v. BP Prods.
N. Am., Inc., 599 F.3d 720, 727 (7th Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). But when, as here,
“it is clearly apparent how the state claim is to be decided,” it is appropriate for a federal court to
retain jurisdiction. Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007); see also Dargis v.
Sheahan, 526 F.3d 981, 990 (7th Cir. 2008); Whitely v. Moravec, 635 F.3d 308, 311 (7th Cir. 2011).
The pendent state court claims in this case are assault and battery (Count II), negligence and
gross negligence (Count III), and negligent and intentional deprivation of rights (Count IV).
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Defendants argue that these claims are barred due to Washington’s failure to comply with the notice
requirement of the Indiana Tort Claims Act (ITCA), Ind. Code § 34-13-3-1 et seq. That law bars
claims against political subdivisions unless the plaintiff notifies the governing body of the political
subdivision along with the Indiana political subdivision risk management commission within 180
days after the loss occurred. Ind. Code § 34-13-3-8.
Notice 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
State, Indiana Dep’t of Highways v. Hughes, 575 N.E.2d 676, 677–78 (Ind. Ct. App. 1991)). The
governmental entity has ninety days after a claim is filed to consider and approve or deny the claim.
Ind. Code § 34-13-3-11. A would-be plaintiff may only pursue a lawsuit to the extent that the
governmental agency has denied his claim. Ind. Code § 34-13-3-13.
Under the ITCA, the term “political subdivision” includes municipal corporations (e.g.,
police departments and cities) as well as the employees who work for them. See Davidson, 715
N.E.2d at 34; Alexander v. City of South Bend, 256 F. Supp. 2d 865, 875 (N.D. Ind. 2003). It also
covers employees like Officer Schumann sued in their individual capacity so long as they were
acting within the scope of their employment. Chang v. Purdue Univ., 985 N.E.2d 35, 51 (Ind. Ct.
App. 2013) (quoting Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind. Ct. App. 1996)). Accordingly,
since all Defendants here are municipal corporations or their employees, Washington needed to give
them each notice before pursuing his state law claims.
Non-compliance with the notice requirement has on occasion been excused “on theories of
substantial compliance, waiver, and estoppel.” Brown v. Alexander, 876 N.E.2d 376, 381 (Ind. Ct.
App. 2007) (citing Daugherty v. Dearborn Cnty., 827 N.E.2d 34, 36 (Ind. Ct. App. 2005); City of
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Tipton v. Baxter, 593 N.E.2d 1280, 1282 (Ind. Ct. App. 1992)). But once a defendant raises the
issue, “the burden shifts to the plaintiff to prove compliance.” Alexander v. City of South Bend, 256
F. Supp. 2d 865, 875 (N.D. Ind. 2003).
Washington nowhere claims that he filed a Tort Claim Notice. Nor has he offered any
response to Defendants’ argument that his state law claims are barred for want of compliance with
the ITCA. See Daugherty, 827 N.E.2d at 36. Summary judgment is thus appropriate as to Counts
II, III, and IV of Washington’s Complaint.
V. Attorney Fees
Defendants seek an award of attorney fees and related expenses under 42 U.S.C. § 1988(b).
Section 1988 gives courts discretion to award attorney fees to prevailing parties in a number of
different types of cases, including ones brought under § 1983. Even though the “statute specifies the
award of such fees is within the court’s discretion, it is clear that prevailing defendants have a much
harder row to hoe than do prevailing plaintiffs.” Roger Whitmore’s Auto. Servs., Inc. v. Lake C’nty,
Ill., 424 F.3d 659, 675 (7th Cir. 2005). The Supreme Court has explained that while a prevailing
plaintiff “is to be awarded attorney fees in all but special circumstances,” a prevailing defendant is
not entitled to an award of fees unless a court finds that the plaintiff’s claim was “frivolous,
unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 422 (1978). This standard has been
consistently applied to those cases arising under § 1983. See Hughes v. Rowe, 449 U.S. 5, 14–15
(1980); Roger Whitmore’s Auto. Servs., 424 F.3d at 675. The Seventh Circuit Court of Appeals has
held that a suit is frivolous when “it has no reasonable basis, whether in fact or in law.” Roger
Whitmore’s Auto. Servs., 424 F.3d at 675.
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Under § 1988, a defendant is not required to show either subjective or objective bad faith on
the part of the plaintiff in order to recover attorney fees. Munson v. Milwaukee Bd. of Sch. Dirs., 969
F.2d 266, 269 (7th Cir. 1992). Rather, a defendant must show that a plaintiff’s action is “meritless
in the sense that it is groundless or without foundation.” Hughes, 449 U.S. at 14. Accordingly, the
Seventh Circuit Court of Appeals has instructed that “when a civil rights suit is lacking in any legal
or factual basis . . . an award of fees to the defendant is clearly appropriate to deter frivolous filings
and to ensure that the ability of the courts to remedy civil rights violations is not restricted by
dockets crowded with baseless litigation.” Munson, 969 F.3d at 269 (citation omitted).
That a claim does not survive summary judgment does not alone make it frivolous.
Christiansburg Garment Co., 434 U.S. at 421–22; Roger Whitmore’s Auto. Servs., 424 F.3d at 676;
Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999) (“There is a significant difference between
making a weak argument with little chance of success . . . and making a frivolous argument with no
chance of success.”). Washington’s case is more than just weak. It is founded on nothing more than
Washington’s refrain that Officer Schumann “without warning or explanation maliciously and
recklessly filed multiple gunshots . . . directly at” Washington. As explained above, this claim runs
directly contrary to his earlier Stipulation and fails as a matter of law. By bringing and persisting
in this lawsuit, Washington has wasted not only his time, but the time and money of Defendants and
this Court.
In light of this, the Court finds that Washington’s claims are frivolous, unreasonable,
groundless, meritless, without foundation, and have no reasonable basis in law or fact. Accordingly,
the Court grants the Defendants’ request for an award of reasonable attorney fees under section §
1988.
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VI. CONCLUSION
For these reasons, the Court hereby GRANTS the Motion for Summary Judgment [DE 135],
granting summary judgment on all claims in favor of City of East Chicago Police Department,
Officer Danny Schumann (in his individual capacity), Mayor Anthony Copeland (in his official
capacity), and Police Chief Angelo Machuca Jr. (also in his official capacity). The Court also hereby
GRANTS Defendants’ request for attorney fees under 42 U.S.C § 1988. Defendants shall file with
the Court, a detailed itemization of legal services rendered and reasonable attorney fees charged by
their attorneys by October 21, 2013.
All that remains of this case are Defendants’ counterclaims for attorney fees under Ind. Code
§§ 34-13-3-21 and 34-13-4-4, which will be the subject of a status hearing the Court will set by a
separate order.
So ORDERED this 19th day of September, 2013.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
Plaintiff, pro se
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