THOMPSON v. CIESIELSKI et al

Filing 101

ENTRY ON MOTIONS FOR SUMMARY JUDGMENT: The Defendants' 82 motion for summary judgment is GRANTED and summary judgment is entered in favor of all of the Defendants on all of Thompson's claims except her c laim that Defendant Schwomeyer stole money from her. Thompson's 87 motion for summary judgment is DENIED on all claims except her claim that Defendant Schwomeyer stole money from h er; her motion for summary judgment is TAKEN UNDER ADVISEMENT with regard to that claim pending further briefing as ordered above. No final judgment will be entered at this time; the Court will enter final judgment after the remaining issue is resolved. Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 12/4/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PATRICIA DIANE THOMPSON,
Plaintiff,
vs.
CITY OF INDIANAPOLIS, et al.,
Defendants.

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) CAUSE NO. 1:12-cv-375-WTL-MJD
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ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
This cause is before the Court on cross motions for summary judgment.1 The motions are
fully briefed and the Court, being duly advised, GRANTS the Defendants’ motion and DENIES
IN PART AND TAKES UNDER ADVISEMENT IN PART the Plaintiff’s motion to the
extent and for the reasons set forth below.
I. STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “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.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences

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The Plaintiff is proceeding pro se in this case and was provided with the notice required
by Local Rule 56-1(k). She has filed a variety of documents relating to her own summary
judgment motion and the Defendants’ summary judgment motion (dkt. nos. 87, 89, 90, 95, 96,
and 97), as well as an earlier filing regarding the application of res judicata (dkt. no. 79). The
Court has reviewed and considered all of her filings.

in that party’s favor.”). However, “[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. Finally, and especially
applicable in this case, the non-moving party bears the burden of specifically identifying the
relevant evidence of record, and “the court is not required to scour the record in search of
evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723
(7th Cir. 2001).
II. FACTUAL BACKGROUND
The following facts are the facts of record as viewed in the light most favorable to
Plaintiff Patricia Thompson.
In the early morning hours of March 8, 2010, the adult son of Plaintiff Patricia
Thompson, Antwan Rush, was stopped by Indianapolis Metropolitan Police Department
(“IMPD”) officers while driving a blue Chevy Trailblazer that was registered to Thompson.
Antwan was arrested for driving with a suspended license. That same day, an arrest warrant was
issued for Antwan related to a separate criminal case. One of the charges against Antwan in that
case was possession of cocaine.
Antwan was released for the driving with a suspended license charge before officers were
able to execute the arrest warrant for the cocaine possession charge. In an attempt to locate
Antwan to execute the arrest warrant, detectives with IMPD’s Violent Crimes Unit (“VCU”)
conducted surveillance of places that he was known to frequent, including a home at 4210 North
Carrollton Avenue in Indianapolis. That home was owned by Thompson. While watching that
residence, officers observed 30-35 people enter and exit the home. Defendant Garth

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Schwomeyer, an IMPD Sergeant, observed torn plastic baggies and latex gloves on the front
porch and in the front yard.
At approximately 5:00 p.m. on March 8, 2010, Thompson arrived at 4210 Carrollton
Avenue to meet Antwan and take him to retrieve the Trailblazer, which the IMPD had had towed
when he was arrested. Thompson observed approximately ten police officers outside of the
residence and was informed that they had a warrant for Antwan’s arrest. Sergeant Schwomeyer
asked Thompson for permission to search the residence, but she told him that she could not assist
him. When he said he would obtain a search warrant, Thompson told him to do what he needed
to do in order to do his job. Thompson was at the scene for approximately fifteen minutes and
then left because Schwomeyer was screaming at her.
Later that evening, Defendant Matthew Stevenson, an IMPD detective, applied for and
was granted search warrants for the Trailblazer that Antwan had been driving, 4210 North
Carrollton Avenue, and the attached residence at 4212 North Carrollton Avenue. The following
items were found in the Trailblazer: power and crack cocaine; a baggy of marijuana; an
application for a social security card filled out in Antwan’s name with the address 5774 San
Paulo Circle, Apartment A., Indianapolis, and mail addressed to Thompson at 4210 N. Carrollton
Avenue. The search of 4210 North Carrollton Avenue yielded multiple bags of cocaine and mail
addressed to Thompson at that address.
After contraband was found at 4210 North Carrollton Avenue, Detective Stevenson
obtained a search warrant to search Thompson’s residence, 5774 San Paulo Circle, Apartment A,
Indianapolis, and her vehicle, a red Nissan Xterra. That search warrant was executed in the early
morning hours of March 9, 2010. No contraband was found in the apartment. Sergeant
Schwomeyer searched Thompson’s purse and removed $950. As he was leaving the apartment,

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he told Thompson he was going to buy a television with the money. Ultimately only $740 was
returned to Thompson.
At one point during the search, Schwomeyer obtained Thompson’s car keys from her and
went outside. Detective Condon later searched Thompson’s Nissan. He reported that papers
were strewn about the vehicle and that he found a small bag of cocaine in the driver’s side door
pocket. Thompson does not dispute Detective Stevenson’s account, but surmises that,
unbeknownst to Stevenson, Schwomeyer planted the drugs and tossed the papers around before
Stevenson conducted the search. Thompson did not know of any cocaine in the vehicle, and the
papers were not scattered in it when she left it. No one but Thompson had driven the Nissan
since October 2009, when her son Antonio was shot. Prior to that incident, she let Antonio drive
it.
Thompson was arrested for possession of cocaine and transported to the Marion County
Jail, where she remained for a few hours before posting bond. No charges were filed against her
at that time. However, on March 24, 2010, Thompson was charged with two counts of
conspiracy to commit dealing in cocaine, a Class A felony, and one count of possession of
cocaine, a Class D felony. She was arrested and spent nine days in jail at that time. Her case
went to trial on May 6, 2011; all charges against her were dismissed when the judge granted her
Indiana Trial Rule 41(B) motion during trial.
On May 17, 2011, Thompson filed a lawsuit in the Marion County Superior Court against
the City of Indianapolis, the IMPD, and Detective Matthew Stevenson, alleging “corruption,
conducting illegal searches, filing false reports, fabrication and manipulating paperwork to get a
conviction.” The defendants moved to dismiss for failure to state a claim on July 6, 2011.
Thompson filed a motion to amend her complaint and an amended complaint on July 14, 2011.

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On July 22, 2011, the court granted the defendants’ motion to dismiss (which was directed to the
original complaint) and dismissed the case with prejudice, without acknowledging the motion to
amend or the amended complaint.2
III. DISCUSSION
Thompson asserts claims against the City of Indianapolis, Sergeant Schwomeyer,
Detective Stevenson, Detective Deddish, and Detective Michael Condon pursuant to 42 U.SC. §
1983 for violations of her rights under the Fourth and Fourteenth Amendments. Specifically, she
alleges that she was subjected to unlawful search, invasion of privacy, unlawful arrest, and
unlawful prosecution. She also alleges that she was defamed when a detective told her
supervisor at her place of employment that she was involved in drug trafficking.
A. Defendants’ Motion for Summary Judgment
1.

Res Judicata

The Defendants first argue that all of Thompson’s claims in this case are barred by res
judicata in light of the dismissal of her state court complaint with prejudice. Because the
allegedly preclusive judgment was rendered by an Indiana court, Indiana law must be applied to
determine whether this suit is barred by res judicata. Arlin-Golf, LLC v. Village of Arlington
Heights, 631 F.3d 818, 821 (7th Cir. 2011). As the Indiana Court of Appeals recently noted,
“[t]he doctrine of res judicata acts to prevent repetitious litigation of disputes that are essentially
the same.” Angelopoulos v. Angelopoulos, ____ N.E.2d ____, 2013 WL 5827979 at 5 (Ind.
App. 2013). The branch of res judicata applicable here, claim preclusion,
applies where a final judgment on the merits has been rendered and acts as a
complete bar to a subsequent action on the same issue or claim between those
parties and their privies. When claim preclusion applies, all matters that were or
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While the Defendants assert in their statement of fact that the court denied Thompson’s
motion to amend, it does not appear that the court acknowledged that motion at all.
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might have been litigated are deemed conclusively decided by the judgment in the
prior action. The following four requirements must be satisfied for claim
preclusion to apply as a bar to a subsequent action: (1) the former judgment must
have been rendered by a court of competent jurisdiction; (2) the former judgment
must have been rendered on the merits; (3) the matter now in issue was, or could
have been, determined in the prior action; and (4) the controversy adjudicated in
the former action must have been between the parties to the present suit or their
privies.
Id. With regard to Thompson’s claims against the City of Indianapolis and Detective Stevenson,
all of these requirements are met. There is no question that the judgment below was rendered by
a court of competent jurisdiction, and “a dismissal with prejudice constitutes a dismissal on the
merits.” Fox v. Nichter Const. Co., Inc., 978 N.E.2d 1171, 1181 (Ind. App. 2012). Thompson
argues that res judicata does not apply because this case is brought pursuant to § 1983, while her
state case was not; however, “[t]wo claims arising from the same facts are one claim for res
judicata purposes, and may not be split.” Wilson v. City of Chicago, 120 F.3d 681, 687 (7th Cir.
1997); see also Hilliard v. Jacobs, 957 N.E.2d 1043, 1048 (Ind. App. 2011) (“Claim splitting,
regardless of the reason for it, is not allowed in Indiana courts.”). In other words, “multiple legal
theories supporting relief on account of one transaction must be litigated at one go.” Hilliard,
957 N.E.2d at 1048 (citations omitted).
So all of Thompson’s claims against the City of Indianapolis and Stevenson are barred by
res judicata, and those Defendants are granted summary judgment on that basis.3 The
Defendants argue that they are all in privity with one another and therefore Thompson’s claims
against all of them are barred. They are incorrect. “Even if a plaintiff's right to relief arises from
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Thompson argues, not unsympathetically, that the state court erred in dismissing her
case with prejudice without giving her the opportunity to amend her complaint. While that may
have been error, that error cannot be corrected by this Court; rather, Thompson either could have
filed a motion raising the error with the state court or appealed that judgment. She apparently
did neither, opting instead to file this suit. Thompson also suggests that res judicata does not
apply because the state court judgment was “fraudulent,” but she cites to no evidence to support
that allegation.
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what is realistically viewed as a single episode, if it is a right against multiple parties-joint
tortfeasors, if the right arises under tort law-he needn't join them in one suit unless there is
privity among those parties, for in that event separate suits against them are treated as the
equivalent of separate suits against the same party.” Manicki v. Zeilmann, 443 F.3d 922, 926 (7th
Cir. 2006) (citations omitted).
The term privity describes the relationship between persons who are parties to an
action and those who are not parties to an action but whose interests in the action
are such that they may nevertheless be bound by the judgment in that action.
Whereas a “party” is one who is directly interested in the subject matter and has a
right to make a defense or control the proceedings, a “privy” is one who after
rendition of the judgment has acquired an interest in the subject matter affected by
the judgment. The term includes those who control an action, though not a party
to it, and those whose interests are represented by a party to the action. As such,
an entity does not have to control a prior action, or be a party to a prior action, for
privity to exist. Therefore, in determining the parties for res judicata purposes,
this court looks beyond the nominal parties and treats those whose interest are
involved as the real parties.
MicroVote General Corp. v. Indiana Election Comm'n, 924 N.E.2d 184, 196 (Ind. App. 2010).
Defendants Schwomeyer, Deddish, and Condon’s interests were not implicated by Thompson’s
suit against Stevenson and the City; accordingly, they were not in privity with them and the
preclusive effect of that suit does not extend to Thompson’s claims against them.
Defendant Deddish
Thompson’s only claim against Defendant Deddish is that she lied when she said that she
saw numerous people enter the residence at 4210 Carrollton, stay for a short time, and then
leave, which she believed was indicative of drug trafficking occurring inside the residence. This
information was included in the probable cause affidavit used to obtain a search warrant for 4210
Carrollton; that search, in turn, produced evidence that led to the search of Thompson’s
apartment and vehicle and Thompson’s arrest and prosecution. Deddish also testified about her
observations at Thompson’s criminal trial, which Thompson alleges constituted perjury.
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Thompson’s argument is two-fold. First, she points to the fact that Deddish admitted
during her testimony that she could not actually see the door from her vantage point; rather, she
saw people go up onto the porch and “disappear,” then “reappear” on the porch later, from which
she inferred that they had entered and then exited the house. The fact that she may have said that
she saw people enter the house when she actually drew that inference from her observations may
make her guilty of using imprecise language, but it does not render her testimony perjurious.
Thompson also argues that Deddish could not have seen the porch from her vantage point.
Thompson did not see Deddish on the day in question; rather, she testified that she made the
determination, based on Deddish’s testimony about where she was located, that it was not
possible for her to see the porch from that spot. Thompson’s testimony on this issue—which is
not based on personal knowledge, but rather on her understanding of where Deddish was while
she was conducting surveillance—is not sufficient evidence to support a finding that Deddish
lied about what she observed. Accordingly, Deddish is entitled to summary judgment on
Thompson’s claims against her.
Defendant Condon
Thompson does not articulate a viable claim against Defendant Condon. It appears that
she originally believed Condon was responsible for planting drugs in her vehicle, but she later
determined that he was “the only one telling the truth” and she now believes that the drugs
Condon found were planted by Schwomeyer. She also asserts that Condon falsely stated the
location of the Trailblazer at some point; however, she does not articulate how this was a
violation of her constitutional rights. Accordingly, Condon is entitled to summary judgment.
Defendant Schwomeyer

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Thompson’s allegations against Schwomeyer can be divided into four categories. First,
she alleges that he conspired with Stevenson to produce false probable cause affidavits that led to
her arrest and prosecution. She asserts that Schwomeyer dictated the allegedly false information
that Stevenson recited in the probable cause affidavits; however, none of the evidence she points
to supports that allegation. Assuming that the affidavits contained false information, Thompson
has not pointed to any evidence that Schwomeyer had anything to do with them.
Second, Thompson alleges that Schwomeyer planted drugs in her Nissan, and perhaps in
4210 Carrollton as well. Again, she has no evidence to support that claim. With regard to 4210
Carrollton, she points to photographs that she alleges show that drugs were planted, but even if
the Court were to assume the photographs support such a conclusion, there is no evidence that
Schwomeyer participated or knew of the planting. With regard to the Nissan, Thompson
testified that Schwomeyer asked for her keys and went outside, that no papers were scattered in
the vehicle when she left it and she was not aware of any drugs in it, and that when Condon
searched it there were papers scattered in it and drugs were found. This, without more, is not
sufficient evidence for a reasonable factfinder to conclude that Schwomeyer planted the drugs.
Third, Thompson alleges that either Schwomeyer or Stevenson defamed her by telling
her employer that she was involved in drug trafficking. Thompson has no evidence that
Schwomeyer was the person who spoke to her supervisor; accordingly, even assuming the facts
alleged by Thompson constitute defamation, she has not demonstrated that Schwomeyer is liable
for it.
Schwomeyer is entitled to summary judgment on these claims. Thompson’s fourth claim
against him is addressed in the context of Thompson’s motion for summary judgment, as it is not
discussed by the Defendants.

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B. Thompson’s Motion for Summary Judgment
All of the arguments made in Thompson’s motion for summary judgment are resolved by
the Court’s ruling on the Defendants’ motion, except for one. In her motion and in her
complaint, Thompson alleges that Schwomeyer stole $210 from her purse when he searched it.
Thompson testified that she had $950 in her purse, that she saw Schwomeyer remove it, that he
told her he was going to buy a television with her money, and that she ultimately received only
$740 back, which was the amount that was contained on the police inventory. If this testimony
is credited, a reasonable jury could find that Schwomeyer stole the money.
The Defendants fail to address this claim. However, Thompson failed to cite to the
evidence that supports her allegation—the Court happened upon it in her deposition testimony,
which was submitted by the Defendants for other purposes. Given Thompson’s pro se status, the
Court is willing to overlook her failure; however, pursuant to Federal Rule of Civil Procedure
56(e)(1), the Court will give Schwomeyer an opportunity to address the claim in light of that
failure. Within 28 days of the date of this Entry, Schwomeyer shall file a response addressing
only the issue of whether Thompson (or perhaps Schwomeyer) is entitled to summary judgment
on her claim that Schwomeyer stole money from her. Schwomeyer should address whether her
claim states a constitutional violation redressable under § 1983—or, for instance, whether state
law provides an adequate remedy—as well as submitting any contrary evidence he may have.
Thompson may file a reply brief within 14 days of the date of Schwomeyer's brief.
IV. CONCLUSION
For the reasons set forth above, the Defendants’ motion for summary judgment is
GRANTED and summary judgment is entered in favor of all of the Defendants on all of
Thompson’s claims except her claim that Defendant Schwomeyer stole money from her.

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Thompson’s motion for summary judgment is DENIED on all claims except her claim that
Defendant Schwomeyer stole money from her; her motion for summary judgment is TAKEN
UNDER ADVISEMENT with regard to that claim pending further briefing as ordered above.
No final judgment will be entered at this time; the Court will enter final judgment after the
remaining issue is resolved.
SO ORDERED: 12/04/2013

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by United States Mail to:
Patricia Thompson
1144 W. 79th St.
Indianapolis, IN 46260
Copies to all counsel of record via electronic notification

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