Ware v. Gary School City et al

Filing 101

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Court GRANTS in part and DENIES in part Defendant City of Gary, Indiana's 94 Motion for Summary Judgment. The Court grants summary judgment in favor of Defendant City of Gary and against Plaintiff Glenn D. Ware on the federal claims brought under 42 USC § 1983, and denies the City of Gary's request for summary judgment as to the Indiana state law claims. Signed by Magistrate Judge Paul R Cherry on 4/7/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GLENN D. WARE,
Plaintiff,
v.
GARY COMMUNITY SCHOOL
CORPORATION, MICHAEL BROWN,
and CITY OF GARY, INDIANA,
Defendants.

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CAUSE NO. 2:15-CV-42-PRC

OPINION AND ORDER
This matter is before the Court on Defendant City of Gary, Indiana’s Motion for Summary
Judgment Pursuant to Federal Rule of Civil Procedure 56 and N.D. L.R. 56-1 [DE 94], filed by
Defendant City of Gary, Indiana on March 1, 2017. For the reasons set forth below, Defendant’s
Motion for Summary Judgment is granted in part and denied in part.
PROCEDURAL BACKGROUND
Plaintiff Glenn D. Ware initiated this civil rights action on February 3, 2015. The controlling
complaint is the Third Amended Civil Rights Complaint, filed on November 27, 2015. The City of
Gary filed an Answer to the Third Amended Civil Rights Complaint on December 11, 2015. In this
Answer, the City of Gary does not raise the affirmative defense of failure to provide notice under
the Indiana Tort Claims Act.
The case proceeded through discovery. On March 1, 2017, the City of Gary filed the instant
Motion for Summary Judgment. On March 31, 2017, and April 3, 2017, the Court changed the
briefing schedule for another Motion for Summary Judgment filed in this case, but the Court
explicitly stated that those orders did not affect the briefing deadlines for the instant Motion for

Summary Judgment. Ware has not filed a response to the instant motion, and his deadline to do so
has passed.
The parties orally agreed on the record to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this
case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
STANDARD OF REVIEW
The Federal Rules of Civil Procedure require that a motion for summary judgment be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, 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). “Summary judgment is appropriate when no material fact is disputed and the
moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could
find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566
(7th Cir. 2014).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply
“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to

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support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798
F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,
the moving party is not required to support its motion with affidavits or other similar materials
negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;
Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
“Once the moving party puts forth evidence showing the absence of a genuine dispute of
material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating
a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by merely resting on his pleadings. See
Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the movant is
entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to

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evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
MATERIAL FACTS
Northern District of Indiana Local Rule 56-1 requires the moving party to file with the Court
a “‘Statement of Material Facts’ that identifies the facts that the moving party contends are not
genuinely disputed.” N.D. Ind. L.R. 56-1(a). In response, the opposing party is obligated to file with
the Court a “‘Statement of Genuine Issues’ 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). “When a
responding party’s statement fails to dispute the facts set forth in the moving party’s statement in
the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.” Cracco
v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citing Smith v. Lamz, 321 F.3d 680, 683
(7th Cir. 2003)) (addressing the equivalent local rule for the United States District Court for the
Northern District of Illinois); see also Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.
1994) (noting that the Seventh Circuit Court of Appeals has routinely sustained “the entry of
summary judgment when the non-movant has failed to submit a factual statement in the form called
for by the pertinent rule and thereby conceded the movant’s version of the facts”).
In the present case, the City of Gary, as the moving party, has submitted a Statement of
Material Facts. Ware, however, has not submitted a response brief, much less a Statement of
Genuine Issues. Therefore, the following facts asserted by the City of Gary and supported by
admissible evidence are considered to exist without controversy for the purposes of this Motion for
Summary Judgment.

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Ware alleges that, on or about February 3, 2013, his constitutional rights were violated by
Officer Michael Brown. On February 3, 2013, Brown was not employed by the Gary Police
Department as either a police officer or a reserve officer.
ANALYSIS
Local Rule 7-1(d)(4) provides that “[t]he court may rule on a motion summarily if an
opposing party does not file a response before the deadline.” N.D. Ind. L.R. 7-1(d)(4). The trial
court’s interpretation and application of its Local Rules is subject to great deference. See Cichon v.
Exelon Generation Co., LLC, 401 F.3d 803, 809-10 (7th Cir. 2005); Cuevas v. United States, 317
F.3d 751, 752 (7th Cir. 2003); Tenner v. Zurek, 168 F.3d 328, 331 (7th Cir. 1999). A trial court has
the authority to strictly enforce its Local Rules, even if summary judgment results. See Koszola v.
Bd. of Educ., 385 F.3d 1104, 1109 (7th Cir. 2004), overruled on other grounds by Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 764-65 (7th Cir. 2016); Waldridge., 24 F.3d at 921-22 (upholding
the trial court’s strict enforcement of local rules on summary judgment).
As described above, Federal Rule of Civil Procedure 56(e) provides that “[i]f a party . . . fails
to properly address another party’s assertion of fact . . . , the court may . . . 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). Thus, summary judgment is appropriate when the
non-movant does not respond, and the “motion demonstrates that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law.” Johnson v.
Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994).

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The City of Gary moves for summary judgment in this matter. Ware brings claims for relief
under 42 U.S.C. § 1983 and state law claims for intentional infliction of emotional distress and
negligent infliction of emotional distress. The Court will address the federal claims first.
Section 1983 provides in relevant part:
Every person who, under color of any 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 thereof 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, suit in equity, or other proper proceeding for redress
....
42 U.S.C. § 1983. Section 1983 itself does not establish substantive rights; rather, it is a vehicle for
vindicating federal rights conferred elsewhere. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).
In this case, Plaintiff seeks redress for alleged excessive force in violation of the Fourth and
Fourteenth Amendments to the United States Constitution, retaliation in violation of the First
Amendment to the United States Constitution, and deliberately indifferent policies, practices,
custom, training, and supervision in violation of the First, Fourth, and Fourteenth Amendments to
the United States Constitution.
The standard for municipal liability is set forth in Monell v. Department of Social Services
of the City of New York , 436 U.S. 658 (1978). For the purpose of the instant motion, the municipal
entity at issue is the City of Gary. Municipalities cannot be held liable for § 1983 violations under
the theory of respondeat superior; rather, a local government may be held liable only “when [the]
execution of a government’s policy or custom . . . inflicts the injury” for which the government is
sued under § 1983. Monell, 436 U.S. at 694.
Thus, to demonstrate liability by the City of Gary for the alleged § 1983 claims, Ware must
establish an official policy or custom through:
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(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) an allegation that the constitutional injury was caused by a person
with final policymaking authority.
Teesdale v. City of Chicago, 690 F.3d 829, 834 (7th Cir. 2012) (quoting Estate of Sims v. Cty. of
Bureau, 506 F.3d 509, 515 (7th Cir. 2007)). There must also be a causal relationship between the
policy and the alleged constitutional violation such that the official policy is the “moving force”
behind the constitutional deprivation. Id. at 833 (citing Estate of Sims, 506 F.3d at 515); see also
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
The City of Gary argues that Ware has failed to show that the City of Gary implemented a
policy, practice, or custom that inflicted deprivation of Ware’s constitutional rights. Ware has
presented no evidence that such a policy, practice, or custom exists. Consequently, the City of Gary
is entitled to summary judgment on the section 1983 claims.
Ware also brings claims of torts under Indiana state law. The City of Gary’s sole argument
for summary judgment on these claims is that Ware failed to comply with the requirements of the
Indiana Tort Claims Act (ITCA). Under the ITCA, a tort claim against a political subdivision is
barred unless notice is filed with the governing body of the political subdivision and the
subdivision’s risk management commission within 180 days after the loss occurs. Ind. Code § 34-133-8. “Once a defendant raises failure to comply with the ITCA’s notice requirements, the burden
shifts to the plaintiff to prove compliance.” Alexander v. City of South Bend, 256 F. Supp. 2d 865,
875 (N.D. Ind. 2003) (citing Davidson v. Perron, 716 N.E.2d 29, 24 (Ind. Ct. App. 1992)). However,
failure to comply with the notice requirement is waived if it is not asserted in a responsive pleading.
Schoettmer v. Wright, 992 N.E.2d 702, 706 (Ind. 2013). The City of Gary did not raise failure to
comply with the ITCA as an affirmative response in its Answer to the Third Amended Civil Rights
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Complaint. Consequently, the City of Gary has failed to show that it is entitled to summary judgment
on the state law claims.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendant City
of Gary, Indiana’s Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56
and N.D. L.R. 56-1 [DE 94]. The Court grants summary judgment in favor of Defendant City of
Gary and against Plaintiff Glenn D. Ware on the federal claims brought under 42 U.S.C. § 1983. The
Court denies the City of Gary’s request for summary judgment as to the Indiana state law claims.
SO ORDERED this 7th day of April, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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