Marshall et al v. Merrillville Town of et al

Filing 75

OPINION AND ORDER: For the reasons stated in the Opinion and Order, the Court DENIES the Defendants' 62 Motion to Bar Opinions and Testimony of Joseph R. Blaettler and GRANTS IN PART and DENIES IN PART the Defendants' 60 Motion for Summary Judgment. Summary Judgment is DENIED as to Count I and GRANTED as to Counts II and III. Signed by Judge Theresa L Springmann on 1/11/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DAVID MARSHALL, III and LAMISA
MARSHALL,
Plaintiffs,
v.
TOWN OF MERRILLVILLE, OFFICER
ALLISON ELLIS, individually and in her official
capacity, and OFFICER TIMOTHY FINNERTY,
individually and in his official capacity,
Defendants.

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CAUSE NO.: 2:14-CV-50-TLS

OPINION AND ORDER
This matter comes before the Court on Defendants Town of Merrillville, Officer Allison
Ellis, and Officer Timothy Finnerty’s Motion for Summary Judgment [ECF No. 60] and Motion
to Bar Opinions and Testimony [ECF No. 62]. The Plaintiffs, David Marshall, III, and LaMisa
Marshall, filed a state court Complaint [ECF No. 1] on January 23, 2014, alleging claims under
42 U.S.C. § 1983 and state tort law, which was removed to federal court pursuant to 28 U.S.C.
§§ 1441 and 1446. This matter is fully briefed and ripe for the Court’s review.

FACTS OF THE CASE
On June 5, 2013, the Plaintiffs attended their daughter’s graduation ceremony for
Merrillville High School. The ceremony was held in the auditorium of the Radisson Theater in
Merrillville, Indiana. The Plaintiffs attended with a large number of family members1 and sat in
two adjacent rows in the middle section of the first floor. There were some rows of people seated

1

The family members included Plaintiffs David and LaMisa Marshall, their children TaMar and
Ella, LaMisa’s mother Mary Woods, their cousins Lawrence and Michelle Thurmond, their cousins’
children Maurice and Antoinette, mother-in-law Mrs. Greer, “and various other family members” (D.
Marshall Dep. 9:12–17, ECF No. 67-3.)

behind the Plaintiffs’ party. The graduation ceremony began with the singing of the national
anthem. Once the national anthem concluded, someone shouted something in the auditorium.
The Defendant Officers approached the Plaintiffs’ party, discussed that disturbance with them,
escorted the Plaintiffs out of the auditorium, and did not permit David Marshall to return to the
ceremony. Although the parties agree on this bigger picture, they dispute most of its details.

A.

The Plaintiffs’ Version of Events
David Marshall was seated in the first row of Plaintiffs’ party on the end of that row, with

LaMisa Marshall seated to his left. (D. Marshall Dep. 9:22.) Seated in the row directly behind
them were Lawrence and Michelle Thurmond. (Id. at 12:1.) While the national anthem was
going on, David Marshall and Lawrence were trying to locate the latter’s daughter on stage (who
was also graduating), eventually “pointing out that both . . . daughters were sitting next to each
other.” (Id. at 12:7–14.) At the national anthem’s conclusion, “a lady’s voice yelled out and said
‘BoBo Ducy’ or something like that, really loud, just out of nowhere.” (L. Marshall Dep. 6:17–
22, ECF No. 61-2.) The person who yelled that “was in back of” the Plaintiffs’ party
(D. Marshall Dep. 11:3–4), although the Plaintiffs “didn’t know who was yelling” (Id. at 14:1).
Immediately thereafter, Officer Ellis came over to the Plaintiffs’ party because she
believed that they were the source of the yelling. (Id. at 12:21–13:1.) Officer Ellis singled out
Michelle as the yeller and “told Michelle to shut up.” (Id. at 12:11–17.) All of the members in
the Plaintiffs’ party “told [Officer Ellis] that we were not the ones yelling.” (Id. at 12:21–22.)
Additionally, David Marshall “identified [him]self as a police officer with [his] ID,” as did
Lawrence. (Id. at 11:19–23.) The Defendant Officers were members of the Merrillville Police
Department, whereas David Marshall was a detective with the Lake County Sheriff’s Office. (D.
Marshall Dep. 6:2–3.) Lawrence was also a police officer, but the parties did not specify for
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which municipal entity he worked. As the Plaintiffs’ party tried to explain to Officer Ellis that
they were not the source of the disturbance and were not making any noise, “several other
Merrillville officers came” over to them in “a very short amount of time.” (Id. at 13:4–12.)
“They were argumentative, and they would not let [the Plaintiffs’ party] explain what was going
on. One of the officers . . . even slapped down [David Marshall’s] cousin’s hands.” (Id. at 14:13–
16.)
After just a minute elapsed, Sergeant Finnerty approached and said “let’s go outside and
talk about it” to the Plaintiffs. (Id. at 15:7–8.) The police officers kept pushing both of the
Plaintiffs until they were outside of the auditorium and its lobby. (Id. at 15:16–23, 16:6–14.)
Once the Plaintiffs were outside, Sergeant Finnerty said that if David Marshall “continued to
talk,” he would “be going to jail for disorderly conduct.” (Id. at 16:23–24.) David Marshall said,
“You all know me as a police officer. Why are you treating me as if I’m not a police officer, that
I would be disruptive?” (Id. at 17:5–7.) He was upset but remained peaceful throughout this
interaction, calling his sergeant to get his advice and try to resolve the situation, but Sergeant
Finnerty “said again if [he] was to keep on talking that [he’d] be going to [his] own jail.” (Id. at
17:7–9, 18:2–6.) LaMisa Marshall was “kept outside the building about five minutes” after
talking with some of the officers. (L. Marshall Dep. 10:2–3.) Ultimately, LaMisa Marshall was
permitted to go back inside, while David Marshall was not arrested or charged but was barred
from returning to the auditorium for the remainder of the ceremony. (Id. at 10:6–11.)

B.

The Defendants’ Version of Events
The Defendant Officers were acting as security at the graduation ceremony. (Town

Interrog. No. 6, ECF No. 61-6.) Officer Ellis “was facing the stage” when she “heard somebody
screaming ‘Juicy,’ a couple times.” (Ellis Dep. 17:15, 33:6, ECF No. 61-3.) Once she “turned
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around the yelling had stopped.” (Id. at 33:10–11.) However, Officer Ellis “observed a female2
waving her arms in the air” who was seated in the area where “David Marshall was seated
immediately after hearing somebody screaming ‘Juicy.’ [Officer Ellis] went over to speak with
her” in order to tell her “that she needed to lower her voice and stop yelling or she’d be asked to
leave.” (Id. at 17:16–21.) When Officer Ellis walked up to talk to that woman, “[t]he male sitting
directly to the right of her and the male sitting directly in front of him3 began yelling at me that it
wasn’t her that was screaming.” (Id. at 18:2–5.)
At that point, Officer Ellis said “[t]hen just be quiet. Then I just need you guys to lower
your voice and stop arguing. Just be quiet.” (Id. at 18:7–8.) But David Marshall said, “No. I will
not be quiet.” (Id. at 18:19.) After Officer Ellis had spoken to Michelle Thurmond, “[David
Marshall] was approximately four inches from [her] face saying that I had the wrong person.”
(Id. at 35:21–23.)4 Officer Ellis “believed at the time [she] had the right person. But when they
were arguing with [her],” she began to have doubts that she had the right person. (Id. at 18:10–
11.) While Officer Ellis attempted to quiet the Plaintiffs’ party, at least four other police officers
arrived, including Sergeant Finnerty, having “heard a male’s voice screaming.” (Finnerty Dep.
23:8, 23:16–17.) That voice turned out to be David Marshall’s, whom the police officers “tried to
get” to be quiet, because by that point “Mr. Thurmond had quieted down.” (Ellis Dep. at 18:21–
24; Ellis Answers Interrog. No. 9, ECF No. 61-7.)
Because David Marshall “would not be quiet . . . he was asked to leave the auditorium.”
(Ellis Dep. at 19:1–2.)5 The Defendant Officers “did not see anybody put their hands on [the

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The parties do not contest that this female was Michelle Thurmond.
The parties do not contest that these males were Lawrence Thurmond and David Marshall,
respectively.
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Officer Ellis is “a five-foot five female officer,” whereas David Marshall is “a very large[,] . . .
very intimidating man” because of “his girth, his size.” (Finnerty Dep. 35:3–6, ECF No. 61-4.)
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In her deposition testimony, Officer Ellis stated:
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Plaintiffs]” as they were escorted out of the auditorium. (Id. at 19:7–13.) Once they were outside,
“Mr. Marshall was arguing that he wanted to go back inside. He tried to say that we knew him.”
(Id. at 37:18–20.) However, Sergeant Finnerty decided that David Marshall could not come back
in “[b]ecause he was loud, he caused a disturbance, it was apparent that he was not going to calm
down, it was apparent that he was going to continue with his actions.” (Finnerty Dep. 28:5–8.)6
Sergeant Finnerty threatened “to take [David Marshall] to his own jail,” but ultimately chose not
to arrest him “[b]ecause he was a policeman” and did not make a police report because he made
no arrest. (Id. at 33:4–15.) Even once David Marshall had calmed down somewhat, Sergeant
Finnerty “did not let him go back into that graduation” because “he’d already committed
[disorderly conduct].” (Id. at 30:17–22.) However, because no one “had instructed [LaMisa
Marshall] to leave in the first place,” Sergeant Finnerty “allowed her to go back in.” (Ellis Dep.
20:6–10.)

COMPLAINT ALLEGATIONS AND PROCEDURAL BACKGROUND
On January 23, 2014, the Plaintiffs filed a Complaint [ECF No. 1] against the Defendant
Officers and the Town of Merrillville. In Count I, they alleged that the Defendants violated the
Plaintiffs’ right to peaceably assemble “[b]y forcing Plaintiffs out of their daughter’s graduation
without just cause,” in violation of 42 U.S.C. § 1983. (Compl. ¶ 33, ECF No. 1.) In Count II,

A: When [David Marshall] was instructed to leave, before he left he said “Okay, then. I
got you. I got you, Finnerty. I got you too, Ellis.”
Q: And what did you think that meant?
A: I took that as a threat.
Q: How so?
A: that he will retaliate in some way.
(Ellis Dep. 25:3–9.)
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In his deposition testimony, Sergeant Finnerty stated that he based his decision to keep David
Marshall out of the auditorium “on [his] actions . . . [b]eing boisterous, screaming in a theater, resisting an
officer actually, not taking directions when told to.” (Id. at 28:23–29:2.)

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they alleged that the Defendants committed the tort of intentional infliction of emotional distress
by “intentionally extreme and outrageous conduct of . . . forcibly removing Plaintiffs from their
daughter’s graduation.” (Id. ¶ 34.) In Count III, they alleged that the Town of Merrillville
breached its duty to the Plaintiffs to hire and retain employee police officers who were qualified
and properly trained which the Town breached by hiring and retaining [the Defendant Officers]
proximately causing Plaintiffs’ injuries at their daughter’s graduation” and failed to do so. (Id. ¶
35.)
The Complaint was removed to federal court on February 14, 2014. The Defendants filed
an Answer with Affirmative Defenses [ECF No. 10] on March 24, 2014. After discovery, the
Defendants filed two Motions on September 21, 2015. The first was a Motion to Bar the
Testimony of the Plaintiffs’ Expert Witness, to which the Plaintiffs’ Response [ECF No. 64] was
filed on October 6, 2015, and the Defendants’ Reply [ECF No. 70] on November 2, 2015. The
second was a Motion for Summary Judgment, to which the Plaintiffs Response [ECF No. 67]
was filed on October 21, 2015, and the Defendants’ Reply [ECF No. 71] on November 2, 2015.

DISCUSSION
A.

Motion for Summary Judgment
The Court has subject-matter jurisdiction over the Plaintiffs’ § 1983 claims pursuant to

28 U.S.C. § 1331, and supplemental jurisdiction over the Plaintiffs’ remaining state law claims
pursuant to 28 U.S.C. § 1367. The Court’s analysis of the Defendants’ Motion for Summary
Judgment does not consider the opinions and testimony of the Plaintiffs’ expert, Joseph R.
Blaettler, as they are unnecessary for the Court to render its ruling. The Defendant’s Motion to
Bar Mr. Blaettler’s Opinions and Testimony is addressed below.

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1.

Standard of Review
Summary judgment is warranted when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Summary judgment is the moment in litigation where the nonmoving party is
required to marshal and present the court with evidence on which a reasonable jury could rely to
find in that party’s favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
A court should only deny a motion for summary judgment when the nonmoving party presents
admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,
652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d
504, 510 (7th Cir. 2010); then citing Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852,
859 (7th Cir. 2010)). A court’s role in deciding a motion for summary judgment “is not to sift
through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.
[A] court has one task and one task only: to decide, based on the evidence of record, whether
there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24
F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the
applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention
that an issue of material fact exists is insufficient to create a factual dispute, a court must
construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences
in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and
avoid “the temptation to decide which party’s version of the facts is more likely true,” Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

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2.

Standing
The Defendants challenge LaMisa Marshall’s standing in this case. Standing is a

constitutional requirement for which a Plaintiff must show (1) “injury in fact,” which is an
invasion of a legally protected interest that is either “concrete and particularized” or “actual and
imminent,” rather than conjectural or hypothetical; a (2) causal connection such that the injury is
fairly traceable to the challenged action of the defendant and not the result of the independent
action of some third party not before the court; and (3) that it is likely that the injury will be
redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
A party must assert their own interests and may not assert those of a third party. Massey v.
Helman, 196 F.3d 727, 739 (7th Cir. 1999).
The Defendants argue that LaMisa Marshall did not suffer an injury-in-fact because the
police did not require her to come outside with David Marshall, and she was able to return to the
auditorium after only five minutes of being out with the police. With regard to the first
contention, the Plaintiffs have offered evidence showing that LaMisa believed she was required
to follow the police outside. The fact that there were at least four police officers confronting her
husband in a quiet auditorium and asking him to leave shows that she believed that she had no
choice but to follow him. If LaMisa had no choice, then she would have suffered an injury-infact because the police would have deprived her of her interest in remaining at the ceremony.
With regard to the second contention, the Court believes that the five minute timespan that
LaMisa was barred from the auditorium does not render her legally protected interest
insubstantial. See Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 925 (7th Cir.
2008) (noting that an injury “need not be large, an identifiable trifle will suffice”). Accordingly,
the Court finds that LaMisa has standing to sue.

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3.

Constitutional Violations

a.

The Defendant Officers’ Liability Under § 1983
The Plaintiffs allege a 42 U.S.C. § 1983 claim against the Defendants. When public

officers violate the constitutional rights of citizens, § 1983 provides the vehicle for a legal claim.
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Section 1983 imposes liability on any
“person” who, while acting under color of state law, deprives an individual of federally protected
rights. 42 U.S.C. § 1983; see Gomez v. Toledo, 446 U.S. 635, 640 (1980). Section 1983
authorizes claimants to sue persons in their individual capacities who are alleged to have violated
such rights. Lewis v. Downey, 581 F.3d 467, 472–73 (7th Cir. 2009). Section 1983 also
authorizes claimants to sue persons in their official capacities. See Estate of Sims ex rel. Sims v.
Cnty. of Bureau, 506 F.3d 509, 514–15 (7th Cir. 2007). Personal involvement is an element of
every claim under 42 U.S.C. § 1983. Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.
2001).
However, the Defendants have asserted that they are entitled to qualified immunity on the
Plaintiffs’ § 1983 claim, which is a doctrine that protects government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (citations omitted). Qualified immunity is intended to strike a balance
between “protect[ing] a government official’s ability to function without the threat of distraction
and liability” and “afford[ing] members of the public the ability to vindicate constitutional
violations by government officials who abuse their offices.” Gibbs v. Lomas, 755 F.3d 529, 537
(7th Cir. 2014) (internal quotation marks and citations omitted). Evaluating a qualified immunity
defense requires two inquires: (1) whether the facts, taken in the light most favorable to the
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plaintiffs, make out a violation of a constitutional right, and (2) whether that constitutional right
was clearly established at the time of the alleged violation. Williams v. City of Chi., 733 F.3d
749, 758 (7th Cir. 2013) (citation omitted). “If either inquiry is answered in the negative, the
defendant official is entitled to summary judgment.” Gibbs, 755 F.3d at 537. The Court is not
required to address the prongs in order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
The Plaintiffs expressly alleged that the Defendants violated their First Amendment
“right to peaceably assemble” when the Defendants forced the Plaintiffs out of the graduation
without just cause. (Compl. ¶ 33.) Although the First Amendment does not expressly protect the
“right of association,” the United States Supreme Court has recognized such a right in two
respects. Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984). First, the “right of association”
protects “choices to enter into and maintain certain intimate human relationships [that] must be
secured against undue intrusion by the State because of the role of such relationships in
safeguarding the individual freedom that is central to our constitutional scheme.” Id. “In this
respect, freedom of association receives protection as a fundamental element of personal liberty.”
Id. at 618. Second, the Supreme Court “has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amendment—speech, assembly, petition for
the redress of grievances, and the exercise of religion.” Id.
Here, the facts do not implicate a right to intimate association. All that could be
implicated in a First Amendment claim is the Plaintiffs’ right to associate for the purpose of
engaging in protected activities, such as “speech, assembly, petition for the redress of grievances,
or the exercise of religion.” Id. at 617–18. The Plaintiffs’ brief asserts that their “Participation in
a Graduation Constitutes Peaceful Assembly” (Resp. to Mot. Summ. J. 7, ECF No. 67), to which
they rely solely upon Swank v. Smart, 898 F.2d 1247 (7th Cir. 1990). The Plaintiffs also argue

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that their “participation in the graduation ceremony constituted expressive activity” akin to the
free exercise of religion. (Resp. to Mot. Summ. J. 7.)7 To support this argument, they cite to
Tanford v. Brand, 883 F. Supp. 1231 (S.D. Ind. 1995), aff’d 104 F.3d 982 (7th Cir. 1997).
In Swank, a police officer was discharged because a colleague observed his off-duty
encounter with a 17-year-old college student. 898 F.2d at 1250. The discharged police officer
claimed his termination for that reason violated his First Amendment right to association. Id. The
court denied his claim because “the right of association[’s purpose] is to protect the market in
ideas, broadly understood as the public expression of ideas, narratives, concepts, imagery,
opinions . . . to an audience whom the speakers seeks to inform, edify, or entertain.” Id. at 1250–
51 (citation omitted). The right does not extend to expressive activities that were “important to
participants but not to the advancement of knowledge, the transformation of taste, political
change, cultural expression, and the other objectives, values, and consequences of the speech that
is protected by the First Amendment.” Id. at 1251. In Tanford, the plaintiffs unsuccessfully
challenged that a university’s graduation ceremony violated the Establishment Clause, because it
started with a benediction and invocation. Tanford, 883 F. Supp. at 1247. Relevant here, one of
the plaintiffs was solely invited to attend in the audience but the Court held that he lacked
standing to sue because his attendance did not give him a legally protected interest, such as the
free exercise of religion. Id. at 1236 (“If he decided to attend, he is no more than an observer
with nothing at stake in the ceremony besides the psychological consequence presumably

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In a footnote, the Plaintiffs argue that “clergy performing invocations and benedictions at school
graduations violate the Establishment Clause therefore, this Court should view Plaintiffs’ participation in
the graduation ceremony as an exercise of freedom of religion.” (Resp. to Mot. Summ. J. 7 n.3. (emphasis
added).) This statement does not logically follow, and the Court could not locate case precedent to
support such a logically unsound proposition, so the Court declines to analyze it.

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produced by observation of conduct with which one disagrees.”) (internal quotation marks
omitted).
Neither of these precedents persuades the Court that the Plaintiffs’ First Amendment
rights were violated. Swank delineates that the First Amendment protects expressive activities
that qualify as “ideas, narratives, concepts, imagery, [or] opinions.” 898 F.2d at 1251. While a
graduation ceremony is an important milestone for a family, that fact “is not sufficient to bring
the [the Plaintiffs’ attendance] within the protection of the First Amendment.” Id. (quoting City
of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Tanford is also persuasive because the Plaintiffs’
mere attendance at the graduation ceremony did not somehow confer upon them a legally
protected interest in the free exercise of their religion. Accordingly, the Plaintiffs’ § 1983 claim
cannot survive under a First Amendment theory.
However, the parties’ briefing on qualified immunity presents “an alternative legal
characterization” of the § 1983 claim as a Fourth Amendment violation. See Whitaker v.
Milwaukee Cnty., Wisc., 772 F.3d 802, 808–09 (7th Cir. 2014) (holding that a plaintiff may
present a new legal theory at summary judgment if the pleaded factual allegations in the
complaint support that theory). The Plaintiff argues that there was no “basis for Defendants to
arrest” David Marshall (Resp. to Mot. Summ. J. 8–10), whereas the Defendant Officers state that
they reasonably asked David Marshall “to remain outside, as opposed to charging him and
placing him under arrest” (Reply 5–7, ECF No. 71). This “alternate legal basis for liability is
based on the same allegations” and facts as all other allegations raised in the Plaintiffs’
Complaint. Whitaker, 772 F.3d at 809 n.19 (finding defendants’ claim of unfair surprise due to
an alternative legal theory “unpersuasive when . . . based on the same allegations” in the
complaint); Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (stating that

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“plaintiffs are not required to plead legal theories”). Accordingly, the Court considers the
Plaintiffs’ § 1983 claim under a Fourth Amendment theory of liability. See Dennis v. Higgins,
498 U.S. 439, 443 (1991) (noting that “the coverage of § 1983 must be broadly construed” in
light of its “legislative history . . . as a remedial statute”) (first quoting Golden State Transit
Corp. v. Los Angeles, 493 U.S. 103, 105 (1989); then quoting Monell v. N.Y. City Dep’t of Soc.
Servs., 436 U.S. 658, 684 (1978)); see also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so
as to do justice.”).
The Fourth Amendment provides the right to be free of unreasonable searches and
seizures. U.S. Const. amend. IV. “A seizure of the person within the meaning of the Fourth and
Fourteenth Amendments occurs when, taking into account all of the circumstances surrounding
the encounter, the police conduct would have communicated to a reasonable person that he was
not at liberty to ignore the police presence and go about his business.” Kaupp v. Texas, 538 U.S.
626 (2003) (internal quotation marks omitted); Florida v. Bostick, 501 U.S. 429, 437 (1991).
Circumstances that would indicate that a person “was not free to leave” include the “threatening
presence of several officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
“When a person has no desire to leave for reasons unrelated to the police presence, the coercive
effect of the encounter can be measured better by asking whether ‘a reasonable person would
feel free to decline the officers’ requests or otherwise terminate the encounter.” Carlson v.
Bukovic, 621 F.3d 610, 620 (7th Cir. 2010) (citing Brendlin v. California, 551 U.S. 249, 255
(2007)). This inquiry is analyzed against an objective standard. Abdullahi v. City of Madison,
423 F.3d 763, 768 (7th Cir. 2005).

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Here, the Court has reviewed the designated evidence and applied the facts most
favorable to the Plaintiffs to the pertinent case law. Having done so, the Court finds that genuine
issues of material fact preclude the Court from finding as a matter of law that the Defendant
Officers’ actions, in light of the surrounding circumstances, did not constitute an unlawful
seizure in violation of the Fourth Amendment. The evidence presented shows that the police
confronted the Plaintiffs in an auditorium that was very quiet and made them feel as if they had
no choice but to follow them outside. When they left, LaMisa Marshall was pushed outside,
while David Marshall was not permitted to return and was threatened with jail time.
The Defendant Officers argue that, even if the Plaintiffs had a right to attend the high
school graduation ceremony, they acted reasonably in removing the Plaintiffs. “Probable cause to
arrest is an absolute defense to any claim against police officers under § 1983 for wrongful
arrest.” Wagner v. Wash. Cnty., 493 F.3d 833, 836 (7th Cir. 2007). A police officer has probable
cause if, at the time of the arrest, the facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person in believing that the suspect has committed an offense. Id.
Where probable cause is lacking with respect to an arrest, an officer is nevertheless entitled to
qualified immunity if his belief that he had probable cause was an objectively reasonable belief.
D.Z. v. Buell, 796 F.3d 749, 754–55 (7th Cir. 2015) (citing Humphrey v. Staszak, 148 F.3d 719,
726 (7th Cir. 1998)). This is known as “‘arguable’ probable cause.” Id.
In Larsen v. Fort Wayne Police Dept., 825 F. Supp. 2d 965 (N.D. Ind. 2010), the plaintiff
attended his daughter’s choir show at her high school. The school had recently enacted a policy
prohibiting outside videotaping, but the father was not aware of the policy until he arrived and
entered the gymnasium with his video camera. Id. at 968–69. The plaintiff was approached by a
police officer (who did not identify himself as working for the school) and a school administrator

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and told that he was not allowed to record the performance. Id. at 969–70. During their
discussion, the plaintiff protested that the school had not obtained permission to record his
daughter. Id. at 970. The officer asked the plaintiff to leave but he refused and went back to his
seat. Id. at 971. At that point, the officer physically dragged the plaintiff from the gymnasium
and arrested him for disorderly conduct and resisting law enforcement, but those charges were
subsequently dismissed. Id. at 972–73. The plaintiff filed a § 1983 claim against the defendant
officer for violating his Fourth Amendment rights when he was dragged from the gymnasium
and falsely arrested. Id. at 973. The district court denied summary judgment because the
evidence presented a question of fact as to whether the defendant officer’s decision to arrest the
plaintiff for resisting law enforcement was supported by probable cause. Id. at 975–77.
The Court believes that Larsen is analogous to this case. The Plaintiffs’ version of the
facts suggests that the disturbance in the auditorium did not come from the Plaintiffs’ party.
Coupling this fact with the rest of the Plaintiffs’ version of events, it would not have been
objectively reasonable for the Defendant Officers to believe that the Plaintiffs needed to be
removed from the auditorium, as they would have lacked probable cause to make an arrest. But
the Defendants’ version of events suggest that they had probable cause to remove the Plaintiffs
given the disturbance’s location and David Marshall’s subsequent demeanor. Resolving this
issue would require the Court to choose one of the competing versions of events. “The Seventh
Circuit has noted that it is inappropriate to grant summary judgment on qualified immunity
grounds where it requires the court to decide what the facts were when an officer made an
arrest.” Ryan-Louie v. DeFazio, No. 2:05-CV-249, 2007 WL 433067, at *6 (N.D. Ind. Feb. 2,
2007) (citing Morfin v. City of E. Chi., 349 F.3d 989, 1000 n.13 (7th Cir. 2003)).

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Because questions of fact exist as to the Plaintiffs’ § 1983 claims against the Defendant
Officers in their individual capacities, summary judgment is inappropriate at this time. A jury
may well believe the Defendant Officers’ account of events and find that they acted reasonably
or did not violate the Plaintiffs’ constitutional rights. However, “decid[ing] whom to believe” is
the jury’s duty at trial, not the Court’s duty at summary judgment. Waldridge, 24 F.3d at 920.

b.

Municipal Liability Under § 1983
“Section 1983 does not establish a system of vicarious responsibility.” Burks v.

Raemisch, 555 F.3d 592, 593 (7th Cir. 2009). Instead, “[l]iability depends on each defendant’s
knowledge and actions, not on the knowledge or actions of persons they supervise.” Id. at 594;
see also Monell, 436 U.S. at 694 (holding that a “local government may not be sued under
§ 1983 for an injury inflicted solely by its employees or agents”). A government entity can be
held liable under § 1983 for its own acts, as opposed to those of its employees, as long as those
acts are the moving force behind the constitutional violation. Estate of Sims, 506 F.3d at 514–15.
A government entity acts through its official policy or custom, which can be demonstrated by the
following:
(1) an express policy that causes a constitutional deprivation when enforced; (2) a
widespread practice that is so permanent and well-settled that it constitutes a
custom or practice; or (3) the constitutional injury was caused by a person with
final policymaking authority.
Id. at 515; Baxter v. Vigo Cnty. Sch. Corp., 26 F.3d 728, 735 (7th Cir. 1994). Liability based
upon a widespread practice requires a showing that a number of similar incidents establish an
unconstitutional pattern of conduct. Palmer v. Marion Cnty., 327 F.3d 588, 595–96 (7th Cir.
2003).

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Here, the Plaintiffs have not offered sufficient evidence to demonstrate that the Town of
Merrillville was the moving force behind the constitutional violations. First, the Plaintiffs have
not offered any evidence that it was the Merrillville Police Department’s express policy that led
to constitutional deprivations. Second, there is no evidence showing that either of the Defendant
Officers who were sued in this case had final policymaking authority. Third, the other individual
incidents that the Plaintiffs offer as evidence—Gary Carter in 2007, Valerie Green in 2008, and
Sean Nevils in 2015—involved factual allegations dissimilar from the Plaintiffs’ case and thus
fail to establish a widespread pattern of unconstitutional conduct. Arguing that the Defendant
Officers were not investigated for misconduct on other occasions is insufficient to establish a
widespread practice for purposes of § 1983 municipal liability. Thompson v. City of Chi., 472
F.3d 444, 454–55 (7th Cir. 2006) (“[T]he violation of police regulations . . . is completely
immaterial as to the question of whether a violation of the federal Constitution has been
established.”). Accordingly, the Town of Merrillville cannot be held liable under § 1983.

4.

State Law Claims
The Plaintiffs allege state law claims for intentional infliction of emotional distress and

for negligent hiring and retention. (Compl. ¶¶ 34–35.) However, they fail to specify in their
Complaint which claims are alleged against which Defendants. Accordingly, the Court analyzes
each claim in turn as to all Defendants.

a.

Intentional Infliction of Emotional Distress
In Indiana, a claim for intentional infliction of emotional distress requires a showing that

the defendant, by extreme or outrageous conduct, intentionally or recklessly caused the plaintiff
severe emotional distress. Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). “It is the intent to

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harm the plaintiff emotionally which constitutes the basis for the tort,” and the burden of proof in
establishing the tort is “rigorous.” Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011)
(quoting Cullison, 570 N.E.2d at 31). The evidence put forth shows that this claim only pertains
to the Defendant Officers. Viewing that evidence in a light most favorable to the Plaintiffs, the
Court concludes that the Defendant Officers’ actions were not “outrageous.” Even if the
Defendant Officers held an unreasonable belief that the Plaintiffs were the source of the
disturbance during the ceremony, their actions were not “atrocious, and utterly intolerable in a
civilized community.” Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999). Rather, the
Defendant Officers acted as the community had charged them to act, namely, to maintain order
and public safety at the graduation. The cases that the Plaintiffs rely upon involved situations of
life and death and are not persuasive here. Shemenski v. Chapieski, No. 03 C 0861, 2005 WL
991831, at *8–15 (N.D. Ill. Apr. 13, 2005) (finding that detaining the plaintiff’s husband when
their daughter was critically ill at a hospital constituted outrageous conduct); Inlow v. Wilkerson,
774 N.E.2d 51, 57 (Ind. Ct. App. 2002) (finding that the possibility that the defendant would bar
the plaintiff from a funeral was not extreme or outrageous, and at most “merely unreasonable”).
Accordingly, the Defendants are entitled to judgment as a matter of law on the Plaintiffs’
intentional infliction of emotional distress claim.8

b.

Negligent Hiring and Retention
In Indiana, a claim for negligent hiring and retention requires evidence of the following:

(1) a duty of care owed by an employer to a third person; (2) a breach of that duty; and (3) the
employer’s breach proximately caused injury to the third person. Scott v. Retz, 916 N.E.2d 252,

8

The Court’s determination obviates any need to address the Defendant Officers’ claim of
immunity under state law.

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257 (Ind. Ct. App. 2009). A claim for negligent hiring and retention is only available against an
employer when an employee “steps beyond the recognized scope of his employment to commit a
tortious injury upon a third party.” Bd. of Comm’rs of Indianapolis v. Pettigrew, 851 N.E.2d 326,
332 (Ind. Ct. App. 2006). There can be no claim for negligent hiring and retention if “the
employee was within the scope of his employment.” Id. In order for an employee to act within
the scope of employment, “the injurious act must be incidental to the conduct authorized or it
must, to an appreciable extent, further the employer’s business.” Barnett v. Clark, 889 N.E.2d
281, 283–84 (Ind. 2008) (citations omitted).
Here, the Plaintiffs have not argued that the Defendant Officers acted outside of the scope
their employment, and the Town of Merrillville stipulated in its briefing that they acted within
the scope of their employment. (Reply 14; Mot. Summ. J. 23, ECF No. 61.) The evidence
presented at summary judgment supports this finding. The Defendant Officers provided security
at the graduation of a public high school, in furtherance of the Police Department’s objectives.
Whether or not removing the Plaintiffs from the auditorium violated their constitutional rights,
the Defendant Officers acted to further their employer’s business. Accordingly, the Defendants
are entitled to judgment as a matter of law on the Plaintiffs’ negligent hiring and retention claim.

B.

Motion to Exclude

1.

Rule 702 and Daubert Standard
“The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and

the Supreme Court’s opinion in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).”
Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Rule 702 charges trial
judges with the responsibility of acting as “gatekeeper[s] with respect to testimony proffered
under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission.”
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Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999)). “The purpose of [the Daubert] inquiry is to vet the proposed testimony
under Rule 702’s requirements that it be ‘based on sufficient facts or data,’ use ‘reliable
principles and methods,’ and ‘reliably appl[y] the principles and methods to the facts of the
case.’” Lapsley v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Fed. R. Evid. 702). In
evaluating whether an expert’s proposed testimony meets the Daubert standard, the court is to
“scrutinize the proposed expert witness testimony to determine if it has ‘the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field’ so as to be
deemed reliable enough to present to a jury.” Lapsley, 689 F.3d at 805 (quoting Kumho Tire, 526
U.S. at 152). Whether to admit expert testimony rests within the discretion of the district court.
See Gen. Elec. v. Joiner, 522 U.S. 136, 142 (1997); Lapsley, 689 F.3d at 810 (“[W]e ‘give the
district court wide latitude in performing its gate-keeping function and determining both how to
measure the reliability of expert testimony and whether the testimony itself is reliable.’”)
(quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)). “The proponent
of the expert bears the burden of demonstrating that the expert’s testimony would satisfy the
Daubert standard” by a preponderance of the evidence. Lewis, 561 F.3d at 705; see also Fed. R.
Evid. 104(a) (“The court must decide any preliminary question about whether a witness is
qualified.”); Id. 702 advisory committee note (2000 Amends.) (“[T]he admissibility of all expert
testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the
burden of establishing that the pertinent admissibility requirements are met by a preponderance
of the evidence.”).
District courts apply the Daubert framework described above using a three-part analysis.
Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the Court must determine

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whether the proposed witness is qualified as an expert by knowledge, skill, experience, training,
or education. If so, the Court must then decide whether the reasoning or methodology underlying
the expert’s testimony is reliable. If these two requirements are met, the Court must assess
whether the expert’s proposed testimony will assist the trier of fact in understanding the evidence
or to determine a factual issue. See id. (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,
904 (7th Cir. 2007)).
“Although the court must decide questions of admissibility, the weight and credibility to
be accorded expert testimony is properly left to the jury.” Contractor Util. Sales Co. v. Certainteed Prods. Corp., 638 F.2d 1061, 1085 n.32 (7th Cir. 1981). The Defendant will have the
opportunity to expose those weaknesses at trial and, as the court in Daubert stated, “[v]igorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596.

2.

Analysis
The Defendants move to exclude the opinions of Joseph R. Blaettler. In support of their

Motion, the Defendants first argue that Mr. Blaettler’s background does not qualify him to offer
legal opinions on the constitutional claims in this case. Second, they argue that Mr. Blaettler had
no methodological basis for his opinions, as he failed to review key documents relating to the
Defendants’ hiring and training standards for its employees. Third, the Defendants argue that Mr.
Blaettler’s opinions are not relevant as to the claims in this case and would fail to assist a jury in
determining any of the fact questions presented here. The Plaintiffs argue that Mr. Blaettler’s
background is comparable to other experts who have offered legal opinions in police discipline,
policy, and procedure cases. Additionally, they argue that Mr. Blaettler may base his opinions
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upon the Plaintiffs’ version of the events, that he also has personal knowledge of many of the
facts that he bases his opinions upon, and that his opinions would assist a jury in determining any
of the issues presented in this case.
Because the Court did not find it necessary to consider Mr. Blaetter’s opinions and
testimony in order to rule on the Defendants’ Motion for Summary Judgment, the Court need not
rule on the Defendants’ Motion to Bar his opinions and testimony at this time. Accordingly, the
Motion to Bar Opinions and Testimony of Joseph R. Blaettler is denied without prejudice. The
Defendants are granted leave to renew their motion in a future instance should it be appropriate,
such as in a motion in limine at trial.

CONCLUSION
For the foregoing reasons, the Court DENIES the Defendants’ Motion to Bar Opinions
and Testimony of Joseph R. Blaettler [ECF No. 62] and GRANTS IN PART and DENIES IN
PART the Defendants’ Motion for Summary Judgment [ECF No. 60]. Summary Judgment is
DENIED as to Count I and GRANTED as to Counts II and III.

SO ORDERED on January 11, 2017.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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