Ware v. Gary School City et al

Filing 111

OPINION AND ORDER: The Court hereby GRANTS in part and DENIES in part the 93 Motion for Summary Judgment. The Court grants the motion as to all claims brought against GCSC and as to the state law claims brought against Brown for actions within the scope of his employment and denies the motion as to the remaining claims against Brown. Signed by Magistrate Judge Paul R Cherry on 8/2/2017. (jss)

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

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

OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment [DE 93], filed by
Defendants Gary Community School Corporation (GCSC) and Michael Brown on March 1, 2017.
For the reasons set forth below, the Motion 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. On February
9, 2016, the Court dismissed the claims brought against Brown in his official capacity.
GCSC and Brown filed the instant Motion for Summary Judgment on March 1, 2017. Ware
filed a response on May 15, 2017. GCSC and Brown filed a reply on May 30, 2017. The Motion is
fully briefed and ripe for ruling.
Ware, Brown, and GCSC 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
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 50708; Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).

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“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 nonmoving 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 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.

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MATERIAL FACTS
Ware’s Deposition Testimony
At his deposition, Ware testified as follows. On February 3, 2013, at around 9:00 p.m., an
incident occurred with Brown at a gas station. Ware was in the gas station, and as he was paying for
his items, a car pulled up and “kind of blocked the gas station’s door.” (Pl.’s Ex. A, 43:21-22, ECF
No. 105-2). Brown recognized the car as a GCSC police car. Brown entered the gas station in full
uniform with a badge that identified him as M. Brown. Brown told Ware that, “[w]ith those big
[expletive] pants you got on, if you was to run from me, you couldn’t get away.” Id. at 44:7-9. Ware
replied that “[w]ith your [expletive] car blocking the gas station door, and I’m handicapped, I
couldn’t run from you no way.” Id. at 44:9-11.
Ware proceeded to his vehicle. When he was approximately four feet from the vehicle,
Brown ran out of the gas station and called to Ware. Ware turned to Brown and Brown swung at
Ware with his right hand. Ware blocked the swing. Brown told Ware to put Ware’s hands on the
vehicle. Ware laid on the car with his palms up. Brown ran up behind Ware, grabbed Ware by the
back of the neck, lifted him off the ground, and forced his face into the hood of the car. Brown
pulled his weapon out. Brown proceeded to smash Ware’s face into Ware’s vehicle. Brown also
searched Ware’s vehicle without consent. When Ware indicated that he did not consent to the search,
Brown told Ware to be quiet and to stand to the side of the vehicle.
Ware called the Gary Police around 9:30 p.m. that same night to report the incident. Ware
was told to return to the gas station, and when he returned to the station, Brown was still there.
Officer Allen Glenn met with Ware. Officer Glenn informed Ware that Brown was a GCSC Officer
and not a Gary Police Officer. GCSC communicated that Brown was its employee.

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Ware spoke with an Officer Horton twice within two weeks of the incident. In his statement
of facts, Ware asserts that Horton is an officer for GCSC. However, none of the cited evidence states
who Horton’s employer is.
Ware also submits other assertions in his statement of facts, but the pages of Ware’s
deposition that were cited in support of these statements were not submitted to the Court or do not
support the assertions, so the Court does not consider them.
Police Report
A police report provides the following account of the same incident:
Glenn Ware states on 2.3.13 at 9:00pm he was at the gas station at 15th Ave
and Clark Rd about to exit his vehicle when Gary School City Officer Michael
Brown pulled up close to his vehicle. G. Ware states he told M. Brown that he was
blocking the door and that he was handicap [sic].
G. Ware then states M. Brown ran up behind him and grabbed him by the
back of his neck and then slammed him on the hood of his wife [sic] car, he then
forced his head to the vehicle hood and stated to G. Ware not to talk to him like that.
G. Ware states M. Brown then searched his vehicle without his or his wife [sic]
permission and tossed items all around the vehicle.
G. Ware then states he asked M. Brown why he his [sic] violated civil rights,
stated M. Brown told him to get in vehicle and leave.
(Def.’s Ex. 2 at 4, ECF No. 93-4).
Other Matters
Ware testified that he sent a tort claim form to GCSC 179 days after the incident. On August
2, 2013, the 180th day after the incident, delivery of Priority Mail items addressed to GCSC Legal
Services and GCSC Superintendent of School was attempted. Tracking records show that no
authorized recipient was available on that date, and notices were left. The items were delivered three
days later on August 5, 2013.

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Brown was hired as a reserve officer with the Gary Police Department on September 17,
2014. Brown had a second job with Lake County, Indiana.
ANALYSIS
In his Third Amended Complaint, Ware brings claims under 42 U.S.C. § 1983 for alleged
used of excessive force and for retaliation for Ware’s exercise of First Amendment rights against
Brown and state law claims of intentional infliction of emotional distress and negligent infliction
of emotional distress against Brown and GCSC. Ware also brings a claim of municipal liability
under 42 U.S.C. §§ 1981, 1983 against GCSC, but Ware concedes in his response that he cannot
show GCSC to be liable on this claim.
GCSC and Brown argue for summary judgment in their favor. They also assert that the Court
lacks subject matter jurisdiction to hear this case and that Brown should be dismissed because Ware
did not sue Brown in Brown’s individual capacity. For the reasons stated below, the Court has
subject matter jurisdiction, Ware has sued Brown in his individual capacity, and the motion is
granted as to the claims brought against GCSC and the state law claims brought against Brown for
actions within the scope of his employment and denied as to the remaining claims brought against
Brown.
A. Subject Matter Jurisdiction
Defendants state that this lawsuit should be dismissed for lack of subject matter jurisdiction,
but they fail to provide argument in support of this statement. The Court, in an Opinion and Order
dated February 9, 2016, explained that the Court has subject matter jurisdiction over this suit
pursuant to 28 U.S.C. §§ 1331, 1367(a). For the reasons stated in that Opinion and Order, this Court
exercises subject matter jurisdiction over the claims in this litigation.

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B. Brown’s Status as a Party
Brown argues that he should be dismissed from this case because Ware did not follow the
Court’s instruction to “specifically name” Brown in the caption of the Third Amended Complaint.
Brown is included in the caption of the Third Amended Complaint as a defendant, but he argues that
the Court ordered Ware to list the capacity in which he sued Brown in the caption. The Court also
addressed this argument in the February 9, 2016 Opinion and Order:
The Court’s November 4, 2015, Opinion and Order, which advised Ware to
“specifically name” each Defendant or face dismissal of claims, was instructing
Ware to not use “et al.” in the caption of the complaint. The Court did not place a
burden on Ware to explicitly state in the caption the capacity in which each
defendant is being sued.
(Op. and Order, 4, ECF No. 84). Thus, Brown has been sufficiently named in the Third Amended
Complaint.
Brown also argues that, because Ware did not list the capacity in which suit was brought
against Brown, the Court should deem the suit to be brought against Brown in his official capacity
only. In support, Brown cites Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991). However, the Hill
court held that “[t]he point is not that an official capacity suit is to be presumed any time that the
complaint fails to explicate clearly the capacity in which the defendant is to be sued.” Id. at 1373.
Further, Ware indicated in paragraph 23 of his Third Amended Complaint that he brought suit
against Brown in Brown’s individual and official capacities.1 Ware has explicitly stated that Brown
is sued in his individual capacity, and Brown’s argument that he has not been so sued is without
merit.

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The official capacity claims have been dismissed.

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C. Civil Rights Claims
Ware alleges three claims for violations of his civil rights: excessive force and free speech
retaliation claims against Brown, and a municipal liability claim against GCSC. Defendants argue
that they are entitled to summary judgment on all three claims. In response, Ware concedes that he
cannot prove the municipal liability claim. Thus, the Court grants summary judgment in favor of
GCSC on that claim. The Court will next address the civil rights claims against Brown.
The implicated statute 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, Ware seeks redress for alleged excessive force in violation of the Fourth and Fourteenth
Amendments to the United States Constitution and alleged retaliation in violation of the First
Amendment to the United States Constitution.
To state a claim under § 1983, a plaintiff must show (1) that he “was deprived of a right
secured by the Constitution or federal law” (2) “by a person acting under color of law.” Thurman
v. Vill. of Homewood, 446 F.3d 682, 687 (7th Cir. 2006).
In support of his motion for summary judgment on the civil rights claims, Brown argues that
he was not acting under color of law because he was not a Gary police officer at the time of the
incident. Brown asserts that Ware’s claim states that Brown was a Gary policy officer at the time
of the incident and that, because Brown was not, Ware cannot prove his claim. However, Ware’s
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Third Amended Complaint alleges that Brown was a “GCSC officer/Gary police officer.” (Third
Am. Compl. ¶ 45, ECF No. 71). Thus, Ware pleaded alternatively that Brown was a GCSC officer
or a Gary officer. Ware need not prove that Brown was a Gary police officer. To fall under the
purview of 42 U.S.C. § 1983, a person need only be acting under color of law. Public school
employees can act under color of law. Doe v. Smith, 470 F.3d 331, 340-341 (7th Cir. 2006) (holding
that the jury could find that a middle school dean of students acted under color of law), abrogated
on other grounds by Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009).
Brown does not argue that the facts of the instant litigation show that he was not acting under
color of law. Instead, he argues that he categorically cannot be found to have acted under color of
law because he was not a Gary police officer at the time of the alleged incident. Because Brown is
incorrect that he could only act under color of law if he were a Gary police officer, this argument
fails.
Brown makes no other argument for summary judgment on the excessive force claim, so the
motion is denied as to that claim. Brown makes another argument for summary judgment in his favor
on the free speech retaliation claim, which the Court now addresses.
Brown argues that Ware cannot make out a prima facie case of a violation under the First
Amendment. To make out a prima facie case, Ware must show that (1) he engaged in activity
protected by the First Amendment; (2) he suffered a deprivation that would likely deter First
Amendment activity; and (3) the First Amendment activity was at least a motivating factor in
Brown’s decision. Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012). Once a plaintiff makes
out a prima facie case, the burden shifts to the defendant to show that the harm would have occurred
without the First Amendment activity. Id. at 251-52.

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Brown states that Ware cannot make out a prima facie case because Ware cannot show that
he was exercising free speech, that Brown was a Gary police officer, or that Ware suffered a
deprivation that would deter First Amendment activity. However, Brown provides almost no
argument in support of this statement. His sole argument is that Brown cannot be found to have
acted under color of law because he was not a Gary police officer, which the Court addressed above.
Contrary to Brown’s statement, Ware has put forth evidence that he spoke to Brown,
exercising Ware’s right to free speech, immediately before the alleged attack. Further, Ware’s
evidence of the severity of the alleged attack, provided in the form of deposition testimony, shows
that Brown’s alleged actions would deter exercise of free speech. The third prong of the prima facie
case is not in dispute. Therefore, Ware has made out the prima facie case. Brown has not argued or
put forth evidence that he would have made the same decision if Ware had not exercised his right
to free speech. Therefore, this claim survives the motion for summary judgment.
D. Indiana State Law Tort Claims
Defendants assert that the Indiana state law tort claims of intentional infliction of emotional
distress and negligent infliction of emotional distress fail because Ware did not provide proper
notice as required under the Indiana Tort Claims Act (ITCA). The ITCA notice requirement applies
to claims brought against political subdivisions and against political subdivisions’ employees for
actions within the scope of the employees’ employment. Chang v. Purdue Univ., 985 N.E.2d 35, 51
(Ind. Ct. App. 2013).
GCSC makes no other argument in favor of summary judgment on the tort claims, so the sole
issue to be decided on these claims is whether Ware provided the required notice to GCSC. Claims
against political subdivisions are barred unless notice is filed with the governing body of that

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political subdivision within 180 days after the loss at issue occurred. Id. “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)).
Ware argues that the police report of the incident names Brown as a GCSC officer and
includes the information required in the ITCA notice, so that report satisfies ITCA. However, the
police report does not provide notice that Ware intended to sue, which is a required part of notice
under ITCA. See Kerr v. City of South Bend, 48 N.E.3d 348, 356 (Ind. Ct. App. 2015). The report
does not satisfy the notice requirement of ITCA. Further, Ware identifies no evidence showing that
GCSC received a copy of the police report, so this is an independent ground for finding that the
police report does not constitute proper ITCA notice.
Ware also asserts that he provided the required notice via United States Postal Service. Ware
states that he sent his ITCA notice to GCSC, and that delivery was attempted on Friday, August 2,
2013, the 180th day after the alleged incident, but no one signed for the delivery, so delivery was
not made on that date. Delivery was achieved on Monday, August 5, 2013. Ware presents this
information but makes no argument that the notice should be deemed delivered on August 2, 2013.
Further, though Ware testified that he sent the tort claim form, there is no evidence in the record of
what was in the notice provided. Defendants’ contention is that it was not provided proper tort claim
notice, and Ware’s evidence does not prove that whatever notice he sent to GCSC was proper. Ware
has not met his burden to prove compliance with the notice requirement of ITCA. As a result, the
motion for summary judgment is granted as to the tort claims brought against GCSC and as to the
tort claims brought against Brown for actions within the scope of his employment. Because claims

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brought against a governmental employee outside the scope of his employment do not require notice
under ITCA, the remaining state tort claims against Brown survive.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the
Motion for Summary Judgment [DE 93]. The Court grants the motion as to all claims brought
against GCSC and as to the state law claims brought against Brown for actions within the scope of
his employment and denies the motion as to the remaining claims brought against Brown.
SO ORDERED this 2nd day of August, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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