Goodman et al v. United States of America et al

Filing 353

OPINION AND ORDER The court (1) GRANTS the FBI Defendants Motion for Summary Judgment DE # 327 ;(2) DENIES Remaining Hammond Defendants Motion for Summary JudgmentDE # 321 as to Count III against Rudy Grasha and Brian Miller, Count V against Brian Miller, Count VIII against the City of Hammond for false arrest, and Count IX against the City of Hammond for false arrest;(3) Otherwise GRANTS the Remaining Hammond Defendants Motion for Summary Judgment DE # 321 ; (4) DIRECTS the Clerk to dismiss defendants Christopher Crocker, Carrie Landau, Christopher Soyez, Lori Warren, Christopher Berdine, Ralph Bogie, Robert Bunner, Raymond Finley, Officer Edward, John Ratajczak, Thomas Strabavy, Patrick Vicari, and Timothy Walczak from this case, beca use no claims remain pending against them; (5) DIRECTS the clerk to dismiss plaintiff Roy Goodman, Jr. from this case, as summary judgment has been granted on all of his claims; and (6) ORDERS the parties to file a joint status report regarding their willingness to engage in a settlement conference before a Magistrate Judge by October 20, 2017. Signed by Senior Judge James T Moody on 9/29/17. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROY GOODMAN JR.,
ROY GOODMAN III,
RENEE GOODMAN,
RENIECE GOODMAN,
Plaintiffs,
v.
ADAM CLARK, et al.,
Defendants.

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No. 2:09 CV 355

OPINION AND ORDER
This matter is before the court on defendants City of Hammond, Christopher
Berdine, Ralph Bogie, Robert Bunner, Raymond Finley, Rudy Grasha, Brian Miller (also
incorrectly sued as “Officer Edward”), John Ratajczak, Thomas Strabavy, Patrick Vicari,
and Timothy Walczak‘s (“the Remaining Hammond Defendants”) motion for summary
judgment (DE # 321) and defendants Christopher Crocker, Carrie J. Landau,
Christopher Soyez, and Lori Warren’s (“the FBI Defendants”) motion for summary
judgment (DE # 327). Plaintiffs filed responses to the two motions. (DE ## 335, 336.)
The Remaining Hammond Defendants filed a reply brief (DE # 342), as did the FBI
Defendants (DE # 341). Accordingly, both summary judgment motions have been fully
briefed and are ripe for ruling.

I.

BACKGROUND1
On December 24, 2007, plaintiff Roy Goodman, Jr., was present at the River Oaks

Shopping Center in Calumet City, Illinois, with his family members: daughter Reniece
Goodman, son Roy Goodman, III, and wife Renee Goodman. (DE ## 323-11 at 49; 32312 at 23; 323-14 at 27–28.) Roy Goodman, III, and Reniece Goodman were admittedly
present in the JC Penny store at the River Oaks Center that day. (DE ## 323-12 at 23;
323-13 at 20.)
That same day, an armed robbery occurred at the JC Penny store. (DE # 323-1 at
7.) After the robbery, a federal arrest warrant was issued for Roy Goodman, Jr., and a
federal search warrant was issued for his residence at 5623 Maywood in Hammond,
Indiana. (DE # 323-9 ¶ 4.) Both of the warrants were related to the armed robbery at the
JC Penny store. (DE ## 323-1 at 6; 323-8 ¶ 3.)
The FBI Defendants that remain in the case were each assigned to the Chicago
Illinois South Resident Agency (“South RA”). (DE ## 328-4 ¶ 1; 328-5 ¶ 1; 328-6 ¶ 1; 3287 ¶ 1.) After obtaining an arrest warrant for Roy Goodman, Jr., agent Lori Warren, from
the South RA, sought assistance from the Indianapolis Field Division to execute the
warrants in Hammond, Indiana. (DE # 328-1 ¶¶ 4–5.) Ted May, an FBI agent from the
Indianapolis division, arranged the forces to be used for the execution of the warrants.
(Id. ¶¶ 1, 8.) May contacted the Hammond Police Department to ask their SWAT team
1

In the summary that follows, the court refers only to undisputed facts, or, if
there is a dispute, notes that it exists. This summary provides an overview. Additional
relevant undisputed facts will be referred to in the analysis that follows.
2

to make the initial entry into the residence for the search and arrest of Roy Goodman, Jr.
(Id. ¶ 8.)
Defendant Brian Miller was the chief of police of the Hammond Police
Department in Hammond, Indiana at the time of the events at issue in this case. (DE
# 323-8 ¶ 1.) Miller asserts he was contacted by the FBI, when it sought assistance in
executing the warrants. (Id. ¶ 4.) He was informed that Roy Goodman, Jr., was “armed
and dangerous” and that Roy Goodman, III was “possibly involved” in the armed
robbery. (Id.)
On December 28, 2007, members of the Hammond Police Department’s SWAT
unit, also known as the tactical unit, made the initial entry into the residence at 5623
Maywood in Hammond, Indiana. (DE # 323-9 ¶¶ 4, 7.) Ralph Bogie, a Hammond police
officer, asserts that one of the Hammond SWAT officers knocked on a door at the rear
of the house, but no one responded. (Id. ¶ 12.) The door was then forced open. (Id.) One
of the officers, potentially Christopher Berdine, deployed a diversionary, or
“flash-bang” device in the rear of the residence and in the basement. (Id. ¶¶ 13, 16–17;
335-11 at 3.)
Plaintiffs were all in the residence, but they were upstairs in bedrooms at this
time. (DE ## 323-9 ¶ 13; 335-9 at 5–6, 12; 335-13 at 7–8.) Following the use of the
flash-bang devices, they went downstairs and were handcuffed. (DE ## 335-8 at 6–7;
335-9 at 5, 17; 335-13 at 8–9; 335-14 at 12.) Roy Goodman, Jr., asserts that he was

3

slammed against a wall of his house by officer Ray Finley. (DE ## 335-14 at 18–20; 33515.) The FBI then took him into custody. (DE # 323-8 ¶ 9.)
Additionally, the FBI and the Calumet City Police Department asked Miller “to
have the Hammond Police Department hold Roy Goodman, III, Renee Goodman and
Reniece Goodman at the Hammond Police Department’s facilities so that they could be
interviewed by the FBI and the Calumet City Police Department.” (Id.) Plaintiffs assert
that Defendant Rudy Grasha, a Hammond police officer, removed plaintiff Roy
Goodman, III, from the residence. (See DE ## 335 at 4; 299-1; 335-1 ¶ 10.) Plaintiffs
Reniece, Roy, III, and Renee assert that they were then taken to the Hammond Police
Department’s facilities. (DE ## 323-13 at 13–14; 335-8 at 12–13.) Reniece asserts they
were in handcuffs at the facility, and they were fingerprinted at the facility. (DE ## 2991; 335-8 at 12–13.) Reniece asserts that she was placed into a cell by herself and then
questioned. (DE # 335-8 at 13.)
Plaintiffs eventually filed suit against multiple defendants. The only defendants
remaining in the case are the Remaining Hammond Defendants and the FBI
Defendants. In their fourth amended complaint (DE # 151), plaintiffs bring seven claims
against the Remaining Hammond Defendants and two claims against the FBI
Defendants. This includes claims filed under both Indiana law and federal law. (See id.)
All defendants have now moved for summary judgment. (DE ## 321, 327.)

4

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 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). “[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 matter of law. In other
words, the record must reveal that no reasonable jury could find for the non-moving
party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘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. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
5

for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).
III.

DISCUSSION
A.

The Remaining Hammond Defendants’ Motion for Summary Judgment

Multiple claims remain against the Remaining Hammond Defendants in
plaintiffs’ fourth amended complaint: the excessive force claim (Count I), the false arrest
claim pursuant to the Fourth Amendment (Count III), the false arrest claim pursuant to
state law (Count IV), the conspiracy claim (Count V), the malicious prosecution claim
(Count VII), the “claim against the City of Hammond” (Count VIII), and the respondeat
superior claim against the City of Hammond (Count IX). (DE # 151.) The Remaining
Hammond Defendants have moved for summary judgment on all of these claims. (See
DE ## 321, 322.) The court will discuss each claim, in turn.
i.

Excessive Force Claim: Flash-Bang Devices

All four plaintiffs bring a claim for excessive force (Count I) pursuant to the
Fourth Amendment. (DE # 151 at 6.) This claim consists of two theories, the first of
which pertains to the use of flash-bang devices during the entry into plaintiffs’
residence. (See DE # 151 ¶ 10.) Although the complaint alleged that all of the Hammond
Officers (all of the Remaining Hammond Defendants besides the City of Hammond)
used these devices (see id.), plaintiffs now only maintain this claim against Christopher

6

Berdine. (DE # 335 at 7.) Berdine is the only Hammond Officer who admits he “may”
have deployed a flash-bang device. (DE # 335-11 at 3.)
The constitutional measure of an officer’s use of force under the Fourth
Amendment is whether the officer’s actions were “‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).
“The ‘reasonableness’ of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.
at 396. This reasonableness determination requires “a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing government interests at stake.” Id. (internal quotation marks omitted).
In a prior order in this case, the court summarized the Seventh Circuit’s position
on the use of flash-bang devices:
The Seventh Circuit has stated that flash-bang devices may
not be appropriate in every case, or even in most cases.
Estate of Escobedo v. Bender, 600 F.3d 770, 784 (7th Cir. 2010);
Molina v. Cooper, 325 F.3d 963, 973 (7th Cir. 2003). Their use
can be reasonable if the officers have concern for their
personal safety because they know that the defendant is
dangerous and has access to a weapon and if the officers
know that there is not a risk to other people. Id.
Goodman v. Clark, No. 2:09 CV 355, 2011 WL 3101769, at *13 (N.D. Ind. July 25, 2011). In
Molina, the Seventh Circuit found no constitutional violation where officers had
information that the suspect had a criminal record including aggravated assault, officers
had information that the suspect was at home with access to weapons, the devices were

7

deployed away from other innocent occupants, and no one was harmed by their use.
Molina, 325 F.3d at 973; see also United States v. Folks, 236 F.3d 384, 388 n. 2 (7th Cir. 2001)
(noting that the use of flash-bangs was “sufficiently careful” where police looked into a
residence to make sure no one would be injured by a flash-bang device and police
carried a fire extinguisher to prevent damage from the devices).
The present case is analogous to Molina. The undisputed facts of this case
indicate that Roy Goodman, Jr. was suspected of the severe crime of armed robbery,
using a firearm. (DE # 323-8 ¶ 3.) The search warrant further indicated that the deadly
weapon used in the crime may have been present at the residence. (Id. ¶ 4.) Along with
the apparent risks to the officers, it is undisputed that the devices were deployed
downstairs while plaintiffs were upstairs, away from the devices. (DE ## 323-9 ¶ 13;
335-9 at 5–6, 12; 335-13 at 7–8.) The team also had fire suppression equipment at the
ready. (DE # 323-9 ¶ 13.) Thus, the risk to the occupants was limited as compared to the
risk to the officers.
Accordingly, the court finds defendants’ (specifically, Berdine’s) actions to be
reasonable. Summary judgment is appropriate on this claim.
ii.

Excessive Force Claim: All Other Force

Plaintiffs second excessive force theory, in their fourth amended complaint,
relates to allegations that all of the Hammond Officers “struck and/or grabbed”
plaintiffs. (DE # 151 ¶ 10.) Defendants move for summary judgment on this claim. (DE
# 322 at 19.) In their response on this issue, plaintiffs only object to the entry of
8

summary judgment as to Roy Goodman, Jr.’s claim against Defendant Ray Finley for
slamming him into a wall of his house. (DE # 335 at 7.) Therefore, summary judgment is
appropriate, as an initial matter, on all excessive force claims unrelated to this alleged
slamming.
Defendants assert qualified immunity on this excessive force claim. (DE # 322 at
19.) When confronted with an assertion of qualified immunity, the court must address
two questions: (1) “whether the plaintiff’s allegations make out a deprivation of a
constitutional right” and (2) “whether the right was clearly established at the time of
defendant’s alleged misconduct.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
The court may choose which of these two prongs to address first. Pearson v. Callahan,
555 U.S. 223, 236 (2009).
Once the defense of qualified immunity has been raised, it becomes plaintiffs’
burden to defeat it. Mannoia v. Farrow, 476 F.3d 453, 457 (7th Cir. 2007). However, Roy
Goodman, Jr. has not made any attempt to establish that his right not to be “slammed”
was clearly established.2 At most, plaintiffs merely cite the general excessive force
standard of Graham and a decision that was entered several years after the execution of
the warrant in the case at hand (Howard v. Ealing, 876 F. Supp. 2d 1056 (N.D. Ind. 2012)).
(See DE # 335 at 6–7.) Neither of those decisions can act as a closely analogous case
establishing (at the time of the alleged slamming) that Finley’s conduct was

2

In fact, plaintiffs do not directly address qualified immunity anywhere in their
response. (See DE # 335.)
9

unconstitutional. See Siebert v. Severino, 256 F.3d 648, 654–55 (7th Cir. 2001). Nor does
any of plaintiffs’ meager analysis on this claim indirectly convince the court that the
violation was so obvious to be clearly established.
On the other hand, defendants cite at least one case which, on its own, calls into
question whether the violation was clearly established. See Sow v. Fortville Police Dep’t,
636 F.3d 293, 304 (7th Cir. 2011) (officer did not use excessive force where the officer
pushed the plaintiff after he was arrested, causing him to bump his head on a squad
car). Plaintiffs have not met their burden as set forth above. Thus, defendants are
entitled to qualified immunity on this claim.
iii.

False Arrest Claim Pursuant to the Fourth Amendment

All four plaintiffs assert a false arrest claim (Count III) pursuant to the Fourth
Amendment against all of the Hammond Officers. (DE # 151 at 7.) However, in their
response brief, plaintiffs only oppose summary judgment on this claim as to two
defendants. (DE # 335 at 7.) They now assert only that Defendant Brian Miller falsely
arrested plaintiffs Reniece, Roy, III, and Renee Goodman, and Defendant Rudy Grasha
falsely arrested Roy Goodman, III. (Id. at 7–8.) Therefore, as an initial matter, summary
judgment is granted on Roy Goodman, Jr.’s Fourth Amendment false arrest claim and
on any false arrest claims against defendants other than Miller and Grasha.
Although plaintiffs’ present their claim as a Fourth Amendment “false arrest”
claim, the language of the Fourth Amendment actually prohibits unreasonable seizures,
rather than false arrests. See Caldwell v. Jones, 513 F. Supp. 2d 1000, 1006 (N.D. Ind. 2007)
10

(“Only government activity that constitutes either a ‘search’ or a ‘seizure’ is regulated
by the Fourth Amendment.”); see also Mudd v. City of New Haven, Ind., 196 F. Supp. 3d
882, 891 (N.D. Ind. 2016) (interpreting a false arrest claim brought under the Fourth
Amendment as a claim for unreasonable seizure of person).
Consequently, to establish a constitutional violation under the Fourth
Amendment, plaintiffs must demonstrate (1) that defendants’ conduct constituted a
“seizure” and, if so, (2) that the seizure was “unreasonable.” Caldwell, 513 F. Supp. 2d at
1006. A person has been “seized” under the Fourth Amendment if “in view of all the
circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave.” Id. “A seizure thus occurs when a government actor by means
of physical force or show of authority terminates or restrains an individual’s freedom of
movement through means intentionally applied.” Id. (internal quotation marks
omitted).
Defendants argue that they did not “arrest” plaintiffs (other than Roy, Jr.). (DE
# 322 at 9-10.) However, it is not their definition of the action that matters. Miller admits
that the members of the Goodman family were escorted from their residence. (DE # 3351 ¶ 10.) Although Miller asserts this was not an arrest of Reniece, Roy, III, or Renee, he
admits that he was asked to hold them at the Hammond Police Department’s facilities.
(Id. ¶ 9.) This evidence coincides with the assertions of the plaintiffs that they were
handcuffed, transported to the City of Hammond Police Department’s facilities, and
held for questioning. (DE ## 323-13 at 13–14; 335-8 at 12–13.)
11

As to defendant Grasha, plaintiffs present a photograph (DE # 299-1) showing
him restraining Roy, III, in the residence, and point to Grasha’s own affidavit which
identifies him as the individual in the photograph (DE # 335-7 ¶ 7.) This alone is not
enough for liability, as “officers executing a search warrant have categorical authority to
detain any occupant of the subject premises during the search.” United States v. Jennings,
544 F.3d 815, 818 (7th Cir. 2008). However, Miller himself asserts that Grasha was
directed to escort members of the Goodman family from the residence. (DE # 335-1
¶ 10.) This in combination with the evidence that plaintiffs were taken from their
residence to the Hammond Police Department’s facilities, raises a genuine issue of fact
as to whether Grasha did more than simply hold plaintiffs during the execution of the
search warrant.
The evidence, when viewed in a light most favorable to plaintiffs, indicates that
Miller and Grasha brought plaintiffs away from the location that was subject to the
warrant, took them to a police station, and held them there. Given this evidence, a
reasonable jury could find that Miller and Grasha intentionally used physical force to
restrain plaintiffs’ freedom of movement to bring them to the Hammond police station
for questioning where they did not feel free to leave. A genuine issue of fact remains as
to whether Miller seized Reniece, Roy, III, and Renee Goodman and whether Grasha
seized Roy, III.
Defendants also argue that these alleged seizures were not unreasonable because
plaintiffs’ cannot establish that defendants lacked probable cause to arrest them. (DE
12

# 322 at 10.) An arrest with probable cause forecloses a Fourth Amendment false arrest
claim, as such a seizure would then be reasonable. See Holmes v. Vill. of Hoffman Estate,
511 F.3d 673, 679–80 (7th Cir. 2007). “A police officer has probable cause to arrest if a
reasonable person would believe, based on the facts and circumstances known at the
time, that a crime had been committed.” McBride v. Grice, 576 F.3d 703, 707 (7th Cir.
2009). The court evaluates probable cause based on the facts as they would have
appeared to a reasonable person in the position of the arresting officer. Mahoney v.
Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992).
None of the parties assert that there was a warrant to arrest any of the plaintiffs
other than Roy, Jr. In fact, Miller specifically asserts that the other plaintiffs were not
arrested. The court also notes that there is no evidence that anything occurred at the
residence, during the execution of the warrant, which gave defendants probable cause
to arrest plaintiffs. While these facts, on their own, do not necessarily mean that
probable cause for arrest was lacking, they are relevant to the extent they relate to the
Hammond Officers’ knowledge of a potential lack of probable cause to arrest the family
members at the time of the alleged arrests.
Meanwhile, defendants point out that Reniece, Roy, III, and Renee, were all
present at the shopping center at the time of the alleged armed robbery, while Reniece
and Roy, III, were specifically in the JC Penny store at the time. (DE ## 323-11 at 49; 32312 at 24.) Additionally, Miller asserts he was aware that Roy, III, was “possibly involved
in the armed robbery.” (DE # 335-1 ¶ 4.) We note that “probable cause is only a
13

probability or substantial chance of criminal activity, not a certainty that a crime was
committed.” Mannoia v. Farrow, 476 F. 3d 453, 457 (7th Cir. 2007). Yet, this statement
regarding a “possibility” of involvement does not necessarily equate to a “substantial
chance or probability” of crime.
The ultimate probable cause determination is based on reasonableness, which is
generally an issue for the jury. Reardon v. Wroan, 811 F.2d 1025, 1027 (7th Cir. 1987).
“Accordingly, a conclusion that probable cause existed as a matter or law is appropriate
only when no reasonable jury could find that the officers did not have probable cause to
arrest . . . .” Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993) (emphasis
added). Stated in other terms, “[a]lthough the issue of probable cause . . . generally is a
jury question, the court may conclude that probable cause existed as a matter of law
when there is no room for a difference of opinion concerning facts or the reasonable
inferences to be drawn from them.” Tibbett v. McPherson, 5 F. Supp. 3d 989, 993 (S.D.
Ind. 2014).
Here, the facts presented leave room for a difference of opinion, as they do not so
definitively establish probable cause as a matter of law. Given the facts and the
reasonable inferences that could be drawn from those facts, the court finds that a
reasonable jury could conclude that defendants knew they lacked probable cause to
arrest. In particular, the lack of a warrant for the family members as compared to Roy,
Jr., and the limited additional evidence pertaining to those family members, lead the
court to this conclusion. Therefore, the existence of probable cause remains as a genuine
14

issue of fact for the jury, thus preventing summary judgment on the claims that Miller
seized Reniece, Roy, III, and Renee Goodman and Grasha seized Roy, III.
Furthermore, defendants never properly raise qualified immunity on this claim.
Although plaintiffs write at length about qualified immunity regarding their excessive
force claims, they never once mention qualified immunity in relation to their false
arrest/seizure claim, in their brief. (See DE # 322.) Even in the motion itself (DE # 321),
plaintiffs identify qualified immunity as an issue to be addressed regarding their
excessive force claims, but not the false arrest claims. In their reply, defendants finally
address qualified immunity on this claim but only briefly. In one sentence they assert:
“In fact, even if a court thinks that probable cause is lacking, a defendant is still entitled
to summary judgment as to the issue of qualified immunity unless it was objectively
unreasonable for the defendant to think that there was probable cause to arrest.” (DE
# 342 at 11.) Putting aside whether or not that legal assertion is even true, it only
offhandedly raises qualified immunity on this issue.
As they have not sufficiently raised the issue of qualified immunity on this claim
in their initial motion and brief, and only do so incompletely in their reply, the court
does not need to address it. See Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906,
913 (7th Cir. 2011) (“It is well established in our precedents that “skeletal” arguments
may be properly treated as waived . . . as may arguments made for the first time in
reply briefs.”) The concern here is that plaintiffs were not put on notice that they needed
to respond to this issue, and so ruling would be prejudicial to plaintiffs. Id.
15

Nevertheless, even if defendants do not waive their argument, qualified
immunity is not appropriate at the summary judgment stage. As the court describes
above, a material issue of fact remains as to whether or not defendants’ violated
plaintiffs’ Fourth Amendment rights, because an issue of fact remains as to probable
cause. And, having found a material issue of fact as to probable cause, a denial of
summary judgment on the issue of qualified immunity results as well. Arnold v. City of
Fort Wayne, 210 F. Supp. 3d 1055, 1067 (N.D. Ind. 2016). “Where the only issue bearing
on immunity is whether the defendant had probable cause to make the search or arrest
that is challenged, merits and immunity merge; the dispositive question is simply
whether the defendant did have probable cause.” Boyce v. Fernandez, 77 F.3d 946, 948
(7th Cir. 1996); Maxwell, 998 F.2d at 435-36; Northen v. City of Chicago, 126 F.3d 1024, 1027
(7th Cir. 1997).3 Accordingly, summary judgment is not appropriate on this claim, as to
Miller and Grasha.
iv.

False Arrest Claim Pursuant to State Law

All four plaintiffs bring this false arrest claim (Count IV) against the Hammond
Officers. (DE # 151 at 7.) Defendants argue that this claim is barred as to each of the
Hammond Officers by Indiana Code § 34-13-3-5 of the Indiana Tort Claims Act
(“ITCA”). (DE # 322 at 5.) The ITCA limits when a plaintiff can sue a governmental

3

It is also clearly established that a seizure absent a warrant or probable cause
would violate the Goodmans’ Fourth Amendment rights.
16

employee personally. Sutter v. Carroll, No. 1:11-CV-83, 2012 WL 2343372, at *11–12 (N.D.
Ind. June 20, 2012). Specifically, Indiana Code § 34-13-3-5(b) provides that a “lawsuit
alleging that an employee acted within the scope of the employee’s employment bars an
action by the claimant against the employee personally.”
Indiana courts have defined conduct within the scope of employment as
“conduct . . . of the same general nature as that authorized, or incidental to the conduct
authorized” by the employment. See Bushong v. Williamson, 790 N.E.2d 467, 471
(Ind. 2003) (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)).
The ITCA “goes so far as to protect officers from liability for both tortious and even
criminal acts where the purpose of the employee’s conduct was to further the
employer’s business.” McConnell v. McKillip, 573 F. Supp. 2d 1090, 1103–04 (S.D. Ind.
2008) (citing City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind. Ct. App. 1999)).
Whether certain acts of an employee are within the scope of employment is
normally a question of fact but it “may be determined as a mater of law if the
designated materials conclusively demonstrate.” Long v. Barrett, 818 N.E.2d 18, 24 (Ind.
Ct. App. 2004) (internal quotation marks omitted). In their response, plaintiffs do not
argue that the Hammond Officers acted outside the scope of their employment by
arresting plaintiffs. (See DE # 335.) Similarly, plaintiffs point to no evidence or caselaw
in their response which would indicate the Officers acted outside the scope of their
employment.

17

On the other hand, the undisputed facts disclose that, at the time of the arrests,
the Hammond Officers were in uniform at the Goodmans’ residence for the purpose of
executing a warrant, conduct that is of the same general nature as the everyday duties
of law enforcement officers. See McAllistar v. Town of Burns Harbor, 693 F. Supp. 2d 815,
823 (N.D. Ind. 2010). Moreover, the Hammond Officers were furthering their
employer’s business by arresting plaintiffs. See Sutter, 2012 WL 2343372, at * 13.
Accordingly, Indiana Code § 34-13-3-5 bars this claim and summary judgment is
appropriate on this claim.4
v.

Conspiracy Claim

Plaintiffs’ fourth amended complaint contains a conspiracy claim against all of
the Hammond Officers (Count V) for violations of the United States Constitution. (DE
# 151 at 8.) Defendants move for summary judgment on the claim. (DE # 322 at 11.) In
their response on this issue, plaintiffs only object to the entry of summary judgment as
to Defendant Miller’s conspiracy to arrest plaintiffs Renee, Reniece, and Roy Goodman,
III. (DE # 335 at 10.) Therefore, summary judgment is appropriate on Roy Goodman,
Jr.’s conspiracy claim and on any conspiracy claim against defendants other than Miller.
In order to survive a motion for summary judgment on a conspiracy claim, a
plaintiff must produce “evidence showing: ‘(1) [the existence of] an express or implied
4

None of the parties assert Indiana Code § 34-13-3-3(8) as a reason to grant or
deny summary judgment. Nevertheless, the court notes that § 34-13-3-5 “provides
another species of immunity” than § 34-13-3-3. See Mayes v. City of Hammond, 442 F.
Supp. 2d 587, 629 (N.D. Ind. 2006). Therefore, the exclusion for false arrest in
§ 34-13-3-3(8) need not necessarily apply to § 34-13-3-5. See id.
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agreement among defendants to deprive plaintiff of his . . . constitutional rights and (2)
actual deprivations of those rights in the form of overt acts in furtherance of the
agreement.’” Garcia v. City of Chicago, No. 09 C 5598, 2012 WL 601844, at *3 (N.D. Ill. Feb.
23, 2012) (citing Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988)). A plaintiff must do
more than offer “speculation and conjecture.” Sow, 636 F.3d at 304–05.
Plaintiffs claim they can establish a conspiracy to falsely arrest them that existed
between Miller, defendant Lori Warren, and former defendant Ted May. (DE # 335 at
10.) However, the only evidence linking May and Warren to this alleged conspiracy
relates to the arrest of Roy Goodman, Jr. (See DE # 335-3 ¶¶ 4, 8.) Roy Goodman, Jr. no
longer asserts this claim. Nevertheless, Miller’s own affidavit provides evidence of a
conspiracy to arrest the other plaintiffs. According to Miller, himself:
In addition to the FBI taking Roy Goodman, Jr. into custody
in conjunction with his existing arrest warrant, the FBI and
Calumet City Police Department also asked me to have the
Hammond Police Department hold Roy Goodman, III,
Renee Goodman and Reniece Goodman at the Hammond
Police Department’s facilities so that they could be
interviewed by the FBI and the Calumet City Police
Department. I think that the representative from the
Calumet City Police Department who asked me to hold
[them] may have been Detective Casey Erickson; I do not
recall who did so for the FBI.
(DE # 335-1 ¶ 9.)
First, it does not matter that this evidence does not definitively identify Miller’s
co-conspirators by name. “Although the government need not always establish
specifically with whom the defendant conspired, it must nonetheless establish that a
19

conspiratorial agreement existed between the defendant and another individual.”
United States v. Contreras, 249 F.3d 595, 598 (7th Cir. 2001).
Second, Miller’s statement provides evidence that is more probative than simple
speculation. A reasonable jury could infer from this evidence that there was an
agreement to arrest5 plaintiffs (other than Roy Jr.) without probable cause. See Sow, 636
F.3d at 305 (“The agreement may be inferred from circumstantial evidence, but only if
there is sufficient evidence that would permit a reasonable jury to conclude that a
meeting of the minds had occurred and that the parties had an understanding to
achieve the conspiracy’s objectives.”).
Thus, plaintiffs have established a genuine issue of material fact as to whether or
not an agreement exists to deprive plaintiffs of their constitutional rights. Additionally,
the court has already concluded that a genuine issue of material fact exists regarding
whether or not Miller actually falsely arrested defendants. This satisfies the second
prong of the conspiracy standard for summary judgment (actual deprivation through
overt acts).
Because a genuine issue of material fact remains on this issue, summary
judgment is not appropriate on this claim.

5

Once again, Miller’s use of the term “hold” instead of “arrest” does not mean
this was not actually an agreement to arrest plaintiffs.
20

vi.

Malicious Prosecution Claim

Plaintiff Roy Goodman, Jr., brings this claim (Count VII) against the Hammond
Officers under Indiana state law. (DE # 151 at 9.) Defendants move for summary
judgment on this claim, arguing that it is barred by Indiana Code § 34-13-3-3(6). (DE
# 322 at 5.) According to that section, “[a] governmental entity or an employee acting
within the scope of the employee’s employment is not liable if a loss results from the
following . . . (6) [t]he initiation of a judicial or an administrative proceeding.” Ind. Code
§ 34-13-3-3(6). Additionally, the Seventh Circuit has recognized that “the Indiana Tort
Claims Act grants broad immunity to Indiana government units and employees from
malicious prosecution actions.” Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013).
Plaintiffs do not contest defendants’ argument that summary judgment should
be granted on Count VII. (See DE # 335.) Furthermore, there is no evidence that any of
the Hammond Officers acted outside of the scope of their employment to initiate any
judicial or administrative proceeding against Roy Goodman, Jr. Therefore, the claim for
malicious prosecution is barred and summary judgment is appropriate.
vii.

Claim Against the City of Hammond (Monell)

All four plaintiffs assert a claim against the City of Hammond (Count VIII)
alleging that the city is liable wherever the Hammond Officers are found liable. (DE
# 151 at 9–10.) Count IX specifically covers vicarious liability for state law claims, so
Count VIII must cover liability for federal law claims only (otherwise it would be barred
as duplicative). Regarding the plaintiffs’ federal claims, a municipality cannot be held
21

liable for alleged constitutional torts under a theory of respondeat superior. Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, plaintiffs must assert that
the constitutional violation was caused by either (1) an express policy of the City, (2) a
widespread practice, or (3) a person with final policymaking authority. Latuszkin v. City
of Chicago, 250 F.3d 502, 504 (7th Cir. 2001). Defendants move for summary judgment
on this claim and argue that plaintiffs have failed to assert any of these requirements.
(DE # 322 at 4.)
Plaintiffs counter, in their response, that the City of Hammond can be held liable
because Defendant Miller, as Chief of Police of the City of Hammond, was a person
with final policymaking authority. (DE # 335 at 12.) Officials with final decision-making
authority are deemed policymakers for Monell purposes, and the court must look to
state law to determine the scope of that decision-making authority. Valentino v. Vill. Of
S. Chicago Heights, 575 F.3d 664, 675-76 (7th Cir. 2009).
In Love v. Rehfus, 946 N.E.2d 1, 20-22 (Ind. 2011), the Indiana Supreme Court
examined whether a fire chief acted as a final policymaker for Monell purposes when he
terminated an employee. After finding little guidance in state statutes, the court noted
“[i]f an official has some discretion to act, but his or her actions are reviewable by the
originally authorized policymakers, then those policymakers have not delegated final
policymaking authority to that official.” Id. at 22. The court found that although the fire
chief had discretion to terminate an employee, a question remained as to whether his

22

decision was reviewable by a higher authority. Id. The remaining issue of fact made
summary judgment inappropriate. Id.
In the present case, Miller, as chief, clearly had discretion to act in arresting
plaintiffs but it is not clear from the record if his actions are reviewable. Thus, the court
concludes that genuine issues of material fact preclude summary judgment on this
issue.
In their reply, defendants do not argue that Miller does not qualify as a final
policymaker. (DE # 342 at 3–4.) Instead they argue that, even if a Monell policymaker
was properly asserted, there can be no liability against the City because there is no
underlying liability for the individual officers. (Id.) This is correct as to Roy Goodman,
Jr. However, the court has not rejected the other plaintiffs’ claims against Miller.
Therefore, summary judgment is appropriate on this claim, only as to plaintiff Roy
Goodman, Jr.
viii.

Respondeat Superior Claim Against the City of Hammond

All four plaintiffs assert a “supplementary claim” (Count IX) alleging that the
City of Hammond is responsible for the actions of the Hammond Officers, under the
doctrine of respondeat superior. (DE # 151 at 10.) This claim only applies to the
underlying Indiana state law claims in Counts IV and VII. (See id.) Defendants move for
summary judgment on this claim. (DE # 322 at 14.)
The court, above, found that summary judgment is appropriate as to both Counts
IV and VII. However, this does not necessarily mean that Count IX fails. As far as Count
23

VII, Indiana Code § 34-13-3-3(6) bars the claim as to both the governmental entity and
the employees. Therefore the City of Hammond cannot be liable for malicious
prosecution.
However, Indiana Code § 34-13-3-5—the section defendants rely upon to dismiss
Count IV—only bars claims against an employee in his or her personal capacity, not
against a municipality. Because it is undisputed that the Hammond Officers were acting
within the scope of their employment when they arrested plaintiffs the claim is barred
as to them, but the City of Hammond may remain in the case as a defendant. See Laffoon
v. City of Portage, No. 2:09-CV-103, 2011 WL 2293331, at *11 (N.D. Ind. June 8, 2011)
(denying summary judgment as to the city on a state law claim of battery but granting
summary judgment as to the employee under Indiana Code § 34-13-3-5); see also City of
Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind. Ct. App. 1999) (“Under the doctrine of
respondeat superior, an employer is liable for the acts of its employees which were
committed within the course and scope of their employment”).
Because the state law false arrest claim against the City of Hammond, Indiana is not
barred by § 34-13-3-5(b), the court must determine whether that claim is supported by
evidence such that it survives summary judgment.
Under Indiana state law, an arrest made in the absence of probable cause is a
false arrest. Row v. Holt, 864 N.E.2d 1011, 1016 (Ind. 2007). An arrest occurs when
officers interrupt an individual’s freedom and restrict his or her liberty of movement.

24

Roberts v. State, 599 N.E.2d 595, 598 (Ind. 1992); Turner v. Sheriff of Marion County, 94 F.
Supp. 2d 966, 995 (S.D. Ind. 2000).
Like the court discussed when reviewing plaintiffs’ Fourth Amendment false
arrest claim, a genuine issue of material fact exists as to whether there was probable
cause to arrest plaintiffs Renee, Reniece, and Roy Goodman, III, and as to whether their
freedom of movement was restricted to constitute a seizure (or for the state law claim,
an arrest). These same genuine issues of material fact that prevent this court from
granting summary judgment on the § 1983 false arrest claim, also prevent summary
judgment on the state law claim against the City of Hammond. Therefore, summary
judgment is appropriate on this claim only as to Roy Goodman, Jr.
ix.

Statute of Limitations

Defendants assert that plaintiffs have failed to comply with various statutes of
limitations. (DE # 322 at 23.) For this reason, they request that the court grant summary
judgment (1) against Roy Goodman, Jr., and in favor of all the Remaining Hammond
Defendants, and (2) against the other plaintiffs and in favor of all of the Hammond
Officers except Brian Miller. (Id.)
Plaintiffs do not respond to this argument. (See DE # 335.) Nevertheless, the court
has already decided this issue. (DE # 115 at 28–34.) The court previously allowed
plaintiffs to file an amended complaint featuring the names of the individual Hammond
Defendants, even though the statute of limitations had expired. (Id.) Therefore,
defendants’ argument on this issue fails.
25

x.

Punitive Damages

In the fourth amended complaint, plaintiffs demand punitive damages. Punitive
damages are not available against municipalities, under both § 1983 and the Indiana
Tort Claims Act. Kentucky v. Graham, 473 U.S. 159, 167 n. 13 (1985); Ind. Code
§ 34-13-3-4. Therefore, plaintiffs may only seek punitive damages against defendants
Brian Miller and Rudy Grasha.
Punitive damages are only available against government actors in § 1983 actions
if there is a showing of “evil motive or intent, or . . . reckless or callous indifference to
the federally protected rights of others.” Kyle v. Patterson, 196 F.3d 695, 697–98 (7th Cir.
1999). “While evaluations of motive and intent are generally inappropriate on a motion
for summary judgment . . . [there is] an exception to this rule where a plaintiff fails to
produce evidence raising a material question of fact regarding aggravating
circumstances or the reckless or callous nature of defendant’s actions.” Id. Defendants
assert that plaintiffs’ claims for punitive damages fail because plaintiff fails to produce
the necessary evidence to raise such a question of fact. (DE # 322 at 24.) Plaintiffs have
not responded to this argument. (See DE # 335.)
Nevertheless, the court finds that a material question of fact remains on this
issue, precluding summary judgment. As the court discussed above, a material question
of fact exists as to whether or not Miller and Grasha had probable cause to arrest the
plaintiffs, other than Roy, Jr. If the jury finds that Miller and Grasha knew that they
lacked probable cause to arrest, that jury could reasonably infer that to continue with an
26

arrest would be callously indifferent to the plaintiffs’ Fourth Amendment rights.
Accordingly, summary judgment is not appropriate on this issue as to Miller and
Grasha.
B.

FBI Defendants’ Motion for Summary Judgment

Only two claims remain against the FBI Defendants in plaintiffs’ fourth amended
complaint: the excessive force claim (Count II), and the Bivens conspiracy claim
(Count VI). (DE # 151.) The FBI Defendants have moved for summary judgment on
both of these claims. (See DE ## 327, 328.) The court will discuss each claim, in turn.
i.

Excessive Force Claim

On July 25, 2011, the court entered an order dismissing plaintiffs’ excessive force
claim, but granted leave to amend the claim. (DE # 150.) However, in granting that
leave, the court limited the excessive force claim to “the use of the flash-bang grenades
because the federal defendants[6] have qualified immunity for their use of other means
of force.” (Id. at 29.) Plaintiffs’ fourth amended complaint was filed one month later, on
August 25, 2011, pursuant to the court’s leave. (See DE # 151.)
The FBI Defendants now move for summary judgment, because there is no
evidence that the FBI Defendants deployed any flash-bang grenades or instructed other
officers to do so. (DE # 328 at 13.) In their response to the motion for summary
judgment, the plaintiffs do not object to this characterization of the evidence. (See DE

6

The federal defendants included both the FBI Defendants and other defendants
who have since been dismissed. (See DE ## 150, 318.)
27

# 336.) Accordingly, the undisputed evidence states that the FBI Defendants did not
deploy flash-bang grenades at plaintiffs’ residence or instruct the Hammond Officers to
do so. (DE ## 328-4 ¶¶ 8–9; 328-5 ¶¶ 8–9; 328-6 ¶¶ 8–9; 328-7 ¶¶ 8–9.)
In fact, plaintiffs do not argue that their excessive force claim should survive
summary judgment, or even address the claim, at all, in their response. (See DE # 336.)
Therefore, summary judgment is appropriate on plaintiffs’ claim for excessive force
against the FBI defendants.
ii.

Conspiracy Claim

In its order dated July 25, 2011, the court dismissed plaintiffs’ conspiracy claim,
but granted leave to amend the claim. (DE # 150.) In doing so, the court limited the
claim to a “conspiracy related to the use of excessive force.” (Id. at 29.) Following this
order, plaintiffs reasserted a conspiracy claim in their fourth amended complaint. (DE
# 151 at 8.) Consistent with the terms of the court’s prior order, that claim is limited to a
conspiracy related to the use of excessive force.
The FBI Defendants move for summary judgment on this claim, on the grounds
that plaintiffs present no evidence that defendants engaged in a conspiracy related to
the use of excessive force. (See DE # 328 at 14.) Plaintiffs do not dispute that their
conspiracy claim fails on that basis. However, they assert that their “conspiracy claims
in relation to [p]laintiffs’ false arrest” should survive. (See DE # 336 at 5–6.)
Any conspiracy claim related to false arrest was barred by the court’s prior order,
on its face. According to the law of the case doctrine, “a ruling made in an earlier phase
28

of a litigation controls the later phases unless a good reason is shown to depart from it.”
Kathrein v. City of Evanston, Ill., 752 F.3d 680, 685 (7th Cir. 2014). One such good reason is
the introduction of substantial new evidence after the court’s initial review and
decision. Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991). Here, plaintiffs contend that
they have new evidence, which provides the court a good reason to reverse its prior
decision and allow the conspiracy claim to move forward as it relates to the alleged
false arrests. (DE # 336 at 5–6.)
Plaintiffs have not filed an affirmative motion asking the court to reconsider its
prior order. They simply make their request within their response to the motion for
summary judgment. (See DE # 336.) Although this might not be the procedurally proper
way to make such a request, the court will nonetheless consider plaintiffs’ alleged new
evidence.
To start, none of plaintiffs’ new evidence implicates defendants Crocker, Landau,
or Soyez. (See DE # 336 at 6.) In fact, the only new evidence which relates to any of the
FBI Defendants is a statement from former defendant Ted May’s affidavit which
indicates that Special Agent Warren “requested assistance with conducting the arrest of
Roy Goodman Jr.” (DE # 336-3 ¶ 4.) This evidence suggests only that Warren might
have had an agreement to arrest Roy Goodman, Jr., not any of the other plaintiffs.
Although Roy Goodman, Jr. did bring a conspiracy claim in Count VI of the
fourth amended complaint, the plaintiffs have only contested the applicability of the
law of the case doctrine as to Renee Goodman, Reniece Goodman, and Roy
29

Goodman, III.7 (DE # 336 at 5–6.) Because none of this “new” evidence suggests that any
FBI defendant conspired to falsely arrest Renee, Reniece, or Roy, III, the court has no
good reason to reconsider its order dated July 25, 2011.
Thus, the prior decision remains in place and plaintiffs’ Bivens conspiracy claim
is limited to a conspiracy related to the use of excessive force. Since plaintiffs do not
present any argument or evidence to support this claim, summary judgment is
appropriate.
IV.

CONCLUSION
For the foregoing reasons, the court
(1) GRANTS the FBI Defendants’ Motion for Summary Judgment (DE # 328);
(2) DENIES Remaining Hammond Defendants’ Motion for Summary Judgment

(DE # 321) as to Count III against Rudy Grasha and Brian Miller, Count V against Brian
Miller, Count VIII against the City of Hammond for false arrest, and Count IX against
the City of Hammond for false arrest;
(3) Otherwise GRANTS the Remaining Hammond Defendants’ Motion for
Summary Judgment (DE # 321);

7

Furthermore, an officer cannot be liable for a conspiracy claim if there is no
underlying constitutional violation. See Goldschmidt v. Patchett, 686 F.2d 582 (7th Cir.
1982). Plaintiffs do not argue that defendants lacked probable cause to arrest Roy
Goodman, Jr. Nor do they contest the validity of the warrant. Therefore, even if
plaintiffs argued that their conspiracy claim should survive as to Roy Goodman, Jr., the
claim would fail because there is no underlying violation.
30

(4) DIRECTS the Clerk to dismiss defendants Christopher Crocker, Carrie
Landau, Christopher Soyez, Lori Warren, Christopher Berdine, Ralph Bogie, Robert
Bunner, Raymond Finley, Officer Edward, John Ratajczak, Thomas Strabavy, Patrick
Vicari, and Timothy Walczak from this case, because no claims remain pending against
them;
(5) DIRECTS the clerk to dismiss plaintiff Roy Goodman, Jr. from this case, as
summary judgment has been granted on all of his claims; and
(6) ORDERS the parties to file a joint status report regarding their willingness to
engage in a settlement conference before a Magistrate Judge by October 20, 2017. A trial
date will be set under a separate order.
SO ORDERED.
Date: September 29, 2017
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

31