English v. Davis et al

Filing 98

OPINION AND ORDER TAKING UNDER ADVISEMENT 84 MOTION for Summary Judgment by Defendant Lorenzo Davis; GRANTING 95 RULE 56 MOTION to Strike 94 Notice (Other) by Defendant Lorenzo Davis. Plaintiff Michael Dwayne English GRANTED 60 days from the da te of this Opinion and Order to file a supplemental brief and evidence supporting his claims. Defendant GRANTED 30 days from the date of Plaintiff's supplemental filings to file a supplemental response. Signed by Judge William C Lee on 3/10/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MICHAEL DWAYNE ENGLISH,
Plaintiff,
v.
LORENZO DAVIS,
Defendant.

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CIVIL NO. 2:15cv68

OPINION AND ORDER
This matter is before the court on a motion for summary judgment filed by the defendant,
Lorenzo Davis (“Davis”), on December 12, 2016. The plaintiff, Michael Dwayne English
(“English”), proceeding pro se, filed his response on January 3, 2017, to which Davis replied on
January 12, 2017.
Also before the court is a motion to strike portions of English’s Declaration, filed by
Davis on January 12, 2017. English has not responded to the motion to strike.
Summary Judgment
Summary judgment must be granted when “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). A genuine
issue of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties precludes summary judgment, however, since “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law” warrant a
trial. Id. To determine whether a genuine issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and draw all reasonable inferences in

that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly
supported summary judgment motion may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the court with the evidence she contends will
prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
Discussion
On February 24, 2015, English filed a pro se prisoner complaint against Davis, a Gary
police officer, and the City of Gary. [DE 1] On March 12, 2015, the case was dismissed without
prejudice. On March 26, 2015, the court vacated the dismissal order and provided English up
until April 30, 2015 in which to file an amended complaint. [DE 11].
On April 30, 2015, English filed an Amended Pro Se Prisoner Complaint against Davis,
the Gary Police Department, the City of Gary and Prosecutor Monica Rogina. [DE 14]. English
claimed that he was denied due process because Davis allegedly maliciously coerced Tatiana
Gant to testify that English was involved in a murder that occurred on June 15, 2005.
English’s Amended Complaint also alleges theories of relief which include the following:
violation of 42 U.S.C. §1983; failure to protect and prevent (by inadequate training); malicious
prosecution; malicious process; abuse of process; negligence; intentional and negligent infliction
of emotional distress; false arrest; false imprisonment; defamation of character; professional
misconduct; cruel and unusual punishment; and various constitutional violations. English
correctly alleged that Davis was a Gary Police officer. However, English did not file a Tort
Claims Notice as required by I.C. 34-13-3-8. On May 4, 2015, the court dismissed claims
against all the other Defendants, but allowed English’s case to proceed against Davis. On May 2,
2016, Davis filed an answer with the court. [DE 40]
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English’s Amended Complaint alleged that on January 31, 2013, Davis charged him with
murder related to an offense that took place on June 6, 2005, but that he was never mentioned as
a suspect in the offense. The Gary Police reports produced to English in discovery show that two
Gary police officers, Detective Nielsen and Davis, arrested English on an active Tippecanoe
County Warrant, and an active Lake County Warrant for murder. The warrant was issued by
Judge Stefaniak, of Lake County.
English claimed that Davis was “malevolent” towards English for personal reasons and
that Davis coached and coerced Tatiana Gant to give false testimony and/or a statement. On
September 9, 2016, Davis served a Request for Production of Documents on English. Davis
requested English to produce the following: (1) Any and all documents that support that Ms. T.
Gant confessed to being coached or coerced by Lorenzo Davis; (2) Any and all documents that
support any contention that Defendant, Lorenzo Davis engaged in witness tampering; and (3)
Any and all documents relating to or supporting any of the factual allegations contained in
English’s Complaint.
To date, English has not responded to Davis’ request to produce documents to support the
allegations made in his Amended Complaint. In contrast, Davis has responded to discovery
served by English and has provided the following information under oath: (1) The FBI and the
Gary Police Department were involved in English’s case and no one advised Davis to stop his
investigation of English nor was he cited for any ethics violations; (2) Davis has been involved in
more than 200 murder cases and all of his arrests have been with probable cause; (3) Davis had
probable cause to arrest English; (4) Davis does not make the decision whether to prosecute an
individual after being charged; (5) The arrest of English was with probable cause and Davis does
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not know English personally; and (6) Davis was not aware of what English was exposed to while
in the Lake County Jail.
In support of his motion for summary judgment, Davis first argues that English’s state
law claims are barred because he failed to comply with the Indiana Tort Claims Act as well as the
applicable two-year statute of limitations for tort claims. Under Indiana law, 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. VanValkenburg v. Warner, 602 N.E.2d 1046 (Ind. Ct. App. 1992); See I.C. 34-13-3-8.
The Notice of Tort Claim requirement applies not only to political subdivisions, but also to
employees of political subdivisions as well. VanValkenburg, 602 N.E.2d at 1048. Furthermore,
an action for injury to a person or character must be commenced within two years after the cause
of action accrues. See I.C. 34-11-2-4.
In the present case, English’s Amended Complaint is based on an arrest by Davis that
occurred on January 31, 2013. Davis arrested English in his capacity as a police officer for the
Gary Police Department. Like in the VanValkenburg case, the Notice of Tort Claim requirements
would not only apply to the City of Gary, but to its employees – i.e. Officer Davis. Davis argues
that there is no evidence that English filed the appropriate Notice of Tort Claim with respect to
Davis.
In English’s Response to the Davis’ Motion for Summary Judgment, English has failed to
allege admissible evidence to show he complied with the Indiana Tort Claims Act. In the case of
an incarcerated claimant, such as English, the doctrine of substantial compliance should govern,
and thus compliance with the statutory notice requirements should be determined on a case by
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case basis. McGill v. Indiana Dep't of Correction, 636 N.E.2d 199, 204 (Ind. Ct. App. 1994). If a
claimant has made a good faith effort to comply with the notice requirements and the purpose of
the notice requirement has been satisfied, any delays caused by his status as prisoner should
permit the court to grant an exemption from a strict application of the statutory deadline. McGill
v. Indiana Dep't of Correction, 636 N.E.2d at 204.
In McGill, the Plaintiff, an inmate, was injured while mowing the lawn at the Indiana
Youth Center on June 3, 1992. Id. at 201. In November, 1992, McGill prepared his notices of tort
claim, which are required by the Indiana Tort Claims Act to be filed within 180 days of the
injury. Id. Plaintiff signed up to go to the law library, on November 27, 1992, in order to mail the
notices, but the library was closed. Id. On Monday, November 30, 1992, the 180th day following
the injury, Plaintiff again tried to use the law library, but it was again closed. Id. However,
Plaintiff was able to give the notices to an Indiana Youth Center law library worker, who mailed
the notices that afternoon. Id. The notices were postmarked December 1, 1992, and were received
by the Defendants on December 2, 1992 and December 3, 1992, respectively. The court found
that Plaintiff substantially complied with the notice requirement because had the law librarians
been present on November 27 and 30, 1992, the Plaintiff would have complied with the notice
requirement. Id. at 204. Therefore, the court permitted a notice deadline exemption. Id.
In English’s Response in the present case, English states that he attached a letter to his
response. This letter, dated July 7, 2013, was addressed to the Clerk’s Office and stated that
English was filing a civil claim against Davis. The letter further stated that English was filing a
false arrest claim first and would file the rest of his claims at a later date. The letter then stated
that English was arrested on January 31, 2013 for murder and the murder charge was dismissed
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on March 28, 2013. English stated that he would be able to give Davis proper notification if he
could get the cause number from the Clerk’s Office. In English’s Response, he claimed that the
letter served as notice to the Davis.
In the present case, unlike the situation in McGill, English did not send notice directly to
the Davis, but to the Clerk’s Office. Also, English failed to provide any evidence that he did
indeed receive the cause number and in turn gave notice to the Defendant of the state law tort
claims. Unlike in McGill, where the plaintiff proffered evidence showing the steps he took in
order to comply with the Indiana Tort Claims Act, English simply attached a letter to his
Response Brief which does not show that Davis ever received any notice of the state tort law
claims that were filed against him.
“[I]t is settled law that the Indiana Tort Claims Act shields a government employee from
liability for tortious conduct if the employee was acting within the scope of his ... duties.”
Pinkney v. Thomas, 583 F. Supp. 2d 970, 979 (N.D. Ind. 2008). “[C]onduct ... of the same
general nature as that authorized, or incidental to the conduct authorized,” is within the
employee's scope of employment. Pinkney v. Thomas, 583 F. Supp. 2d at 980.
In his Response, English claimed that he did not have to abide by the notice requirements
because Davis’ alleged acts of manufacturing false evidence and coercing witnesses were outside
the scope of his employment as a police officer. However, English has not proffered any
evidence supporting his allegations. In contrast, Davis produced Gary Police reports which
showed that Davis arrested English on an active Tippecanoe County Warrant, and on an active
Lake County Warrant for murder. Moreover, Davis proffered evidence that English’s arrest was
with probable cause. Because arresting a perpetrator on active warrants is within a police
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officer’s scope of employment, Davis is protected under the Indiana Tort Claims Act.
It appears that English has not substantially complied with the notice requirements of the
Indiana Tort Claims Act. However, in an abundance of caution, because English is a pro se
prisoner, the court will give English additional time to present evidence that he has complied
with the Indiana Tort Claims Act by showing that he timely informed Davis of the state law
claims against him. In the absence of such evidence, the court will have no choice but to dismiss
the state law claims.
Davis argues that, In any event, all of English’s state law claims are barred by the twoyear statute of limitations. An action for injury to a person or character must be commenced
within two years after the cause of action accrues. See I.C. 34-11-2-4. In the present case, the
two-year deadline for English to file his lawsuit would have been January 31, 2015. English did
not file his Complaint until February 24, 2015. English has not addressed the statute of
limitations issue in his response. Again, it appears that English has not complied with the statute
of limitations. However, due to English’s pro se status, the court will grant English additional
time to present evidence showing that he filed his cause of action within the two-year time limit,
or that he qualifies for an exception to the limitation. If English cannot present such evidence,
the court will be required to dismiss the claims.
Next, Davis argues that English’s constitutional claims must be barred as untimely and
should also be dismissed for lack of evidentiary support. Because there is no federal statute of
limitations for § 1983 actions, courts apply the most appropriate state statute of limitations. The
Indiana statute of limitations applicable to § 1983 actions is the two-year period found in
Ind.Code § 34–11–2–4. Campbell v. Chappelow, 95 F.3d 576, 580 (7th Cir.1996). The statute of
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limitations is an affirmative defense, but if a plaintiff “pleads facts that show his suit is timebarred or otherwise without merit, he has pleaded himself out of court.” Tregenza v. Great
American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1085,
114 S.Ct. 1837, 128 L.Ed.2d 465 (1994). “[A] plaintiff can plead himself out of court and is ‘out
of luck’ if he alleges facts that show he is not entitled to a judgment. Early v. Bankers Life and
Casualty Co., 959 F.2d 75, 79 (7th Cir.1992) (citations omitted).
In the present case, as noted, English’s Complaint was filed late. English’s Complaint
was not filed until February 24, 2015. English alleges that the relevant events took place on
January 31, 2013. Thus his Complaint should have been filed by January 31, 2015. English has
not addressed this statute of limitations issue in his Response. However, recognizing that
English is a pro se prisoner, the court will grant him additional time to respond to the statute of
limitations argument. The court cautions English that the statute of limitations is an absolute bar
to his claims if he cannot present evidence showing that he filed his case in time. Therefore,
English should make every effort to show the court that he filed his Complaint in time, or that he
meets some sort of exception to the statute of limitations.
Davis further argues that, in any event, even if English’s claims were not time-barred,
English’s claims that his constitutional rights were violated is not supported by case law or the
evidence. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has
probable cause to believe that an individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment, arrest the offender.”) Schertz v.
Waupaca County, 875 F.2d 578, 582 (7th Cir.1989)(holding that the existence of probable cause
for arrest is an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or
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malicious prosecution).
In the present case, the designated evidence shows the Gary Police, the FBI, Gary
Detective Nielsen and Davis arrested English on an active Tippecanoe County arrest warrant for
murder. The warrant was issued by Lake County Judge Stefaniak, and there is no evidence that
the warrant was recalled or issued improperly. Likewise, there is no evidence that Davis violated
English’s Fifth Amendment right against self-incrimination or his right to counsel under the
Sixth Amendment. Many of the constitutional claims raised by English, particularly claims under
the Eighth, Ninth and Tenth Amendment have no basis or applicability. English was provided the
opportunity in discovery to provide evidence to support his claims against Davis and declined to
do so. Despite Davis’ discovery requests, English has not provided any documents or evidence to
support his claims.
English’s Response Brief is void of any evidence that would support his constitutional
claims. In his Response, English attempts to save his constitutional claims by reiterating facts
which are not supported by any applicable evidence. English’s “Statement of Disputed Factual
Issues” contains statements that are not supported by any admissible evidence. Federal Rule
56(c)(1) states that a party asserting that a fact cannot be or is genuinely disputed must support
the assertion by citing to specific evidence in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purpose of the motion only), admissions, interrogatory answers, or other material.
Moreover, in considering a motion for summary judgment, the district court is not
required to scour the record in search of evidence to defeat the motion; the nonmoving party must
identify with reasonable particularity the evidence upon which the party relies. Hemsworth v.
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Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). A party who bears the burden of proof
on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by
specific factual allegations, that there is a genuine issue of material fact that requires trial. Id. The
evidence relied upon in defending a motion for summary judgment must be competent evidence
of a type otherwise admissible at trial. Id.
Davis contends that English’s evidence is not admissible, which brings the court to
Davis’ motion to strike. Davis claims that in English’s Declaration in opposition to Defendant’s
Motion for Summary Judgment, English’s declarations in paragraphs five, six, seven, and eight
are based on hearsay. Additionally, Davis contends that in English’s Declaration paragraphs
nine, ten, and eleven are conclusory in nature.
Under Federal Rule 56(c)(4), an affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated. “It is the
policy of Rule 56 to allow the affidavit to contain evidentiary matter, which if the affiant were in
court and testifying on the witness stand, would be admissible as part of his testimony.” Albiero
v. Town of Goodland, Ind., No. 4:11-CV-15-JVB, 2012 WL 13699, at *2 (N.D. Ind. Jan. 3,
2012). It is the function of the court, with or without a motion to strike, to review carefully
statements of material facts and to eliminate from consideration any argument, conclusions, and
assertions that are unsupported by the documented evidence of record offered in support of the
statement. Univ. Healthsystem Consortium v. UnitedHealth Grp., Inc., 68 F. Supp. 3d 917, 921
(N.D. Ill. 2014). [A]ny statements or responses that contain legal conclusions or argument, are
evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not
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supported by evidence in the record will not be considered by the court in ruling on Defendant's
summary judgment motion. Id.
In the present case, English’s declarations in paragraphs five, six, seven, and eight are
based on hearsay. The declarations involved conversations English had with Tatiana Gant where
she allegedly told English that Davis coached and coerced her into offering false testimony and
Davis allegedly told her that he did not like English. The declarations also involved
conversations in which Prosecutor Monica Rogina allegedly told Robert Varga that if English
stopped having conversations with Tatiana Gant, he would be charged with obstruction of
justice. Clearly, the declarations offered by English are hearsay within hearsay and are not
admissible.
English’s declarations in paragraphs nine, ten, and eleven are conclusory in nature. As
stated in Federal Rule 56(c)(4), a declaration used to support or oppose a motion must be set out
on facts that would be admissible in evidence. Plaintiff’s conclusory statements are not supported
by any evidence. Thus, the statements are inadmissible and will be stricken because they are not
supported by any facts that would be admissible in evidence.
As the record now stands, English has no admissible evidence to support his allegation
that Davis acted improperly by coaching and/or coercing Tatiana Gant into offering false
testimony. However, in an abundance of caution, the court will grant Davis additional time to
come forth with admissible evidence. If English wishes to present the testimony of Tatiana
Gant, he must do so directly, by submitting an affidavit or declaration by Gant. He cannot rely
on hearsay. Likewise, if English wishes to present the testimony of anyone else, he cannot put
that testimony in his own declaration. Rather, he must present an affidavit or declaration from
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each of those persons.
Considering English’s pro se prisoner status, the court deems it best to hold the present
motion for summary judgment under advisement, thereby giving English additional time to
properly prepare his case now that he has been informed of its inadequacies.
Conclusion
On the basis of the foregoing, Davis’ motion for summary judgment [DE 84] is hereby
TAKEN UNDER ADVISEMENT. English is granted 60 days from the date of this order to file
a supplemental brief and evidence supporting his claims. Davis is granted 30 days from the date
of English’s supplemental filings to file a supplemental response.
Further, Davis’ motion to strike [DE 95] is hereby GRANTED.

Entered: March 10, 2017.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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