Williams v. Horseshoe Hammond LLC et al
Filing
55
OPINION AND ORDER granting 40 Motion for Summary Judgment; denying 43 Motion to Strike Plaintiffs Memorandum in Opposition to Horseshoe Hammond, LLCs Motion for Summary Judgment. Signed by Judge Rudy Lozano on 3/7/12. (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KATRINA WILLIAMS,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
HORSESHOE HAMMOND, LLC
Defendant.
NO. 2:10-CV-317
OPINION & ORDER
This
matter
is
before
the
Court
on:
(1)
Defendant
Horseshoe
Hammond, LLC’s Motion for Summary Judgment, filed on April 22, 2011;
and (2) the Motion to Strike Plaintiff’s Memorandum in Opposition to
Horseshoe Hammond, LLC’s Motion for Summary Judgment, filed on May 31,
2011.
For the reasons set forth below, the Motion to Strike is DENIED
and the Motion for Summary Judgment is GRANTED.
BACKGROUND
Plaintiff,
defendants,
Katrina
Horseshoe
Williams
Hammond,
(“Williams”)
LLC
alleges
(“Horseshoe”),
that
Myeisha
the
Spates
(“Spates”), Karl Madayag (“Madayag”), Mike Drohosky (“Drohosky”), the
Indiana
Gaming
Commission
(“IGC”),
and
John
Doe
violated
her
constitutional rights under the First, Fourth, Eighth, and Fourteenth
Amendments, under the color of state law.
These alleged violations
stem from an incident at the Horseshoe Casino on November 12, 2008,
where Plaintiff, a guest of the casino, was questioned about the theft
1
of a wallet.
The claims against Madayag, Drohosky, and IGC have been
dismissed, and the John Doe defendant has been stricken.
Horseshoe filed the instant Motion for Summary Judgment on April
22, 2011.
(DE #40).
Williams filed a Response to the Motion for
Summary Judgment on May 22, 2011.
(DE #42).
Horseshoe then filed a
reply brief and a motion to strike Williams’ response on May 31, 2011.
(DE #43, 44).
Williams filed a Response to the Motion to Strike on
June 13, 2011.
(DE #45).
The motions are now fully briefed and ripe
for adjudication.
DISCUSSION
Summary Judgment Standard
The standards that generally govern summary judgment motions are
familiar.
Pursuant
to
Rule
56(a)
of
the
Federal
Rules
of
Civil
Procedure, summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P.
56(a); see also Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
record
must
nonmovant.
reveal
that
no
reasonable
jury
In other words, the
could
find
for
the
Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332,
335 (7th Cir. 1991).
See also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
In deciding a motion for summary judgment, a
court
must
nonmovant.
view
all
facts
in
the
light
favorable
to
the
Anderson, 477 U.S. at 255; Trade Fin. Partners, LLC v. AAR
Corp., 573 F.3d 401, 406 (7th Cir. 2009).
most
2
According to Rule 56:
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A)citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made
for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c).
Furthermore, “[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).
“Whether a fact is material
depends on the substantive law underlying a particular claim and ‘only
disputes over facts that might affect the outcome of the suit under
governing law will properly preclude the entry of summary judgment.’”
Walter
v.
Fiorenzo,
840
F.2d
427,
434
(7th
Cir.
1988)
(citing
Anderson, 477 U.S. at 248).
Where a party bears the burden of proof on a particular issue,
the
party
may
not
rest
on
its
pleading,
but
must
affirmatively
demonstrate, by specific factual allegations, that there is a genuine
dispute requiring a trial.
See Beard v. Whitley Cnty. REMC, 840 F.2d
405, 410 (7th Cir. 1988); Hickey v. A.E. Stanley Mfg., 995 F.2d 1385,
1391 (7th Cir. 1993).
Therefore, if a party fails to establish the
existence of an essential element on which the party bears the burden
of proof at trial, summary judgment will be appropriate.
3
In this
situation, there can be “no genuine dispute as to any material fact”
because a complete failure of proof concerning an essential element of
the nonmovant’s case necessarily renders all other facts immaterial.
Celotex, 477 U.S. at 323.
Horseshoe’s Motion to Strike
Horseshoe filed a motion to strike Williams’ response claiming
that the response does not strictly comply with Local Rule 56.1.
This
rule provides that a party opposing a summary judgment motion “must
include
a
section
labeled
‘Statement
of
Genuine
Disputes’
that
identifies the material facts that the party contends are genuinely
disputed so as to make a trial necessary.”
N.D. Ind. L.R. 56.1(b)(2).
Plaintiff’s Response has a section labeled “Disputed Facts,” where she
asserts that certain facts are in dispute, but does not contain a
section labeled “Statement of Genuine Disputes.”
It is within the
Court’s discretion to require strict compliance with its local rules.
Shaffer
v.
Am.
Med.
Ass’n,
662
F.3d
439,
442
(7th
Cir.
2011).
Williams, however, complied in spirit with Local Rule 56.1; merely
different words were chosen for the section label.
Accordingly, this
Court finds that Plaintiff’s failure to strictly comply with Local
Rule 56.1 does not justify striking the response brief.
Horseshoe has further argued that Williams’ response fails to
comply with Federal Rule of civil Procedure 56(c)(1), which requires
that a party asserting that a fact is genuinely disputed must support
that assertion with citations “to particular parts of materials in the
record” or by “showing that the materials cited do not establish the
4
absence or presence of a genuine dispute, or that an adverse party
cannot
produce
admissible
evidence
to
support
the
fact.”
While
Williams’ brief provides very few citations to the record, it does
include some citations.
the
well-supported
To the extent that Williams has not disputed
facts
contained
in
Horseshoe’s
statement
of
material facts, this Court will, pursuant to Federal Rule of Civil
Procedure 56(e), consider those facts as undisputed.
Because Rule
56(e)
citations
provides
an
adequate
remedy
to
any
lack
of
in
Williams’ response, it is not necessary to strike the response as a
whole.
Accordingly, the motion to strike is DENIED.
Facts
This Court has reviewed both Horseshoe’s statement of material
facts and the facts contained in Williams’ response brief, and accepts
the
following
facts
as
true
for
purposes
of
the
instant
summary
judgment motion.
Williams visited Horseshoe Casino on November 12, 2008, with her
boyfriend.
At
one
point
during
the
evening,
Williams
asked
her
boyfriend if he could watch her slot machine while she went to the
restroom.
As
she
walked
from
the
restroom,
she
saw
a
different
machine that interested her; she asked the person sitting near it if
the machine was open and was told that the machine was being used.
Williams went back to her machine and played.
While Williams was at Horseshoe Casino, at approximately 11:00
p.m.,
Horseshoe
contacted
IGC
Security
agents
by
Supervisor,
telephone
5
Tarrance
about
the
Salter
possible
(“Salter”),
theft
of
a
wallet.1
Agents
(“Agent
Myiesha
Madayag”)
Spates
watched
surveillance room.
(“Agent
footage
of
Spates”)
the
and
incident
Karl
in
Madayag
Horseshoe’s
The footage showed a woman fitting Plaintiff’s
description behaving suspiciously; she walked past a slot machine,
looked down, paused, turned back and looked around, and then put her
hand
in
her
pocket
and
walked
away.
Agent
Spates
instructed
surveillance to investigate where the suspect went next.
Agent Spates met Horseshoe’s Security Supervisor, Salter, on the
casino floor.
Agent Spates was informed by Supervisor Salter that the
missing wallet had been found in a bathroom, that everything except
$35.00
remained
in
the
wallet,
and
that
the
victim
had
filed
a
complaint and left the premises.
While on the casino floor, Agent Spates noticed a patron playing
at a slot machine that fit the description of the suspect she had
viewed on the surveillance tape. Agent Spates and another IGC officer
approached Williams.
about
the
theft.
Agent Spates identified herself and inquired
Williams
conversation about a theft.
Williams
during
this
and
the
two
officers
had
a
brief
Neither of the IGC officers yelled at
conversation.
According
to
Officer
Spates’
report, when approached, Williams took a step back, rolled her eyes,
raised her voice and denied the theft.
Williams identified herself as
an employee of the Westville Correctional Facility, and recited the
1 While Williams asserts in her brief that Horseshoe provided the
IGC with “false evidence” she does not state what, exactly, she
believes was false about the information Horseshoe conveyed to
the IGC. At any rate, her assertion that the evidence was false
is not supported by any citation to admissible evidence and is
therefore disregarded.
6
phone number.
Williams asserts that the IGC agents claimed they had
called her employer.
Following this conversation, Officer Spates returned to review
the
surveillance
videos
to
determine
person she had just interviewed.
if
the
suspect
was
the
same
She determined that Williams was
indeed the person on the video.
Eventually (Williams says hours after
the
IGC
initial
conversation
with
officers),
three
IGC
officers
returned to Williams’ location and asked Williams to come to the IGC
office for further investigation.
She agreed to go with the officers,
and was led to the office while flanked by two IGC officers.
not
handcuffed
or
under
arrest.
The
walk
to
the
room
She was
took,
in
Williams’ words, “a little minute.”
In the IGC office, Williams was asked to empty her pockets and
questioned about the missing wallet.
purse (she was not carrying one).
going to jail.
No one searched her person or
At one point, she was told she was
Following questioning, Williams was allowed to leave;
at no point was she under arrest or placed in a holding cell.
not denied food or water.
No fines were levied against her.
She was
The only
request that was denied was a request to call her boyfriend to inform
him of what was going on.
The only people to discuss the theft with Williams were IGC
agents; no one from Horseshoe was involved with the investigation,
search or seizure.
Once the incident was over, Williams spoke with
someone from Horseshoe in an attempt to identify the three IGC agents,
but Williams was told she would have to call the IGC.
7
This individual
is the only person from Horseshoe that Williams spoke to on the day of
the incident.
Following the interview with Williams in the IGC room, more video
footage was found showing Williams entering and exiting the restroom
where
the
Despite
wallet
the
was
found,
evidence,
and
placing
Supervisor
something
Drohosky
in
determined
her
pocket.
upon
further
review that the video evidence was inconclusive in part due to camera
angle
and
video
quality,
and
that
this
shortcoming
affected
the
feasibility of seeking to criminally prosecute Williams.
At her deposition, Williams stated that she believed that her
First Amendment rights were violated because she was accused by the
IGC agents of doing something she did not do.
She stated that she is
not claiming that the IGC and Horseshoe are engaged in a conspiracy.
She indicated that she has never been prevented from participating in
any political group or function or any religious groups or functions.
She admits she was never formally evicted from a casino and that she
could return to Horseshoe Casino if she chose to.
In fact, there are
no activities that she cannot now participate in as a result of the
incident.
IGC agents are employed by the state of Indiana, not Horseshoe.
The IGC agents were stationed at Horseshoe at the direction of their
employer.
Indiana
law
requires
casinos
to
have
two
surveillance
rooms; one to be used by Horseshoe employees and is known as the
“surveillance room”, and the other to be accessed only by the IGC and
is known as the “Commission surveillance room.”
8
Plaintiff’s 42 U.S.C. § 1983 Claims
Plaintiff has alleged violations of her First, Fourth, Eighth,
and Fourteenth Amendment rights; such allegations are brought under 42
U.S.C. § 1983.
Under 42 U.S.C. § 1983, “[e]very person who, under
color of any statute ... of any State ... subjects, or causes to be
subjected, any citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law ....”
See 42 U.S.C. § 1983).
To establish a claim under § 1983, a plaintiff
must show both that a constitutional right has been violated and that
the alleged wrongdoer acted under color of state law.
West v. Atkins,
487 U.S. 42, 48 (1987).
Although Plaintiff’s complaint asserts claims under the First,
Fourth,
Eighth
and
Fourteenth
Amendments
of
the
Constitution,
and
Plaintiff’s “disputed facts” section asserts that whether her First,
Fourth, Eighth and Fourteenth Amendment rights have been violated are
in
dispute,
Plaintiff’s
response
Fourteenth Amendment claims.
brief
addresses
only
her
Fourth
and
Because Plaintiff has failed to defend her
First and Eight Amendment claims in her response to Defendant’s Motion for
Summary Judgment, those claims are waived.
Ienco v. Angarone, 429 F.3d 680,
684 (7th Cir. 2005).
For Williams to prevail on any of her claims against Horseshoe
(including
those
that
were
waived),
Horseshoe acted under color of state law.
she
must
demonstrate
that
For a private party such as
Horseshoe to be held liable under 42 U.S.C. § 1983, “the state must
somehow be responsible for the allegedly unlawful actions taken by the
9
party.”
Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996).
“[S]tate
action may be found if, though only if, there is such a ‘close nexus
between the State and the challenged action’ that seemingly private
behavior
‘may
be
fairly
treated
as
that
of
the
State
itself.”
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,
295 (2001)(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345
(1974)).
An
action
is
“under
color
of
state
law”
when
the
alleged
wrongdoer acts by virtue of authority granted to him by the state;
merely reporting a crime to the proper authorities does not usually
subject a private citizen to liability under § 1983.
Hughes v. Meyer,
880
Raymond
F.2d
967,
971
(7th
Cir.
1989).
In
Hughes,
Buss,
a
Wisconsin Department of Natural Resources (“DNR”) conservation warden,
radioed the Sauk County Sheriff Office for assistance because he was
being
held
against
his
will
by
Raymond
and
Ronald
investigating illegal hunting on the Hughes’ property.
Hughes
while
Id. at 968.
The Seventh Circuit held that Buss could not be held liable under §
1983 for an alleged violation of the Fourth Amendment because, even
though he was employed by the state, he was not acting under color of
state law when he radioed the sheriffs for assistance; he was acting
as
a
private
authorities.
citizen,
Id. at 972.
reporting
criminal
conduct
to
the
proper
The Court acknowledged that a private actor
may be liable under § 1983 if there is “a conspiracy, an agreement on
a joint course of action in which the private party and the state have
a common goal.”
Id. (quoting Gramenos v. Jewel Cos., Inc., 797 F.2d
432, 435 (7th Cir. 1986).
But, Buss was not acting in concert with
10
the sheriffs to violate any of the Hughes’ rights, and was therefore
not acting under color of state law.
In this case, Williams’ allegations against Horseshoe are quite
limited.
An employee of Horseshoe, Salter, notified the IGC of a
possible theft.
Salter also advised the IGC that the victim had left
Horseshoe and that the wallet had been found.
Horseshoe allowed the
IGC agents to view its video surveillance material.
IGC agents are
the only ones that discussed the theft with Williams and are the ones
who asked her to empty her pockets. Williams was not led to believe
that any of the IGC agents were employed by Horseshoe.
Despite the very limited involvement of Horseshoe, Williams makes
several arguments in an attempt to demonstrate that Horseshoe was
acting under color of state law.
Williams claims that Horseshoe’s
surveillance
that
cameras,
the
cameras
recorded
Williams’
suspect
activities, were “ordered installed by the State of Indiana” and that
Horseshoe “willfully notified IGC agents of the video, knowing the
video was inconclusive.”
(DE 42 at 8).
Plaintiff further claims that
the use of the surveillance cameras was a “power” “possessed by virtue
of state law and made possible only because the wrong-doer is clothed
with the authority of state law.”
(DE 42 at 9).
These arguments are
each without merit.
While casinos are regulated by the state, this does not make the
casino a state actor.
The Seventh Circuit has clearly stated this
principle just recently, in an unpublished case.
Hammond,
LLC,
unpublished
445
opinion
Fed.
that
Appx.
868
(7th
“the
power
to
11
Cir.
detain
Swanson v. Horseshoe
2011)(stating
and
arrest
in
is
an
not
exclusively
reserved
to
the
government
and
by
itself
does
not
constitute state action…[a]nd neither does regulation by the state
make Horseshoe Casino a state actor.”).
And, the Seventh Circuit’s
conclusion is consistent with that of other circuits.
See Lindsey v.
Detroit Entertainment, LLC, 484 F.3d 824, 831 (6th Cir. 2007)(noting in
dicta that “we do not consider the fact that the state pervasively
regulates casinos in itself to be sufficient to transform the actions
of Defendant’s employees, including Defendant’s security personnel,
into actions of the state.”); Doug Grant, Inc. v. Greate Bay Casino
Corp., 232 F.3d 173, 189 (3rd Cir. 2000)(“State regulation and the
CCC’s authorization of casino activities do not transform the casinos
into state actors.”).
Additionally, the fact that Horseshoe complied with the law and
had a surveillance room does not render Horseshoe’s action under color
of
state
suggests
power.
law.
If
submission
anything,
to
the
Horseshoe’s
law
rather
compliance
than
a
with
usurpation
the
of
law
state
See Smith v. Detroit Entertainment L.L.C., 338 F.Supp.2d 775,
783 (E.D. Mich. 2004)(“Defendant's compliance with the requirements of
the Michigan Gaming Commission Regulations was not a usurpation of
state government authority but rather, a submission to it. Indeed, the
security officers' early and complete deference to the authority of
the
State
Police
serves
to
demonstrate
the
private
and
limited
character of their own authority.”)
As for the assertion that the use of surveillance by Horseshoe
was a “power” “possessed by virtue of state law and made possible only
because the wrong-doer is clothed with the authority of state law,”
12
its hard to follow Williams argument at all.
One need not be clothed
with the authority of state law to utilize surveillance equipment.
Horseshoe could utilize surveillance equipment (and like would) even
in the absence of regulations requiring its use.
The fact that the video was inconclusive hardly suggests that
Horseshoes action could fairly be treated as that of the state.
of
Horseshoe’s
surveillance
taken.
patrons
tapes
of
reported
the
area
a
in
stolen
which
wallet.
the
wallet
One
It
possessed
was
allegedly
It shared the fact of the reported theft as well as the video
surveillance with the IGC.
The IGC took over from there.
Williams
points to nothing suggesting that Horseshoe acted under color of state
law by virtue of its surveillance tapes being deemed inconclusive by
an employee of the IGC.
Any such conclusion would be nothing short of
irrational.
In the instant case, Plaintiff has conceded that she is not
alleging a conspiracy between the IGC and Horseshoe.
Even in the
absence of this concession, the record would not support a finding
that Horseshoe conspired with IGC officers to deprive Williams of her
rights, or that Horseshoe willfully participated in joint activity
with the state.
that
the
state
Williams has not produced any evidence that shows
delegated
a
public
function
to
Horseshoe
or
that
Horseshoe was directed or controlled by the IGC.
Contrary to Plaintiff’s suggestion, the Indiana Gaming Commission
Case Report does not establish that Horseshoe acted under color of
law.
Rather, the undisputed facts in this case, taken in the light
most favorable to Williams, fail to demonstrate any basis for deeming
13
Horseshoe’s action to be under color of law.
Accordingly, each of
Williams’ claims against Horseshoe must fail.
CONCLUSION
For the reasons set forth above, the Defendant Horseshoe Hammond,
LLC’s Motion for Summary Judgment is GRANTED and the Motion to Strike
Plaintiff’s
Memorandum
in
Opposition
to
Horseshoe
Hammond,
LLC’s
Motion for Summary Judgment is DENIED.
DATED:
March 7, 2012
/s/ RUDY LOZANO, Judge
United States District Court
14
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