Williams v. Deputy Rod Hainje et al

Filing 57

MEMORANDUM ORDER AND OPINION, ADOPTING 54 REPORT AND RECOMMENDATIONS re 22 MOTION for Summary Judgment filed by Deputy Rod Hainje, Deputy Mick Gillen, Deputy Glen Keller, Deputy Zehman, 48 RULE 56 MOTION to Strike 42 Response in Opposition to Motion (Portion of Supplemental Affidavit)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA H A M M O N D DIVISION AT LAFAYETTE ANTHONY WILLIAMS, P l a i n t i f f, v. R O D HAINJE, D e fe n d a n t. ) ) ) ) ) ) ) ) )

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M E M O R A N D U M , ORDER & OPINION

This matter is before the Court on Defendant Rod Hainje's objections to Magistrate J u d g e Andrew P. Rodovich's Report and Recommendation entered on January 17, 2008 (D o c k e t No. 54) recommending that Defendant's motion for summary judgment and his m o tion to strike a portion of Plaintiff's supplemental affidavit be denied. The reader's f a m ilia rity with the entire January 17 Report and Recommendation is assumed, and this C o u r t has reviewed briefs on the motions and the Report and Recommendation. For the re a so n s that follow, the Court overrules Defendant's objections, and adopts the Report and R ec o m m en d atio n as modified herein. Accordingly, Defendant's motion for summary

ju d g m e n t, including his claim of qualified immunity, and his motion to strike a portion of P la in tif f 's supplemental affidavit are denied. I . Standard of Review The district court must make a de novo determination of those portions of the

m a g is tra te judge's disposition to which specific written objection is made. Johnson v. Zema S ys te m s Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citing Fed. R. Civ. P. 72(b)). II. Discussion A. Defendant's Motion for Summary Judgement 1 . Excessive Force Claim G e n e ra lly, under Federal Rule of Civil Procedure 56(c), summary judgment is proper o n ly where "the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits. . . show that there is no genuine issue as to any material fact and th e moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U .S . 317, 322-23 (1986); Williams v. Excel Foundry & Machine, Inc, 489 F.3d 309, 310 (7th C ir. 2007). Even a self-serving affidavit, if supported by facts in the record, can defeat summary ju d g m e n t by creating a genuine issue of material fact. See, e.g., Buie v. Quad/Graphics, Inc., 3 6 6 F.3d 496, 504 (7th Cir. 2004). Additionally, the Seventh Circuit has held that district c o u rt's have great discretion in deciding whether to allow a party to change damaging d e p o sitio n testimony with a supplemental summary judgment affidavit. Stinnett v. Iron W o rks Gym/Executive Health Spa, Inc., 301 F.3d 610, 614 (7th Cir. 2002). However, under the so-called "sham affidavit" rule, most courts will disregard a f f i d a v its which blatantly contradict prior sworn testimony. Beckel v. Wal-Mart Associates, In c ., 301 F.3d 621, 624 (7th Cir 2002) (noting that "[a]ffidavits, though signed under oath

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b y the affiant, are typically written by the affiant's lawyer, and when offered to contradict the af fian t's deposition are so lacking in credibility as to be entitled to zero weight in summary ju d g m e n t proceedings unless the affiant gives a plausible explanation for the discrepancy; th e explanation, moreover, must come in the affidavit itself, not in the a lawyer's musings, w h ic h are not evidence" (internal citations omitted)); but see Buckner v. Sam's Club, 75 F.3d 2 9 0 , 292-93 (7th Cir 1996) (holding that an affidavit and deposition testimony are not b la ta n tly contradictory where the two statements can possibly be consistent with one a n o th e r) . The issue in this case comes down to whether the Plaintiff's statements in his d e p o sitio n and affidavit are, in fact, contradictory such that there is no genuine issue of m a te ria l fact (Docket Nos. 42-2, 50-3). For the purpose of a Fourth Amendment excessive f o rc e analysis, one must examine the totality of the circumstances to determine: (1) whether th e force used was excessive in light of the severity of the crime for which the plaintiff was b e i n g arrested; (2) whether the plaintiff posed a threat to the safety of the officer or others; a n d (3) whether the plaintiff was resisting the officer or attempting to flee. Graham v. C o n n o r, 490 U.S. 386, 394 (1989); Holmes v. Village of Hoffman Estates, 511 F.3d 673, 685 (7 th Cir. 2007). This Court disagrees with the Report and Recommendation as to when the Plaintiff b e c am e aware of police pursuit. The Plaintiff stated in his deposition that he knowingly fled f ro m law enforcement while in Boone County, Indiana. In clear contrast, in his affidavit, the

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P la in tif f stated that he did not notice law enforcement until after he exited Interstate 65 at H ig h w a y 38, which is in Tippecanoe County, Indiana. To the extent that the Plaintiff's a f f id a v it contradicts his earlier testimony regarding when he became aware of police pursuit, th is Court will disregard the affidavit. Nonetheless, when examining the totality of the circumstances in the present case, this C o u rt finds, the discrepancies regarding whether and how much Plaintiff resisted arrest to b e a genuine issue of material fact that precludes summary judgement. Although Defendant a rg u e s that Plaintiff's affidavit contradicts his earlier testimony regarding his "rude, insolent, o r angry manner" at the scene of the arrest, the Plaintiff gave a plausible explanation for the d isc re p a n c y in his affidavit.1 This is proper according to the Seventh Circuit's decision in B e c k el. Moreover, even with the additional police reports that the Defendant submitted a lo n g with his objections to the Report and Recommendation, at the summary judgement s ta g e this Court is required to view all facts and draw all reasonable inferences in favor of th e nonmoving party, the Plaintiff. Saucier v. Katz, 533 U.S. 194, 201 (2001). Though the

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In his affidavit, Plaintiff notes that he understood the question regarding his "rude, in s o le n t, or angry manner" as asking him about his state of mind following the dog b ite rather than his state of mind when the motorcycle struck the Defendant. This is a plausible explanation for the Plaintiff's answer. This Court specifically notes that th is particular question was actually two questions posed to the Plaintiff during his g u ilty plea, one immediately after the other: "And was that done in a rude, insolent o r angry manner? You were upset at the that time following what had occurred? C o rre c t? " To which the Plaintiff replied, "Yes." (Docket No. 22-2 at 8). Such a c o m p o u n d question serves to increase the plausibility that the Plaintiff misunderstood th e question. 4

D e f en d a n t and his fellow officers agree that the Plaintiff was actively resisting arrest at the p o in t of the motorcycle stop, the Plaintiff's account of the scene is markedly different. In his M a rc h 15, 2006 guilty plea Plaintiff's answer about resisting arrest was indiscernible to the c o u rt reporter and he stated that he did not knowingly strike Defendant with the motorcycle. (D o c k e t No. 22-2 at 7-8) In his affidavit, Plaintiff stated that he fully complied with police o rd e rs and did not resist being handcuffed. (Docket No. 42-2 at 2). Thus, based on the in f o rm a tio n before this Court, making all reasonable inferences in favor of the Plaintiff, this C o u rt finds that the issue of Plaintiff's behavior at the scene of the crime, an issue that is c e n tra l to an excessive force analysis under Graham, to be a genuine issue of material fact su c h that summary judgement is inappropriate.2 Accordingly, this Court denies Defendant's m o tio n for summary judgement on the excessive force claim. 2. Defense of Qualified Immunity T h e defense of qualified immunity requires courts to enter judgment in favor of a g o v ern m en t employee unless the employee's conduct violates "clearly established statutory o r constitutional rights of which a reasonable person would have known." Harlow v. F itzg era ld, 457 U.S. 800, 818 (1982); Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001).

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A lth o u g h this Court holds that the Plaintiff's affidavit and guilty plea are not c o n tra d ic to ry, even if this Court were to disregard Plaintiff's affidavit, as Defendant re q u e ste d , summary judgement would still not be appropriate. The limited account o f Plaintiff's behavior at the scene of the crime detailed in the guilty plea still leaves o p e n a genuine issue of material fact as to Plaintiff's behavior at the scene of the c rim e , and whether Defendant's actions were reasonable in light of that behavior. 5

In his objection to the Report and Recommendation, the Defendant states that "It is not clear th a t the force used on Mr. Williams was excessive in light of the facts reasonably perceived b y [the Defendant.]" (Docket No. 55 at 8). Indeed, the Defendant is correct. However, it is c o n v e r s e ly not clear that the force used on Mr. Williams was not excessive. Judging the facts in the light most favorable to the Plaintiff, using the force of a police dog on a person o f f e rin g little or no resistence would clearly violate the Fourth Amendment such that a " c le a rly established right" has been violated. Because there remains a genuine issue of m a ter ial fact regarding the particulars of Plaintiff's behavior at the scene of the arrest, this C o u rt adopts the findings of the Report and Recommendation and denies Defendant's claim o f qualified immunity. B. Motion to Strike a Portion of Plaintiff's Supplemental Affidavit T h e Defendant made no objection to the Report and Recommendation's findings on th e issue of Defendant's motion to strike a portion of Plaintiff's supplemental affidavit for a lack of timeliness and responsiveness. Nonetheless, this Court has reviewed the

D ef en d an t's motion and wholly adopts the Report and Recommendation as to the motion. T h u s, for the reasons detailed in the Report and Recommendation, the Court denies the m o tio n to strike. III. Conclusion In finding genuine issues of material fact present in this case, this Court O V E R R U L E S Defendant's objections, and ADOPTS the Report and Recommendation as

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m o d if ie d herein. Thus, defendant's motion for summary judgment, including his claim of q u alified immunity, (Docket No. 22) and his motion to strike a portion of Plaintiff's s u p p le m e n ta l affidavit (Docket No 48) are DENIED. SO ORDERED.

Date: September 15, 2008

/s/ ALLEN SHARP ALLEN SHARP, JUDGE UNITED STATES DISTRICT COURT

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