KEATON v. HANNUM et al

Filing 252

ENTRY - Gardner is not entitled to absolute immunity and her motion for summary judgment [dkt. 133 ] is denied on this basis. Consistent with Rule 56 of the Federal Rules of Civil Procedure, however, the parties are given notice and a reasonable t ime to respond to the Court's intention to grant summary judgment in favor of Gardner because there is no evidence upon which a reasonable jury could conclude that she is responsible for any violation of Keaton's constitutional rights. Signed by Judge Sarah Evans Barker on 3/14/2014. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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MARK KEATON,
Plaintiff,
vs.
DAVE HANNUM, LESLIE SLONE,
CHRISTINE ZOOK, REBA GARDNER,
JACKIE DAKICH,
Defendants.

Case No. 1:12-cv-00641-SEB-MJD

Entry Discussing Defendant Gardner’s Motion for Summary Judgment
And Directing Further Proceedings
Plaintiff Mark Keaton has sued Reba Gardner, a paralegal in the Monroe County
Prosecutor’s office. Keaton alleges that Gardner made false allegations which led to false
criminal charges being filed against him. (Dkt. 7, Amend. Compl., ¶¶ 21 & 23). Specifically,
Keaton argues that on May 11, 2010, and again on August 10, 2010, Gardner provided false
testimony under oath in support of the State of Indiana’s Informations charging Keaton with
stalking his ex-girlfriend, defendant Christine Zook, in violation of his Constitutional rights. Dkt.
214 at p.1. His claims are brought pursuant to 42 U.S.C. § 1983. Gardner seeks summary
judgment in her favor on the basis that she is entitled to absolute immunity from civil liability.
Keaton has opposed that motion. See dkt. 214.
For the reasons explained below, Gardner is not entitled to absolute immunity and her
motion for summary judgment [dkt. 133] is denied on this basis. Consistent with Rule 56 of the
Federal Rules of Civil Procedure, however, the parties are given notice and a reasonable time to

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respond to the Court’s intention to grant summary judgment in favor of Gardner because there is
no evidence upon which a reasonable jury could conclude that she is responsible for any
violation of Keaton’s constitutional rights.
Standard of Review
The motion for summary judgment in this civil rights action, as with any such motion,
must 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). The substantive law
identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute about a material fact is genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. If no reasonable jury could find for the
non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372 (2007).
Undisputed Factual Background
At all times relevant to this cause, Gardner worked as a paralegal in the Monroe County
Prosecutor’s Office. At some point in September of 2008, Gardner began signing charging
informations as an ordinary part of her job duties. In any given month, Gardner signs between 20
and 100 charging informations; it is possible she may sign more than 100 a month, but it is less
likely that she would sign less than 20 in a month.
The only person Gardner may have spoken with regarding the original and amended
charging information against Keaton was defendant Dakich, the deputy prosecutor on Keaton’s
case and Gardner’s boss. Upon the decision and at the request of the deputy prosecutor, Gardner
signed Keaton’s charging informations as the “affiant.” The deputy prosecutor had already
signed the informations when Gardner signed them.

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The Information appears as follows:1

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See dkt. 130-6. The Court was unable to locate a copy of the amended Information in the record.
Accordingly, the Court assumes that it is substantially similar to the original Information.

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Indiana Code § 35-34-1-2(b)
The only action Gardner took in regards to Keaton’s criminal case in Monroe County was
signing the charging information and the amended charging information. Gardner testified that
she signed the charging informations as required by Indiana Code § 35-34-1-2(b) and as directed
by the deputy prosecutor. Keaton considers the Monroe County Prosecutor’s Office procedure by
which a paralegal, such as Gardner, signs a charging information pursuant to § 35-34-1-2(b) to
be inappropriate. For the reasons explained below, this Court agrees with Keaton.
Indiana Code § 35-34-1-2(b) provides:
An indictment shall be signed by:
(1) the foreman or five (5) members of the grand jury; and
(2) the prosecuting attorney or his deputy.
An information shall be signed by the prosecuting attorney or his deputy and
sworn to or affirmed by him or any other person.
Gardner appears to argue that all informations are required to be signed by the
prosecuting attorney and another person (regardless of their knowledge of the facts alleged) for
no other reason than that the statute requires such action. This interpretation renders the words
“sworn to or affirmed by” meaningless. The purpose of this provision is not to create an extra
step for prosecutors but to “foreclose the filing of frivolous charges by imposing the penalties of
perjury upon the prosecuting witness.” See Lashley v. State, 745 N.E.2d 254, 259-260 (Ind. Ct.
App. 2001) (citing Hendricks v. State, 426 N.E.2d 367, 370 (Ind. 1981) (holding that verification
requirement of delinquency petition serves to foreclose bringing of frivolous petitions by
imposing penalties of perjury on petitioner)); see also Ind. Code § 35-34-1-2.4(c) (“A person
who makes a false affirmation or verification under this section may be prosecuted under IC 3544.1-2-1.”).
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Gardner was not in a position to verify either the original or amended informations. She
was not involved in the investigation, nor did she review any evidence which would have
supported the informations. See State v. Riley, 980 N.E.2d 920, 923 (Ind. Ct. App. 2013) (finding
policy behind the requirement of a signed affidavit in the information was upheld where
individual who had viewed the incident on video tape swore to the incident under penalty of
perjury). Gardner simply signed as her supervisor instructed. There was no reason for her to have
signed either information; the deputy prosecuting attorney’s signature was sufficient. Deputy
Prosecuting Attorney Dakich presumably reviewed the materials upon which the information
was based, and then signed and swore to those informations as required by § 35-34-1-2(b).
Under these circumstances it was improper for Gardner to swear under oath as to the facts
alleged in the information.
Immunity from Civil Liability
Gardner argues that she is entitled to summary judgment because she is entitled to
absolute immunity from civil liability under 42 U.S.C. § 1983. Gardner claims that she is entitled
to absolute immunity from suit because all of her actions were taken within the course and scope
of her employment with the Monroe County Prosecutor’s Office. She explains that she signed
the informations to assist in the initiation of the judicial proceedings. It is true that absolute
immunity covers prosecutorial functions such as the initiation and the pursuit of a criminal
prosecution, the presentation of the state’s case at trial, and other conduct that is “intimately
associated” with the judicial process. Mendenhall v. Goldsmith, 59 F.3d 685, 689 (7th Cir. 1995).
But Gardner is not a prosecutor and absolute immunity cannot be understood to cover all actions
taken at the direction of the prosecutor.

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In addition, Gardner’s actions were not necessary to the initiation of the criminal
proceedings against Keaton. It was the prosecutor, who is shielded by absolute immunity, who is
actually responsible for the decision to prosecute. See Rehberg v. Paulk, 132 S.Ct. 1497, 1508
(2012) (discussing prosecutor’s role). In addition, there is no plausible basis on which to
conclude that Prosecutor Dakich relied on the testimony of Gardner in deciding whether or not to
initiate criminal charges against Keaton. Under these circumstances, Gardner should not be
understood to be a “complaining witness.” The Supreme Court has explained that a complaining
witness played a distinctive function during the period when § 1983’s predecessor was enacted.
“At that time, the term ‘complaining witness’ was used to refer to a party who procured an arrest
and initiated a criminal prosecution.” Rehberg, 132 S.Ct. at 1507 (2012) (citing Malley v. Briggs,
475 U.S. 335, 340 (1985) (complaining witness “procure[s] the issuance of an arrest warrant by
submitting a complaint”)); Wyatt v. Cole, 504 U.S. 158, 164–165 (1992) (complaining witness
“set[s] the wheels of government in motion by instigating a legal action”). Consistent with
Indiana law and the undisputed facts of this case, Gardner did not and could not have procured
Keaton’s arrest or initiated the criminal prosecution against him.
Judgment Independent of the Motion
The parties are now notified pursuant to Rule 56(f) that absent any timely objection
summary judgment shall be entered in favor of defendant Gardner on grounds not raised by
either party. Specifically, this Court intends to hold that there is no evidence that Gardner is
responsible for any violation of Keaton’s constitutional rights.
As noted, the action is brought pursuant to 42 U.S.C. ' 1983. This statute Ais not itself a
source of substantive rights, but merely provides a method for vindicating federal rights
elsewhere conferred.” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (citing Baker v.

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McCollan, 443 U.S. 137, 144 n.3 (1979)). “[T]he first step in any [' 1983] claim is to identify
the specific constitutional right infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). The
amended complaint names Gardner in Counts II, III, and IV.
Count II alleges that Gardner was responsible for violating Keaton’s rights relating to his
prosecution. Count II, however, has been abandoned by Keaton. See dkt. 215 at p. 29. Even if
this Count was pursued, the evidence reflects that Gardner was not responsible for bringing the
criminal prosecution against Keaton. In Indiana, that responsibility belongs to the prosecutor and
no one else. The evidence reflects that Deputy Prosecutor Dakich did not rely on Gardner’s
testimony in filing the criminal charges against Keaton; Dakich signed the informations before
Gardner did and Gardner only acted based on the prosecutor’s explicit instructions. Finally, even
if Gardner’s actions conflict with Indiana Code § 35-34-1-2(b), the violation of a state statute is
not actionable under ' 1983. Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003)(“42 U.S.C. '
1983 protects plaintiffs from constitutional violations, not violations of state laws or . . . .”).
Under these circumstances, Keaton cannot show that Gardner was responsible for the denial of
any constitutional right as alleged in Count II of the Amended Complaint.
Count III alleges that Gardner violated Keaton’s equal protection rights. A class-of-one
equal protection claim like Keaton’s requires at a minimum proof that the defendant intentionally
treated Keaton differently from others situated similarly to him and that there was no rational
basis for this difference in treatment. Thayer v. Chiczewski, 705 F.3d 237, 254 (7th Cir. 2012).
There is no evidence that Gardner treated Keaton differently from others situated similarly to
him. Instead the evidence reflects that Gardner routinely signed the informations placed in front
of her by the deputy prosecuting attorney. Accordingly, Gardner’s actions did not violate
Keaton’s equal protection rights.

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Finally, Count IV alleges that Gardner retaliated against Keaton for exercising his First
Amendment rights. The evidence reflects, however, that Gardner knew nothing about Keaton
when she signed the informations. Gardner could not have retaliated against Keaton for engaging
in activities of which she had no knowledge.
Without a predicate constitutional violation one cannot make out a prima facie case under
' 1983. That is the case here and Gardner is entitled to summary judgment in her favor on this
basis. Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992).
The parties shall have through April 11, 2014, in which to file any objection to this
ruling. Any objection to the Court’s factual conclusions should be supported by citations to
admissible evidence in the record (or, if not already in the record, attached to the objection).
IT IS SO ORDERED.

_______________________________
3/14/2014
Date: __________________

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
MARK KEATON
PO BOX 11208
Ft. Wayne, IN 46856
All Electronically Registered Counsel

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