Tunick v. Williams et al
Filing
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OPINION AND ORDER granting 38 Motion for Summary Judgment for the Defendants on all claims. Signed by Judge Joseph S Van Bokkelen on 7/29/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
James D. Tunick,
Plaintiff,
v.
Indiana Gaming Commission Agents
Chad Williams and Patricia Yelkich, and
The Majestic Star Casino II, Inc.,
Defendants.
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Case No. 2:10-CV-59 JVB
OPINION AND ORDER
In this § 1983 lawsuit, Plaintiff James Tunick claims Indiana Gaming Commission
(“IGC”) Agents Chad Williams and Patricia Yelkich violated his civil rights during his arrest at
the Majestic Star II Casino on March 28, 2008. Furthermore, he brings an Indiana state law claim
that the IGC agents maliciously prosecuted him. He also alleges that the Majestic Star casino and
IGC officers conspired to deprive him of his civil rights, violating 48 U.S.C. § 1985.
Defendants moved for summary judgment. They argue that Agents Williams and Yelkich
had probable cause to arrest Plaintiff, and they are entitled to qualified immunity from suit. They
further assert that Plaintiff’s malicious prosecution claim must fail if Defendants had probable
cause to arrest Plaintiff. Finally, Defendants maintain that Plaintiff alleges no facts to support a
conspiracy between the IGC and The Majestic Star Casino.
Plaintiff responded to the motion, asserting that there are triable issues of fact regarding
probable cause in his arrest. He argues there were two arrests both lacking probable cause, one at
the casino exit ramp and a second after he signed a release bond inside the IGC offices. Plaintiff
does not respond to Defendants’ assertion that Plaintiff lacks evidence for the §1985 conspiracy
claim. As such, Plaintiff concedes there are no factual disputes relating to that claim.1
A. 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
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
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“The Court will assume that the facts as claimed and supported by admissible evidence by the moving party
are admitted to exist without controversy, except to the extent that such facts are controverted in the “Statement of
Genuine Issues” filed in opposition to the motion.” N.D. Ind. L.R. 56.1(b).
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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).
B. Summary of Events
Plaintiff played poker for several hours at the Majestic Star II casino on March 28, 2008. (DE
38-1 at 24.) He became annoyed with a female player at the poker table, and called her a
“bitch” to another patron. (Id.) Shortly afterward, casino employees working the floor notified
casino security officers about a disorderly patron. (DE 38-3 at 20.) The security manager
dispatched two security employees to evict Plaintiff from the casino. (Id. at 23–25.) The security
employees escorted Plaintiff towards the casino exits where, according to Plaintiff, he may have
cursed “this is bullshit.” (DE 38-1 at 37.) The casino’s eviction procedure includes checking a
person’s identification in order to bar them from the property in the future. (DE 38-3 at 11.)
Signs posted in the casino alert patrons that casino officials may ask for ID at any time. (DE 38-1
at 38.) Plaintiff refused to give his identification, and the casino employees called IGC agents to
assist. (DE 38-1 at 38.) Agents Williams and Yelkich then approached Plaintiff and the casino
security employees. (DE 38-4 at 50.)
Agent Williams and identified himself as a law enforcement and demanded Plaintiff’s ID.
Plaintiff refused to display it. Agent Williams again asked for the ID, saying that he would arrest
Plaintiff if he did not comply. (DE 38-1 at 42–44.) In response, Plaintiff put his hands out as if to
be handcuffed, and then turned away when Agent Williams began to arrest him. (DE 38-6 at
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15:18.) Agent Williams then handcuffed Plaintiff, and both IGC agents escorted Plaintiff to the
IGC offices on the casino property. Once there, IGC agents took Plaintiff’s ID and patted him
down for weapons. (DE 38-2 at 40.)
Plaintiff stayed in the offices for a several hours while IGC agents checked his background
for outstanding warrants and criminal history. (DE 38-1 at 47.) IGC agents released Plaintiff's
handcuffs to allow him to sign his release bond. The bond contained a promise to appear if
criminal charges were filed. Agent Williams told Plaintiff he would not be charged at this time.
Plaintiff signed the bond, then immediately stood up and spoke out against his arrest. (Id. at 56.)
IGC agents ordered him to sit down, and he did not comply. (Id.) Defendants testify that he then
attempted to exit the office and shoved into Agent Yelkich. (DE 38-2 at 46; DE 38-4 at 84–87.)
Shortly afterward, Agent Williams again handcuffed Plaintiff, and announced that he would be
going to jail. Plaintiff was taken to jail roughly an hour later. (Id. at 60.)
An Indiana prosecutor filed criminal charges against Plaintiff for disorderly conduct,
resisting law enforcement, and battery of a law enforcement officer. (DE 38-5.) Plaintiff entered
a pre-trial diversion program, where the charges would be dismissed if he wrote a letter of
apology and did not commit further offenses for a time period. (DE 38-5.) Plaintiff complied
with the terms of the program and the charges were dismissed.
C. Section 1983 Standards
Pursuant to 42 U.S.C. § 1983, Plaintiff alleges violations of his rights guaranteed by the
Fourth Amendment. Section 1983 provides “a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and federal statutes that it describes.”
City of Monterrey v. Del Monte Dunes at Monterrey, Ltd., 526 U.S. 687 n.9 (1999). A cause of
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action may be brought under § 1983 against “[e]very person who, under color of statute,
ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction therefor to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws.”
The plaintiff must demonstrate that the defendant personally participated in or directly
caused the deprivation of his or her rights. Alejo v. Heller, 328 F.3d 930, 936 (7th Cir. 2003).
The doctrine of respondeat superior cannot be used under § 1983 to create supervisors’ liability
due to the misconduct of subordinates. Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.
2001). Instead, the plaintiff must demonstrate that the defendant was personally responsible by
“act[ing] or fail[ing] to act with a deliberate or reckless disregard of plaintiff’s constitutional
rights,” or that “the conduct causing the constitutional deprivation occur[red] at [the defendant’s]
direction or with [the defendant’s] knowledge or consent.” Crowder v. Lash, 687 F.2d 996, 1005
(7th Cir. 1982).
Qualified immunity, a primary defense to a claim under § 1983, shields officers from
liability when they are “performing discretionary functions . . . insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he inquiry focuses on the
objective legal reasonableness of the action, not the state of mind or good faith of the officials in
question.” Delaney v DeTella, 256 F.3d 679, 686 (7th Cir. 2001). Qualified immunity provides
“protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986). “[P]laintiff bears the burden of showing the existence of the
allegedly clearly established constitutional rights.” Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir.
1996). Police have qualified immunity for actions taken during arrest if their conduct does not
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violate statutory or constitutional safeguards that a reasonable person would know, and their
conduct is not so egregious no reasonable person could believe it did not violate clearly
established rights. Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). A Plaintiff can
dissolve qualified immunity by showing a clearly analogous case establishing a right to be free
from the specific conduct, or by showing that no reasonable person would believe the conduct
did not violate a protected right. Id.
D. IGC Agents Have Qualified Immunity from Suit for the False Arrest Claims.
Defendants argue that Plaintiff’s arrest was based on probable cause, that his detention
was continuous until his release from Lake County jail, and that they have qualified immunity
from suit. Plaintiff counters that his initial arrest lacked probable cause, and his re-cuffing after
signing a release bond formed a second arrest also lacking probable cause.
(1) Plaintiff did not demonstrate that his initial arrest violated rights a reasonable person
would know, or that the arrest was so egregious no reasonable person would believe it did
not violate a protected right
To overcome an officer’s qualified immunity defense, the plaintiff bears the burden to
demonstrate both a rights violation and that the clear-establishment of that right. Purtell v.
Mason, 527 F.3d 615, 621 (7th Cir. 2008). Probable cause for an arrest exists when law
enforcement officers have reasonably trustworthy information that would cause a prudent person
to believe a suspect committed an offense. Maxwell v. City of Indianapolis, 998 F.2d 431, 433
(7th Cir. 1993). Facts and circumstances are considered as they appeared to the arresting officers.
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
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IGC agents have broad authority to enforce IGC policies under Indiana law.2 The IGC
can evict or exclude riverboat patrons that, in its judgment, interfere with the orderly conduct of
gambling operations. Ind. Code § 4-33-4-7. Indiana law requires casinos to maintain patron
eviction criteria, and mandate that disorderly conduct be a basis for eviction. 68 Ind. Admin.
Code § 6-2-1. Further, casinos must keep an “eviction list” containing the excluded person’s
name, date-of-birth, address, physical description, and current photograph. 68 Ind. Admin. Code
§ 6-2-4. The Majestic Star II Casino’s eviction procedure includes examining an evicted person’s
identification, and posted signs alert patrons of the requirement to show their ID upon request.
Plaintiff fails to show that the IGC Defendants would reasonably know that Plaintiff’s
arrest under these circumstances violated the Fourth Amendment. The IGC has broad authority
to enforce conduct in the highly regulated casino environment. Plaintiff fails to point to any case
in this circuit or elsewhere that would place the IGC agents on notice that arrest for reported
disorderly conduct or failing to present ID would violate the Fourth Amendment.
Plaintiff failed to show that his arrest was so egregious no reasonable person could
believe it did not violate an established right. It is undisputed that casino employees reported that
Plaintiff was acting disorderly to the IGC Defendants. When Agent Williams identified himself
and confronted Plaintiff for his ID, he refused to display it. When pressed for his ID, Plaintiff
held out his hands for handcuffs. The IGC has considerable discretion to evict casino patrons,
and casinos are required by law to gather identification information as part of that process.
Indiana law mandates casino eviction for disorderly behavior, and the casino’s eviction
procedure requires information generally contained on photo identification. IGC agents have full
police powers to enforce IGC policy, including policies of eviction. Plaintiff’s refusal to
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“A gaming agent is vested with full police powers and duties to enforce this [riverboat gambling] article.” Ind.
Code § 4-33-4.5-1.
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cooperate with eviction procedures violated IGC policy. As such, the Court finds that the IGC
Defendant’s arrest of Plaintiff for failing to present ID or for reported disorderly conduct was not
so egregious that no reasonable person would believe it did not violate the Fourth Amendment.
Therefore, the Court finds that Plaintiff failed to meet his burden to overcome the IGC
Defendants’ qualified immunity.
Agents Williams and Yelkich have are entitled to summary judgment regarding
Plaintiff’s false arrest claim for his initial detention. As such, the Court need not reach the
question of whether probable cause existed, though the undisputed facts indicate it did.
(2) Plaintiff did not demonstrate his detention at the IGC offices violated rights a reasonable
person would know, or that the detention was so egregious no reasonable person would
believe it did not violate a protected right
Plaintiff argues that he was arrested twice without probable cause, once on the casino
entrance ramp and again inside the IGC offices. Plaintiff relies on Xing Qian v. Kautz, 168 F.3d
949 (7th Cir. 1999) to illustrate his argument. In that case, a man suffering from recurrent
dizziness lost control of his car and collided with a wooden planter. Id. at 951. Police, suspecting
a DUI violation, arrested him and transported him to both the police station and a hospital for
breath and blood tests. Id. Police then took him to check into a hotel, planning to re-arrest him
there if the tests showed him to be under the influence. Id. The man refused to book into the
hotel, and was immediately re-arrested. Id. at 952. That Court of Appeals for the Seventh Circuit
found that a reasonable person at the hotel would believe he was free to leave, and the re-arrest
lacked probable cause. Relying on this, Plaintiff argues that, after he signed a release bond and
police told him he would not be charged, a reasonable person would believe he was free to go,
and his re-handcuffing constituted a second arrest not based on probable cause. Plaintiff asserts
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that the issue of probable cause for this “second arrest” is an issue of fact to be determined by a
jury.
Defendants argue that Plaintiff’s arrest was continuous from his initial detention at the
casino until his release from Lake County jail. Custody is determined objectively in light of the
totality of the circumstances, with the inquiry focused upon whether a reasonable person would
understand there was a formal restriction on his movement. Quin v. Kautz, 168 F.3d 949, 954
(7th Cir. 1999). Defendants highlight that Plaintiff was at the relevant times confined to a
restricted area of the barge, in a room with multiple law enforcement officers. On standing up,
officers ordered him to sit back down. They submit that no reasonable person —even after being
un-handcuffed to sign a release bond—would believe he was free to leave under the
circumstances.
To overcome an officer’s qualified immunity defense, a plaintiff must demonstrate both
violation of a constitutional right, and the clear establishment of that right. Purtell v. Mason, 527
F.3d 615, 621 (7th Cir. 2008). Plaintiff offers no clearly analogous case law that the IGC agents
should have been on notice that un-handcuffing a man, inside police offices, to sign a release
bond constituted a break in custody, and separate probable cause was required to re-handcuff
him. Plaintiff’s reliance on Xing Qian is misplaced. The suspect in that case was escorted by
police to a hotel specifically for the purpose of temporary release. This is markedly different
from the release of restraints and signature of a release bond while confined deep within law
enforcement offices. Similarly, the evidence, viewed in light most favorable to Plaintiff, shows
that the IGC agents re-handcuffed Plaintiff after he refused to sit down while confined inside law
enforcement offices. The Court finds this conduct is not so egregious that no reasonable person
would believe it did not violate an established right.
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The Court finds that Plaintiff failed to show his confinement was egregious or violated a
clearly-established right. Therefore, the Court need not reach the question if signing a release
bond constituted a break in custody. Furthermore, the Court finds the IGC agents have qualified
immunity from this false arrest claim. As such, the Court grants summary judgment regarding
Plaintiff’s second false arrest claim for both IGC Defendants.
E. Plaintiff Concedes His Conspiracy Claim
IGC Defendants maintain that Plaintiff showed no evidence that Majestic Star Casino
employees and IGC agents conspired to violate his civil rights. Plaintiff did not respond to this
assertion in his summary-judgment response. Through this silence, Plaintiff concedes a lack of
evidence for the claim. The Court grants summary judgment to all Defendants for that claim.
F. The Indiana Tort Claims Act Bars Plaintiff’s Malicious Prosecution Claim
Defendants assert that Plaintiff’s malicious prosecution claim is incorporated into his
§ 1983 claim for false arrest. Plaintiff did not address this assertion in response, though he
described that claim as “state law” in the complaint. The Court finds the claim arises under
Indiana state law, and the Court has supplemental jurisdiction over the claim under 28 U.S.C.
§1367.3
The Court finds that Indiana law bars Plaintiff’s claim for malicious prosecution. If
Indiana government employees initiate prosecution within the scope of their employment, the
Indiana Tort Claims Act shields them from any resulting liability. Ind. Code § 34-13-3-3; see
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Title 28 U.S.C. §1367 allows federal jurisdiction over state law claims if the claims are “so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under Article III.” The
Court finds that Plaintiff’s malicious-prosecution claim relates sufficiently to the federal §1983 false arrest claim to
make supplemental jurisdiction proper.
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Butt v. McEvoy, 669 N.E.2d 1015 (Ind. Ct. App. 1996) (holding that the ITCA confers immunity
upon police officers in actions for malicious prosecution). The Court finds the Defendants, as
gaming officials, acted in the scope of their employment when they initiated the prosecution
against Plaintiff. As such, they are immune from suit for malicious prosecution. Therefore, the
Court grants summary judgment for the Defendants on this claim as well.
G. Conclusion
The Court finds that the IGC Defendants have qualified immunity from suit for both
§ 1983 false arrest claims. The Court further finds that Plaintiff conceded his §1985 conspiracy
claim. Finally, the Court finds that Indiana law bars his state-law claim for malicious
prosecution. As such, the Court enters summary Judgment for the Defendants on all claims.
SO ORDERED on July 29, 2011.
s/Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division
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