BALLHEIMER v. BATTS et al
Filing
107
ORDER granting in part and denying in part 87 Motion for Summary Judgment; denying 93 Motion for Summary Judgment. Defendants Motion for Summary Judgment [Dkt. 87] is denied in part and granted in part. Defendants motion is granted in full with respect to the individual defendants, but denied with respect to the Monell claim. Plaintiffs Motion for Summary Judgment [Dkt. 93] is denied. (See Order). Signed by Judge Sarah Evans Barker on 3/20/2020. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFFREY C. BALLHEIMER,
Plaintiff,
v.
RYAN BATTS #525,
MATTHEW BURKS #562,
BLAYNE ROOT #524,
TOWN OF WHITESTOWN, INDIANA
acting through its Metropolitan Police Dept.
and its Chief of Police,
DENNIS R. ANDERSON Chief of Police, in
his official capacity,
Defendants.
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No. 1:17-cv-01393-SEB-DLP
ORDER
Plaintiff Jeffrey Ballheimer (“Ballheimer”) has sued Defendants the Town of
Whitestown, Indiana (“the Town”); Ryan Batts, Matthew Burks, and Blayne Root, three
officers of the Town’s police department (together, “the Officers”); and Dennis
Anderson, chief of the Town’s police department, for violations of the Fourth and
Fourteenth Amendments to the Constitution under 42 U.S.C. § 1983 as well as state-law
torts and state constitutional violations.
The matter is now before the Court on the parties’ cross-motions for summary
judgment. For the reasons detailed below, we deny Plaintiff’s Motion for Summary
Judgment and deny in part and grant in part Defendant’s Motion for Summary
Judgment.
Background
I.
Facts
The following facts are not genuinely disputed unless so noted. On the evening of
July 7, 2016, the Officers were dispatched to respond to a report of an unconscious
person in the parking lot of a local gas station and truck stop near the interstate which
passes by outside the Town. At the gas station, the Officers found Ballheimer asleep in
the driver’s seat of his car. The car was properly parked in a designated parking spot and
was not obstructing traffic. The engine was running but not in gear. Ballheimer had an
open laptop computer on his lap; an extinguished cigarette butt and cold cigarette ashes
were visible; the driver’s side window was partly open.
After a few unsuccessful attempts to rouse Ballheimer, Officer King eventually
awakened him, who responded at first with angry, vulgar language before composing
himself. Medics called by the Officers arrived soon thereafter at the scene. Ballheimer’s
eyes were observed to be bloodshot and glassy, his speech was slurred, and he appeared
“confused and lethargic,” Compl. ¶ 8, though just how confused and lethargic is disputed.
Ballheimer said that he had been on his way home and pulled over at the gas station
because he felt very tired.
Root checked Ballheimer’s pulse and asked him whether he had any medical
problems, which Ballheimer denied having. The medics nonetheless examined
Ballheimer in their ambulances. Because Ballheimer did not wish to be examined or
treated by the medics, he signed a medical release form as soon as the medics permitted
him to do so. Ballheimer then exited the ambulance. The Officers observed Ballheimer
staggering as he walked both from his car to the ambulance and back again, so unsteady
was he on his feet. These observations prompted them to immediately pull him aside and
to conduct field sobriety testing.
Officer Burks reportedly had never previously performed an impaired driver
investigation or a field sobriety test. Officer Burks nonetheless was able to determine that
Ballheimer had failed the horizontal gaze nystagmus test, the walk-and-turn test, and the
one-legged-stand test. Ballheimer was also breathalyzed but that test detected no alcohol
on his breath. The Officers have testified that they smelled neither alcohol nor marijuana
on or around Ballheimer. Though Officer Batts was certified to perform “drug
recognition expert” tests, he did not perform such a test on Ballheimer.
The Officers advised Ballheimer of Indiana’s implied-consent law. Though the
precise words included in that advisement are not in the record, the following example
based on the same statute was proffered as typical:
I have probable cause to believe that you have operated a vehicle while
intoxicated. I must now offer you the opportunity to submit to a chemical test and
inform you that your refusal to submit to a chemical test will result in a suspension
of your driving privileges for one year. Will you now take a chemical test?
Abney v. State, 811 N.E.2d 415, 423 (Ind. Ct. App. 2004). See Ind. Code §§ 9-30-6-1
through 2. Eventually Officers Batts and Burks transported Ballheimer in their police car
to a nearby hospital for assistance in performing the chemical testing.
At the hospital, Ballheimer refused to consent to blood and urine screens until he
was reminded that refusal would result in his driver’s license being suspended.
Ballheimer then signed a consent form and a hospital technician drew his blood. A urine
sample was requested, and it is undisputed that he refused to provide a sample. Whether
that failure to consent was the result of Ballheimer’s refusal to submit, as the Officers
say, or of his inability to produce a specimen, as he says. Ballheimer initially consented
to be catheterized but revoked that consent when the procedure was explained to him.
There followed a substantial period of time during which Ballheimer “attempted”
to provide a urine sample. As noted, the parties dispute whether those attempts were each
a sham or the result of a genuine physical inability to produce a sample. Ballheimer
eventually collapsed in the hospital bathroom and became unresponsive to Batts’s
demands for a “yes or no” answer to the question of whether he would consent to be
catheterized. Batts and Burks lifted Ballheimer into a chair. When he failed to stand up
from his seated position in the chair—whether because he was unable to do so or refused
to do so—he was informed that he was under arrest, was handcuffed, and placed in a
wheelchair. Batts wheeled Ballheimer back outside to the police car in which they had
arrived. In Defendants’ words, “Upon arriving at [Burks’s] police car, [Ballheimer] did
not get into the car as instructed, so [Batts] struck [Ballheimer] in his right thigh with his
right knee and [Ballheimer] fell into the seat . . . .” Defs.’ Br. Supp. 8.
According to Ballheimer,
I remember the officer coming around and sitting in the car and looking at me and
saying, now we’re going to charge you with resisting arrest, so you can’t bond out
until Monday. And then he shot me the most, like, messed up smile I’ve ever seen
in my life. And, like, at that point, I was legitimately, like, terrified. So I—that’s
when I tried to get out of the situation by telling them—it somehow got translated
into my needing medical help.
Ballheimer Dep. (Dkt. 30 Ex. 4) 110:15–24.
In the meantime, Officer Burks had begun drafting a search warrant application to
secure a court order compelling production of Ballheimer’s urine. Among other things,
Officer Burks’s affidavit in support of the application stated that Ballheimer “had refused
[to take a chemical test] by not responding.” Dkt. 33 Ex. 2, at 2. Ballheimer contends that
this was a lie, since Officer Burks himself had observed Ballheimer consent to a blood
draw and repeatedly attempt to provide a urine sample. The affidavit further stated that
Burks was requesting “a search warrant to be issued to obtain and remove blood or other
body fluid sample(s)” from Ballheimer, omitting the fact that the Officers had already
obtained a blood sample from him. Id. Ballheimer maintains that this omission was
intentional and misleading. Officer Batts read and approved Officer Burks’s false and
misleading affidavit before it was filed. The warrant was issued by the court within an
hour following its submission and authorized the officers “to obtain and remove blood or
other body fluid sample(s)” from Ballheimer and “to use reasonable force to obtain such
sample(s).” Dkt. 33 Ex. 1, at 1.
Batts drove Ballheimer back to the hospital where Ballheimer was administered
fluids intravenously for dehydration, and perhaps received a medication as well, causing
him to feel “substantially better.” Ballheimer Dep. (Dkt. 30 Ex. 5) 123:12. Ballheimer
was then allowed one “last chance” to urinate voluntarily, though he did not. Id. at 127:4.
After I couldn’t pee, they gave me a few minutes, and then they pretty much said,
okay, well, you need to get cathetered now because you have to. And so instead of
just arguing with them, I just complied, and I got up on the table, so they wouldn’t
force me because they’ve proven that they were going to do whatever they want.
They’re going to get it however they want to. And that’s when the nurse told me to
pull down my pants, and then she grabbed my penis and started pushing it in, and
it was the worst pain I have ever felt in my life. And she keeps yelling at me, you
can’t move. It’s kind of hard not to move when I’m feeling like I’m going to vomit
the whole time.
Id. at 128:4–17.
Following the successful extraction of the urine, Ballheimer was transported to the
county jail, where he wound up remaining for two weeks. The chemical tests revealed the
presence of amphetamines, methamphetamine, benzodiazepines, and MDMA in
Ballheimer’s system. Ballheimer later admitted to having taken methamphetamine and
Xanax on July 6, 2016, the day before his arrest, but he denied taking any drugs on July
7, 2016. Following his two weeks of detention, Ballheimer was released on bond to a
rehabilitation facility, where he remained for the ensuing five months.
Ballheimer’s driver’s license was suspended for one year by the Indiana Bureau of
Motor Vehicles, but that suspension appears to have been vacated sometime thereafter.
On September 27, 2017, on a petition for judicial review, the state court judge ( the same
judge who had issued the warrant on July 7, 2016) ruled that “probable cause did not
exist to believe [Ballheimer] had operated his vehicle in an impaired condition [on July 7,
2016,] and there was no authority to offer [Ballheimer] implied consent.” Dkt. 33 Ex. 4,
at 5. The State of Indiana public records reveal that the pending criminal charges for
operating a vehicle while intoxicated, operating a vehicle with a controlled substance or
its metabolite in the body, public intoxication, and resisting law enforcement were
dismissed shortly after the judge entered his ruling. See also Dkt. 33 Ex. 6, at 1 (order of
dismissal). No conviction resulted from this arrest and no other criminal charges were
preferred in connection with the July 7, 2016, incident.
II.
Procedural Background
Ballheimer filed this lawsuit against the officers and the Town on May 2, 2017.
On May 2, 2018, the parties filed cross-motions for summary judgment. Defendants
sought judgment on Ballheimer’s claims in their entirety; Ballheimer’s motion sought
judgment only with regard to liability on Defendants’ claims. We previously granted in
part and denied in part Defendants’ motion, and denied Ballheimer’s, issuing the
following findings:
• Both motions were denied without prejudice to refiling for failure to present a
decidable issue as to the following: the lawfulness of Defendants’ seizure or
seizures and the Town’s alleged Monell liability. We invited renewed motions on
these issues “provided they are supported with cogent, coherent briefs addressing
the points raised” in our ruling.
• Both motions were denied with prejudice to refiling because of the presence of a
genuine dispute of material fact as to the issue of whether Defendants deliberately
or recklessly provided the court issuing the warrant with false, material
information. 1
1
Although we denied with prejudice both parties’ motions on this issue, the Officers nonetheless
ask us to review this decision in light of recent Seventh Circuit precedent clarifying that “the
materiality of omitted facts, unlike the materiality of false statements, is properly part of the
qualified-immunity analysis.” Rainsberger v. Benner, 913 F.3d 640, 654 (7th Cir. 2019). But
Ballheimer contends that the Officers in applying for the warrant, did not simply omit the fact
that Ballheimer had previously submitted a blood sample, they falsely informed the court that
Ballheimer had refused to submit to chemical tests. This disputed issue, therefore, is not merely
an omission, it is also a misrepresentation.
• Defendants’ motion was granted with respect to Plaintiff’s Fourth Amendment
false arrest claim, Fourteenth Amendment claim, and all state-late claims.
The parties accepted our invitation to refile their motions. On July 17, 2019,
Defendants filed their supplemental motion for summary judgment; Plaintiff filed his
cross-motion on September 5, 2019. Defendants seek summary judgment on all
remaining claims against them; Plaintiff seeks summary judgment only on liability.
To recap: Plaintiff has three remaining Fourth Amendment claims: (1) his
allegedly unlawful detention in the gas station parking lot; (2) the false justification for
the search of his bodily fluids, and (3) the excessive manner in which that search was
conducted, viz. by forced catherization. Also pending is Plaintiff’s Monell claim against
the Town. For the first time, Plaintiff also challenges the probable cause for his being
placed in custody after he failed the field sobriety tests.
Analysis
I.
Standard of Review
Summary judgment is appropriate where there are no genuine disputes of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must grant a motion for
summary judgment if it appears that no reasonable trier of fact could find in favor of the
nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). We neither weigh the evidence nor evaluate
the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences
flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,
573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).
Courts often confront cross motions for summary judgment because Rules 56(a)
and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to
move for such relief. In such situations, courts must consider each party’s motion
individually to determine if that party has satisfied the summary judgment standard. Kohl
v. Ass’n. of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998). Here, the Court has
considered the parties’ respective memoranda and the exhibits attached thereto and has
construed all facts and drawn all reasonable inferences therefrom in the light most
favorable to the respective nonmovant. Matsushita, 475 U.S. at 574.
We note at the outset that, regrettably, the parties’ renewed motions suffer from
some of the same deficiencies as their earlier attempts to secure summary judgment. We
previously critiqued the parties for “treat[ing] their briefs in opposition to summary
judgment in favor of the other party largely identically to their briefs in support of
summary judgment in their own favor,” rather than satisfying the relevant summary
judgment burdens imposed on them as movants. [Dkt. 78, at 8]. At various points in their
renewed motions, both sides continue to ignore their respective burdens. As we
previously admonished the parties, the court is entitled to require “strict compliance”
with Rule 56’s summary judgment requirements. That said, we have been able to tolerate
these procedural shortcomings on our way to fashioning the decisions that follow.
II.
Discussion
A. Section 1983
Title 42 U.S.C. § 1983 imposes liability on “[e]very person” who “subjects, or
causes to be subjected” another to the deprivation of federal rights under color of state
law.
Defendant Chief of Police Anderson is sued here in his official capacity, which
“represents ‘only another way of pleading an action against an entity of which an officer
is an agent’”—in this case, the Town. McConnell v. McKillip, 573 F. Supp. 2d 1090,
1097 (S.D. Ind. 2008) (McKinney, J.) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690 n.55 (1978)). Accordingly, we treat Ballheimer’s claims against Anderson as
being against the Town.
We begin our analysis with Ballheimer’s claims against the Officers before we
proceed to address his claims against Anderson and the Town.
B. Fourth Amendment Claims Against the Officers
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . and effects, against unreasonable searches and seizures[.]” U.S. Const.
amend. IV. The touchstone of the Fourth Amendment is reasonableness under all the
circumstances, Brigham City v. Stuart, 547 U.S. 398, 403 (2006), limned by balancing
the public and private interests at stake in a given state intrusion into personal privacy.
United States v. Hensley, 469 U.S. 221, 228 (1985).
In analyzing Fourth Amendment seizures, police-citizen interactions are divided
into three types. United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir. 1990) (citing
United States v. Black, 675 F.2d 129, 133 (7th Cir. 1982)). Applying this framework,
progressively deeper intrusions into a citizen’s privacy interests require progressively
weightier justifications. See id. Consensual encounters over which police exercise no
control and which are therefore not Fourth Amendment seizures at all require no
particularized suspicion to justify them. Id. Investigatory stops, or Terry stops, which are
limited to brief, nonintrusive detentions, require reasonable suspicion of criminality
supported by specific, articulable facts. Id. Full arrests subjecting an arrestee to a litany of
intrusions, see Utah v. Streiff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting),
require probable cause to believe the person is committing or has committed a crime.
Johnson, 910 F.2d at 1508.
It is critical, therefore, to undertake a careful and accurate preliminary
characterization of each police-citizen encounter in order to define the quantum of
suspicion necessary to justify the police conduct engaged in at any given moment. United
States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). Nonseizures may, of course, ripen into
seizures, see Abbott v. Sangamon County, 705 F.3d 706, 719–20 (7th Cir. 2013), and
Terry stops may ripen into arrests, see Matz v. Klotka, 769 F.3d 517, 524–25 (7th Cir.
2014), so long as the seizure is supported by a sufficient quantum of suspicion. To test
the sufficiency of suspicion, we must view “the facts and circumstances within [a police
officer’s] knowledge” “at the moment the decision [to seize] was made,” disregarding
later acquired information, Qian v. Kautz, 168 F.3d 949, 953–54 (7th Cir. 1999). It is
similarly important to determine the timeline of events during which a particular
encounter occurs and to which the appropriate characterization attaches.
Determinations of probable cause and reasonable suspicion normally are mixed
questions of fact and law, but when the facts are undisputed, the ultimate resolution of
whether probable cause or reasonable suspicion existed becomes a question of law.
United States v. Carlisle, 614 F.3d 750, 754, 2010 WL 3155876 (7th Cir. 2010).
1. Defendants’ Detention of Ballheimer in the Gas Station Parking Lot
Ballheimer does not argue that any Fourth Amendment violations were committed
by the Officers during the time period in which they were conducting the “welfare
check,” up to and including Ballheimer’s exit from the ambulance. His first Fourth
Amendment claim is that the Officer’s lacked the necessary suspicion to detain him and
conduct the field sobriety tests once the medics permitted him to leave the gas station
parking lot.
The parties agree that this detention constituted a Terry stop for purposes of our
determining the “quantum of suspicion” necessary for the police action. For the Officers’
actions to have been lawful under the Fourth Amendment, they must have had reasonable
suspicion supported by specific and articulable facts that Ballheimer was engaging in
some unlawful activity. Matz, 769 F.3d at 522. “[A]lthough reasonable suspicion is a less
demanding standard than probable cause, such a stop requires at least a minimal level of
objective justification and the officer must be able to articulate more than an inchoate and
unparticularized suspicion or hunch of criminal activity.” Id. (internal quotations
omitted). Ultimately, the reasonable suspicion determination is based on “commonsense
judgments and inferences about human behavior.” United States v. Maclin, 313 Fed.
Appx. 886, 889, 2009 WL 605944, at *2 (7th Cir. 2009). When making a reasonable
suspicion determination, we must examine the totality of the circumstances. United States
v. Arvizu, 534 U.S. 266, 273 (2002).
For Ballheimer to prevail on this claim, he must establish that the Officers had “no
objective justification for the stop,” merely “unparticularized suspicion.” See Matz v.
Klotka, 769 F.3d at 522. For the Officers to prevail, they must have had “specific and
articulable facts” supporting their reasonable belief that Ballheimer operated his vehicle
while intoxicated. There is an abundance of relevant case law to guide the court in
making this determination, but surprisingly, neither party cites to any controlling
authority or analogous caselaw beyond a few citations articulating boilerplate principles.
Defendants, in fact, cite to no legal authorities; Ballheimer cites cases that are plainly
distinguishable. 2
Nevertheless, having conducted our own careful review of applicable case law in
light of the parties’ contentions, we conclude that, based on the totality of the
circumstances, the evidence establishes that the Officers reasonably suspected that
2
See Mordacq v. State, 585 N.E.2d 22 (Ind. Ct. App. 1992) (holding that there was insufficient
evidence to prove beyond a reasonable doubt that defendant was operating her vehicle while
intoxicated merely because she was found passed in the parked, running vehicle). Contrary to
Ballheimer’s argument, the Mordacq court did not hold that “merely sitting asleep in a properly
parked vehicle with the engine running is not evidence of impaired operation.” Instead, it held
that this evidence alone was not sufficient to “prove a violation” of impaired operation.
Ballheimer’s invocation of Clark v. State, 611 N.E.2d 181 (Ind. Ct. App. 1993) is similarly
problematic. An appellate court holding that there were insufficient facts to sustain a conviction
does not transmute into an articulation of the reasonable suspicion standard. Ballheimer also
misapplies Indiana Code § 9-30-6-2, which requires chemical tests to be administered within
three hours of a suspect’s allegedly impaired operation of the vehicle. Ballheimer does not
explain how this statute is relevant to our determination of whether reasonable suspicion existed
at the time of the Terry stop.
Ballheimer had operated his vehicle while under the influence of an illegal substance. 3
Accordingly, they did not commit a Fourth Amendment violation by detaining
Ballheimer for the purposes of conducting an investigatory stop.
The undisputed facts adduced here establish that Ballheimer was found
unconscious sitting in the driver’s side of his vehicle while the engine was running; that
Ballheimer told the Officers after they managed to rouse him that he was “on his way
home” and had stopped at the truck stop because he “was really tired.” The Officers
noted that Ballheimer’s eyes were glassy and bloodshot; that his speech was slurred; that
he responded to their inquiries in the negative when asked if he had any underlying
medical conditions; and that Ballheimer stumbled when attempting to walk. These
specific, articulable facts were noted by the Officers at the time they detained Ballheimer.
Considered as a whole, they sufficiently establish an objective justification for their belief
that Ballheimer may have been operating his vehicle while under the influence of a
controlled substance. 4
3
Ind. Code. § 9-30-5-2 provides that operation of a vehicle while intoxicated is a criminal
offense. “Intoxication” may be caused by either alcohol or a controlled substance. Ind. Code. §
9-13-2-86. Indiana Code Section 9-13-2-118 defines an operator of a vehicle as “a person, other
than a chauffeur or a public passenger chauffeur, who: (1) drives or is in actual physical control
of a motor vehicle upon a highway; or (2) is exercising control over or steering a motor vehicle
being towed by a motor vehicle.”
4
See Minett v. Overwachter, 2020 WL 224342 (W.D. Wis. Jan. 15, 2020) (officers articulated
specific facts from which a reasonable officer could infer that an individual had operated a
vehicle while intoxicated where the individual was found sitting near a parked vehicle that only
he appeared to be associated with and smelled of alcohol, had slurred speech and trouble
keeping his balance); United States v. Lee, 2018 WL 10075927, at *3 (W.D. Wis. Jan. 17, 2018)
(officers had reasonable suspicion that individual was under the influence of an intoxicant or
controlled substance when he was found asleep and not easily awakened in a parked, running car
with a child in the backseat). See also Smith v. Ball State Univ., 2001 WL 1339006, at *4 (S.D.
Ind. Oct. 29, 2001), aff'd, 295 F.3d 763, 2002 WL 1456715 (7th Cir. 2002) (officers need not
Accordingly, we hold that the Officers had reasonable suspicion to detain
Ballheimer at the car to conduct a brief investigatory stop and the field sobriety tests.5
2. Ballheimer’s Arrest
Ballheimer’s failed the field sobriety tests, prompting Officers Batts and Burks to
transport him in their police car to a nearby hospital to permit chemical testing to be
performed. He was subsequently formally arrested. As we ruled in our prior summary
judgment order, the Officers are entitled to qualified immunity for Ballheimer’s
allegations that they lacked probable cause to arrest him. 6 Ballheimer now claims,
however, that prior to his formal arrest, the officers placed him in police custody without
possessing the requisite quantum of suspicion. The parties appear to agree that by placing
Ballheimer in police custody and transporting him to the hospital, the investigatory stop
was no longer brief or nonintrusive, and had ripened into an arrest requiring probable
cause. See Matz, 769 at 524–25. Abbott v. Sangamon County, 705 F.3d 706, 719–20 (7th Cir.
2013). “Probable cause exists if at the time of the arrest, the facts and circumstances
within the officer’s knowledge are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown, that the suspect has
detect the odor of alcohol or locate paraphernalia to have reasonable suspicion that individual
may have been drunk or on drugs)
5
Ballheimer does not challenge the promptness or intrusiveness of this investigatory stop, nor
does he challenge the administration of the breathalyzer test.
6
Our previous summary judgment ruling addressed qualified immunity for the Officers for their
seizure of Ballheimer following his failed sobriety tests. Because the Officers have not asserted
this defense, however, and because the parties’ first round of briefing did not specifically address
whether the Officers unlawfully seized Ballheimer when they transported him to the hospital, we
will now address the parties’ theories on this question.
committed, is committing, or is about to commit an offense.” Ramos v. City of Chicago,
716 F.3d 1013, 1018 (7th Cir. 2013) (internal quotations omitted).
The Officers maintain that Ballheimer’s failed sobriety tests provided them with
probable cause to arrest him, and that, if probable cause did not exist, they are entitled to
qualified immunity. We need not determine whether the Officers had probable cause to
arrest Ballheimer in order to conclude that here they are shield by qualified immunity. In
this context, qualified immunity protects officers who have “arguable probable cause” to
arrest. In other words, it shields those officers who reasonably but mistakenly believe
probable cause existed. Gutierrez v. Kermon, 722 F.3d 1003, 1008, 2013 WL 3481359
(7th Cir. 2013) (“An arrest without probable cause is a violation of a constitutional right,
whereas an arrest without arguable probable cause is a violation of a clearly established
constitutional right.”).
Ballheimer’s failed sobriety tests heightened the Officers’ reasonable suspicions,
thereby creating arguable probable cause, they say. Arguable probable cause exists when
“a reasonable police officer in the same circumstances as the officer in question could
have reasonably believed that probable cause existed in light of well-established law.”
Humphrey v. Staszak, 148 F. 3d 718, 725 (7th Cir. 1998). According to the Officers, at
the time they seized Ballheimer, there was no law clearly establishing that officers, armed
with reasonable suspicion that a suspect has operated a vehicle while under the influence
of an illegal substance, do not have probable cause to arrest that suspect if he fails the
field sobriety tests. Accordingly, the Officers argue, they are entitled to the protections of
qualified immunity.
Once this defense has been raised by the Officers, it becomes Ballheimer’s burden
to overcome it. Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012). In our prior
discussion of Ballheimer’s claim that the Officers did not have probable cause to arrest
him at the hospital, we concluded that the Officers were entitled to qualified immunity,
but that determination was based on Ballheimer’s failure to carry this burden. We ruled
that Ballheimer had simply had “nothing at all to say on qualified immunity for the
Fourth Amendment false arrest claim.” Based on our current review of Ballheimer’s
renewed briefs, though he attempts a response to this defense, we conclude that he has
nothing of value to say with regard to qualified immunity on his Fourth Amendment false
arrest claim. He has provided nothing beyond the mere recitation of boilerplate principles
regarding qualified immunity standards, without any explanation as to how those
principles apply to his case. From there, he states that he “incorporates herein his
foregoing arguments on the lack of reasonable suspicion and probable cause,” repeating
that it is “clearly established” that police officers are barred from conducting field
sobriety tests or from taking individuals into custody “when they have no knowledge of
whether [they] had operated a vehicle within the past three hours.” Such shallow
advocacy does not carry the day or satisfy Plaintiff’s legal burden.
In an effort to salvage his claim, Ballheimer again misapplies the holding of
Mordacq v. State, 585 N.E.2D 22 (Ind. Ct. App. 1992). 7 There, the court held that the
state had not proven beyond a reasonable doubt that a criminal defendant had operated a
7
Ballheimer’s invocation of Nichols v. State, 783 N.E.2d 1210, 1212 (Ind. Ct. App. 2003) and
Clark v. State, 611 N.E.2d 181 (Ind. Ct. App. 1993) fails for the same reason.
vehicle while intoxicated when it offered little to no evidence that she had driven her
vehicle within three hours of the chemical testing that revealed a high level of alcohol in
her system. Whether the arresting officers had probable cause to arrest the defendant
(who was discovered passed out and reeking of alcohol in the driver’s side of her running
vehicle) was not disputed in Mordacq. This holding, which focused on the burden of
proof in a criminal proceeding, does not impose on police officers an obligation to
determine when a suspect last operated a vehicle as a condition precedent of probable
cause to arrest the person. Ballheimer’s continued reliance on this case does not serve to
strengthen his arguments. Probable cause plainly does not require “an actual showing” of
criminal activity. United States v. Navarro, 90 F.3d 1245, 1253 (7th Cir. 1996). By
ignoring this legal principle, Ballheimer has again failed to rebut the Officer’s qualified
immunity defense.
Thus, we conclude that Ballheimer, having failed to sustain his burden in
overcoming the Officer’s assertion of qualified immunity, entitles the Officers to the
protections of qualified immunity from Ballheimer’s Fourth Amendment false arrest
claim against them.
3. Plaintiff’s Unlawful Search Claim
Under the Fourth Amendment, warrantless searches are per se unreasonable,
subject to a few well delineated exceptions. Katz v. United States, 389 U.S. 347, 357
(1967). The warrant requirement applies with full force “‘where [surgical] intrusions into
the human body are concerned[,]’” Winston v. Lee, 470 U.S. 753, 761 (1985) (quoting
Schmerber v. California, 384 U.S. 757, 770 (1966)), including, more specifically, in
blood draws, where there is “a compelled physical intrusion beneath [a person’s] skin and
into his veins to obtain a sample of his blood for use as evidence in a criminal
investigation.” Missouri v. McNeely, 569 U.S. 141, 148 (2013). In terms of legal
distinctions, there is no justifiable distinction between a compelled physical intrusion
beneath a person’s skin and the insertion of a catheter into the urethra to obtain a sample
of his urine as evidence for a criminal investigation.
In our prior summary judgment ruling, we included several findings and
conclusions with respect to the Officer’s search:
• The “exigent circumstances” exception to warrant requirement was inapplicable,
and therefore the officers required a warrant for the catherization.
• If the warrant was valid, the Officers did not act outside the scope of authorization
by taking Ballheimer’s urine in addition to his blood. We also noted that, had the
Officers raised a qualified immunity defense (they had not), nothing in the warrant
would have so unambiguously excluded the possibility of taking both blood and
urine samples as to disentitle the Officers from relying on that construction of their
own authorization.
• Based on the parties’ submission, we could not determine with sufficient
reliability whether the search warrant was supported by probable cause. Nor could
we determine whether the Officers unreasonably executed the warrant, viz. the
forced catherization.
We invited renewed motions on the issues of whether the warrant was based on
probable cause and whether the Officers unreasonably executed the warrant. Neither
party has elected to revisit the issue of probable cause, and thus our remaining inquiry
focuses on the reasonableness of the forced catherization. Because Ballheimer “assumes”
that probable cause existed for the warrant, so shall we. 8 We therefore turn to a
discussion of whether the Officers were unreasonable when they executed the warrant.
The Officers assert that their actions to require that Ballheimer submit to the
catheterization performed by the hospital nurse was reasonable. Alternatively, they argue
they are shielded by the doctrine of qualified immunity. The constitutionality of invasive
medical procedures conducted under court order for the purposes of criminal
investigation is determined under the “Schmerber balancing test.” Winston, 470 U.S. at
763. See, e.g., United States v. Husband, 226 F.3d 626, 631 (7th Cir. 2000); Elliott, 686
F. Supp. 2d at 859. In our prior summary judgment ruling, we admonished the parties for
failing to cite to or apply Schmerber or Winston in framing their arguments regarding the
constitutionality of a forced catheterization. Now, only Ballheimer has managed to
proffer an analysis that includes a discussion of all three Schmerber factors. The Officers
acknowledge the existence of these factors, but include only the third factor in their
8
Ballheimer states that the Court mandated that the parties presume, in the event they submitted
renewed summary judgment motions, that the warrant was not falsely procured and was based on
probable cause. Ballheimer has misinterpreted our directive from the earlier ruling, wherein we
stated that the parties could submit additional briefing on the question of whether probable cause
existed to obtain the warrant, although we barred further submissions with respect to whether the
warrant was falsely procured. These are two distinct inquiries that Ballheimer has improperly
continued to conflate. Moreover, we advised Ballheimer that “any future efforts [] to hold the
Officers liable for conduct under a warrant issued without probable cause would have to
overcome the hurdle of showing that the warrant was so lacking in indicia of probable cause to
render official belief in its existence unreasonable.” Ballheimer has now had two opportunities to
apply the appropriate standard on this issue and has failed both times to do so. Accordingly, we
deem this argument waived for the purposes of this entry.
analysis. Of greater concern, however, is the fact that they never responded to
Ballheimer’s arguments regarding these factors.
The Schmerber balancing test analyzes the reasonableness of a medical procedure
pursuant to the following factors: (1) “the extent to which the procedure may threaten the
safety or health of the individual”; (2) “the extent of intrusion upon the individual’s
dignitary interests in personal privacy and bodily integrity”; and (3) “the community's
interest in fairly and accurately determining guilt or innocence.” Husband, 226 F.3d at
631 (quoting Winston, 470 U.S. at 763.). We address each of these factors in turn below.
The first Schmerber factor, the extent to which the procedure may threaten the
safety or health of the individual, prompted Ballheimer to proffer the report of his expert
witness, Dr. Steven Smith, in arguing that an in-and-out catheterization should only be
performed “when the appropriate medical indications for doing so exist.” Additionally,
before a catheterization is performed, medical history should be obtained from the
individual, and the risk of potential complications of that procedure should be discussed
with the individual. Following the completion of the catheterization, a health care
provider should evaluate the individual for any immediate complications and should
advise the individual about signs and symptoms of potentially delayed complications.
None of these protections were undertaken in Ballheimer’s case. He was not
examined by a doctor nor was his medical history taken. The risks of the procedure were
never communicated to him and no discussion followed the procedure advising him of
delayed complications. However, Dr. Smith opines that the insertion of a catheter is not
an unusual or particularly dangerous procedure. Notwithstanding this fact, because
Ballheimer had already produced a blood sample, he argues that the forced
catheterization unnecessarily threatened his health. The Officers offer no rebuttal; thus
we find that this factor weighs in Ballheimer’s favor.
Next we consider the extent to which the procedure represented an intrusion upon
Ballheimer’s dignitary interests. Ballheimer states that the loss of personal dignity
associated with “putting a catheter into a man’s penis and then into his bladder,” cannot
be justified “in the name of efficacy and locality” “when a blood draw is more accurate
and reliable.” The Officers again do not respond to these averments, presumably
conceding that one’s dignitary interests are clearly intruded upon when his pants are
pulled down, exposing his genitalia, and he is then subject to the painful insertion of a
catheter into his penis. We thus conclude that the use of the catheter constituted a
significant invasion of Ballheimer’s personal privacy and bodily integrity. Elliott v.
Sheriff of Rush Cty., Ind., 686 F. Supp. 2d 840, 859, 2010 WL 679065 (S.D. Ind. 2010).
Finally, we weigh “against these individual interests … the community’s interest
in fairly and accurately determining guilt or innocence.” Winston, 470 U.S. at 762. The
Officers’ arguments center on the importance of their being able to obtain urine samples
as part of their investigation and prosecution of individuals who are driving while
impaired. According to the Officers, while blood testing is an effective toxicology tool to
confirm the presence of alcohol, urine testing more efficaciously confirms the presence of
other substances in a person’s body. The ability to test urine thus serves the public’s
interest in ensuring that drivers impaired by substances other than alcohol are
appropriately penalized and deterred from future offenses. Additionally, because Indiana
law provides only a three-hour window from the point in time when the individual
operated a vehicle and the administration of chemical testing of the suspect’s fluid,
officers seeking to have this test performed are faced with a time exigency. As the
Officers explain, “If catheterization is off the table, all a suspect will have to do in
situations like the present case [is] wait three hours and they would be in the clear.”
Ballheimer responds, again relying on his expert, that analysis of blood is “more reliable,
accurate, and scientifically valid method of determining both impairment and intoxication
due to . . . the use of a controlled substance or the excessive consumption of [alcohol.]”
The Officers do not challenge the opinions of Ballheimer’s expert, nor do they cite
any reason for requiring the urine sample in addition to Ballheimer’s already furnished
blood sample. They argue “efficiency,” but do not specifically argue that they were in
need of expeditious toxicology results. More critical to our analysis is the fact that they
have failed to explain the reason they required earlier confirmation of the substances
Ballheimer may have ingested than they would have obtained from the blood sample. The
Indiana’s three-hour rule merely requires that a chemical screening be administered
within three hours; it does not mandate that toxicology results be retrieved within three
hours. Here, because Ballheimer’s blood had already been drawn by the time the
catherization was administered, we cannot conclude that the public interest factor,
properly weighed, redounds in favor of the Officers, particularly when they have offered
no arguments to rebut Ballheimer’s claim that his guilt or innocence could have been as
readily determined by virtue of his blood sample.
Our analysis of the Schmerber factors has included a review of the few decisions
of those courts who have also addressed the reasonableness of forced catheterizations,
although we note that our research has disclosed no decision involving the precise
question presented to us here. We summarize those holdings below.
Lockard v. City of Lawrenceburg is the most closely analogous case to
Ballheimer’s within our Circuit. 9 In Lockard, police officers received a warrant
“authorizing and ordering” them to obtain blood and urine samples from the plaintiff by
all “necessary and proper means.” The police officers directed the forced catheterization
of the plaintiff after plaintiff had provided his blood sample “but was either unwilling or
unable to provide a urine sample.” The officers felt that, because the warrant ordered the
retrieval of both specimens, that they were obligated to obtain the urine sample. Lockard
v. City of Lawrenceburg, Ind., 815 F. Supp. 2d 1034, 1037-38, 2011 WL 3902796 (S.D.
Ind. 2011).
The Lockard court distinguished the facts of that case from those of Elliot v. Rush,
686 F. Supp. 2d 840 (S.D. Ind. 2010). In Elliot, police officers obtained a warrant
authorizing them to obtain professional medical assistance to obtain “a blood or urine
sample” from the plaintiff and to use “reasonable force to do so.” The officers then
obtained blood and urine from the plaintiff, utilizing a forced catheterization for the latter
following the plaintiff’s failed attempts to urinate. The Elliot court focused on the scope
of the warrant in finding the officers had acted unconstitutionally when they seized both
9
Even looking beyond our Circuit, we were unable to locate a case comparable to ours.
urine and blood from the plaintiff. 10 The Lockard court concurred in the Elliot analysis,
relying on the fact that the warrant in its case authorized blood “and” urine, as opposed to
blood “or” urine in the Elliot case.
The Lockard court nevertheless refrained from deciding whether the Officers’
actions were constitutional, concluding instead that qualified immunity for the officers’
conduct applied and was dispositive of the case. Noting what it described as the
“diverging patchwork of well-reasoned cases,” the Court concluded that the officers had
not violated a “clearly established” right. It further held that the issue was not so obvious
that a reasonable officer would know that a forced catheterization would violate the
plaintiff’s constitutional rights.
Lacking clear precedent from other courts, the Schmerber factors alone must
guide our analysis. We hold that each of these factors favors Ballheimer. Ballheimer’s
already furnished blood sample at the time of the forced catherization would have
satisfied the public interest thus avoiding any compromise to his health or unnecessary
intrusions on his dignity. The Officers provide no justification for their need to procure
Ballheimer’s urine in addition to his already acquired blood sample, nor have they
mustered any arguments to address the potential harms to his physical or personal well-
10
In our prior summary judgment ruling, we distinguished our case from the Elliot case based on
the issue of “scope.” As we explained: “Elliott held that police officers exceeded the scope of a
warrant authorizing them to obtain ‘a sample of Plaintiff’s blood or urine . . . by requiring
Plaintiff to give a urine sample after Plaintiff had already provided a blood sample.’ There,
however, both blood and urine samples were taken pursuant to the warrant. Here, by contrast, the
blood sample had already been taken by consent at the time the warrant issued. Even if the
warrant’s ‘or’ was exclusive, the Officers complied with it by taking only Ballheimer’s urine
sample under its auspices.” [Dkt. 78, at 20-21] (internal citations omitted).
being. The Officers were constitutionally authorized to use “reasonable force” to seize
Ballheimer’s bodily fluids, but they stop short of justifying the forced catheterization as
reasonable under these circumstances.
We caution, however, that this determination is limited to the specific
circumstances of this case. Evidence of a need for an immediate urinalysis or the
deficiencies inherent in a blood sample might change the analysis and the conclusion we
have reached here. We do not speculate regarding other potential variations on the facts
before us. Our ruling applies only here on the evidence presented by the parties to this
litigation.
That said, we also conclude that the individual officers who have been sued here
for this constitutional violation are entitled to qualified immunity. 11 As previously noted,
qualified immunity shields public officials exercising their discretionary powers and sued
in their personal capacities—as the Officers here—from the burdens of litigation under
Section 1983 unless their conduct violated “a clearly established . . . constitutional right
of which a reasonable person would have known at the time.” Betker v. Gomez, 692 F.3d
854, 860 (7th Cir. 2012) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The qualified immunity analysis poses two questions: (1) whether a defendant
violated a constitutional right, and (2) whether the right was clearly established at the
11
This determination hinges on the assumption that the warrant authorizing the Officers to obtain
Ballheimer’s urine was properly obtained from the state court judge who issued it. If the warrant
was not properly procured, the Officers cannot find protection under qualified immunity for
violating Ballheimer’s clearly established right against a warrantless, intrusive medical search.
Winston v. Lee, 470 U.S. at 754.
time of the violation. Id. (citing McComas v. Brickley, 673 F.3d 722, 725 (7th Cir.
2012)). These questions may be addressed in either order. Id. (citing McComas, 673 F.3d
at 725). “If a defendant asserts that she is entitled to qualified immunity, the plaintiff
bears the burden of defeating the immunity claim.” Archer v. Chisholm, 191 F. Supp. 3d
932, 943 (E.D. Wis. 2016) (citing Betker, 692 F.3d at 860). The doctrine of qualified
immunity, as applied here, means that the Officers can only be held liable only if, at the
time of the catherization, Ballheimer had a clearly established right not be subjected to
forced catheterization despite a warrant so authorizing. 12
The phrase “clearly established” cannot be defined at a high level of generality.
City of Escondido, Cal. V. Emmons, 586 U.S. ___, 139 S.Ct. 500, 503. (2019). As the
Supreme Court has explained, “Specificity is especially important in the Fourth
Amendment context, where the Court has recognized that it is sometimes difficult for an
officer to determine how the relevant legal doctrine . . . will apply to the situation the
officer confronts.” Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152, 200 L. Ed. 2d
449 (2018)). Thus, the Supreme Court has instructed lower courts to “identify a case
where an officer acting under similar circumstances was held to have violated the Fourth
Amendment.” Escondido, Cal. V. Emmons, 139 S.Ct. at 503 (quoting D.C. v. Wesby, 138
S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018)).
Like the Lockard court, we recognize the “diverging patchwork” of precedent on
the subject of forced catheterizations. Lockard, 815 F. Supp. 2d at 1034. (collecting
12
As the Lockard court confirmed, a catheterization is the only means by which Officers can
obtain urine from an unwilling or incapable suspect. Lockard, 815 F. Supp. 2d at 1047.
cases). See Levine v. Roebuck, 550 F.3d 684 (8th Cir.2008) (Fourth Amendment rights of
prisoner were violated when he was catheterized as a part of random drug screening),
Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir.1995) (forced catheterization without warrant
violated prisoner’s Fourth Amendment rights); Elliott, 686 F. Supp. 2d at 863 (“This case
falls into the ‘obvious’ category. A reasonable law enforcement officer should have
known that ordering Plaintiff to submit to a medical catheterization, against his will and
without the issuance of a search warrant . . . was an unreasonable search.”) Indeed, there
is a dearth of case law evaluating whether police officers act unconstitutionally when
they direct a forced catherization pursuant to a warrant. Thus. we are unable to locate a
“closely analogous case” that would have placed these Officers on notice of their
unconstitutional conduct.
While Ballheimer repeatedly asserts that Elliot establishes that a forced
catheterization violates a clearly established constitutional right, this reading
misconstrues that decision, as we explained in our previous summary judgment ruling.
The holding in Elliot was premised on the fact that the Officers acted beyond the scope of
a valid warrant. Here, our analysis includes the fact that the Officers acted within the
parameters of presumptively valid warrant. As we have held, in forcing the
catheterization of Ballheimer, the Officers acted unreasonably and therefore
unconstitutionally, but qualified immunity saves them from liability because it “gives
ample room” for their mistaken judgments. Hunter v. Bryant, 502 U.S. 224, 229, (1991).
We add this note as well to our discussion: the absence of a closely analogous
case is not necessarily fatal to Ballheimer’s claim if he were able to show that the
violation of his rights was so obvious that a reasonable state actor would have understood
that his actions violated the Constitution. Siebert v. Severino, 256 F.3d 648, 654–55 (7th
Cir. 2001); Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir. 2000). (Analogous
case law is not always required because “in the most extreme cases, an analogous case
might never arise because the existence of the right was so clear . . . that no one thought it
worthwhile to litigate the issue.”). Ballheimer argues that “the lack of case law directly
on point supports the proposition that state actors are not conducting forced
catheterizations because it is obvious that such actions are unreasonable.”
Ballheimer’s argument has its appeal, but we do not agree that the
unconstitutionality of the Officers’ conduct was so obvious as to place the lawfulness of
their actions “beyond debate,” placing them beyond the protections of qualified
immunity. Escondido, 139 S.Ct. at 503. Despite the shortage of case law directly on point
with respect to the constitutionality of the Officer’s actions, there is no shortage of case
law granting police officers qualified immunity for utilizing forced catheterizations to
secure evidence of this kind. See Levine v. Roebuck, 550 F.3d at 684 (officers who
committed Fourth Amendment violation by unlawfully catheterizing prisoner were
entitled to qualified immunity); Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir.1995);
(same); Ellis v. Cotten, 2008 WL 4182359 (N.D.Tex. Sept. 9, 2008) (“Even if Defendant
violated Plaintiff’s Fourth Amendment rights, he would still be immune from suit”
because taking blood and urine samples are “proper method[s] of seizing evidence for a
person suspected of committing an intoxication offense.”) This issue takes law
enforcement officers no less than courts into “nebulous territory.” Thus, the officers
cannot fairly be held liable for their “bad guesses in gray areas.” Lockard, 815 F. Supp.
2d at 1051.
C. Municipal Liability
Although as we have determined the Officers are shielded from liability for their
unconstitutional conduct, the Town may still be subject to Monell liability. Eilenfeldt v.
United C.U.S.D. #304 Bd. of Educ., 169 F. Supp. 3d 867, 876 (C.D. Ill. 2016). Plaintiff so
claims. The Town resists.
We begin by noting the barebones-ness of Ballheimer’s argument on the question
of Monell liability. His primary assertion with respect to his Monell claim is that
summary judgment should not be granted for the Town. This plainly falls short of
establishing a basis for holding as a matter of law that he should prevail on this claim.
We therefor turn our attention only to the issue of whether the Town is entitled to
summary judgment on the claims against it based on Monell.
It is well-settled that § 1983 does not allow “for a local government to be sued . . .
for an injury inflicted solely by its employees or agents.” Monell v. Dep't of Social Servs.
of City of New York, 436 U.S. 658, 690 (1978); Gernetzke v. Kenosha Unified Sch. Dist.
No. 1, 274 F.3d 464, 468 (7th Cir. 2001). To successfully maintain a § 1983 action
against a local government, a plaintiff must demonstrate the existence of an
unconstitutional policy. “Locating a ‘policy’ ensures that a municipality is held liable
only for those deprivations resulting from the decisions of its duly constituted legislative
body or of those officials whose acts may fairly be said to be those of the municipality.”
Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403–04 (1997). Such a
policy can take one of three forms: “(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well-settled as to constitute
a custom or usage with the force of law; or (3) an allegation that constitutional injury was
caused by a person with final policy-making authority.” Rasche v. Vill. of Beecher, 336
F.3d 588, 597 (7th Cir. 2003).
Ballheimer alleges the existence of a widespread custom within the Town of
unconstitutionally utilizing forced catheterizations to obtain urine samples from suspects.
No “bright-line” rule defines a widespread custom or practice, but a plaintiff generally
“must introduce evidence that acquiescence on the part of the policymakers was and
amounted to a policy decision.” Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016);
Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010). “There is no
clear consensus as to how frequently such conduct must occur to impose Monell liability,
except that it must be more than one instance or even three.” Thomas, 604 F.3d at 303
(internal citations omitted); see also Rodriguez v. Milwaukee Cty., 756 F. App’x 641, 643
(7th Cir. 2019), reh’g denied (Mar. 25, 2019).
The Town argues that the evidence establishes that no such custom or practice
existed. While Officer Batts testified that he directed the use of forced catheterizations,
executed pursuant to warrants authorizing reasonable force to obtain urine, on “several
occasions,” 13 there is no evidence that Chief Anderson was aware of the technique
13
Officer Batts could not confirm the number of occasions.
employed before Officer Batts. In fact, Chief Anderson unequivocally testified that he
was not aware. Officer Batts testified to the opposite effect, but both he clarified that
Chief Anderson would only become aware of the forced catheterizations (absent an
explicit conversation on the subject, which both Chief Anderson and Officer Batts deny
occurring) by reading the corresponding matter’s incident report. However, Chief
Anderson does not always read incident reports, and he denies doing so in any case where
a forced catheterization may have been used. Chief Anderson maintains that he had no
knowledge that officers may be utilizing this practice.
According to the Town, this evidence establishes that any forced catheterizations
were “isolated” occurrences. We disagree that this evidence forecloses finding that a
widespread custom or practice existed. Officer Batts testified that he has utilized forced
catheterizations in similar circumstances on “several” occasions. We are without even a
ballpark estimate as to what “several” means. Three? Ten? Fifty? Without even slight
quantification as to how often the unconstitutional conduct occurred, we cannot conclude
that the violations occurred on fewer than the minimally required “one or three instances”
as discussed in the case law is necessary to establish a widespread custom. Additionally,
the Town has not presented any evidence as to whether other officers were partaking in
this conduct. Officer Batts’s testimony that he “did not know” if his fellow officers
utilized this technique does not establish as an evidentiary matter that it was not an
ongoing practice, as the Town apparently believes.
The Town next argues that Ballheimer cannot prevail because Chief Anderson did
not actively participate in the deprivation. To its detriment, the Town never addresses the
proper legal principles in assessing the its culpability by virtue of Chief Anderson. The
relevant question, overlooked by both parties, is whether Chief Anderson was
“deliberately indifferent” as the “known or obvious consequences” of his actions.
Deliberate indifference, in the context of a widespread practice theory, means “a
reasonable policymaker [would] conclude that the plainly obvious consequences of [his]
actions would result in the deprivation of a federally protected right.” Gable v. City of
Chicago, 296 F.3d 531, 536 (7th Cir. 2002) (quoting Bd. of County Comm’rs v. Brown,
520 U.S. 397, 411 (1997); Brock v. Casteel, No. 1:13-CV-01577-DML, 2015 WL
3439236, at *9 (S.D. Ind. May 28, 2015); Hall v. City of Chicago, No. 12 C 6834, 2012
WL 6727511, at *6 (N.D. Ill. Dec. 28, 2012). These consequences may be plainly
obvious when one knows or should know of their existence. Wilson v. Cook Cty., 742
F.3d 775, 781 (7th Cir. 2014).
“The question of whether the defendants’ conduct constituted deliberate
indifference is a classic issue for the fact finder.” Armstrong v. Squadrito, 152 F.3d 564,
577 (7th Cir. 1998). We cannot determine whether the evidence is so pervasive that it
forecloses a reasonable jury from finding that the Town acted deliberately indifferently
when it has failed to apply the relevant legal standards. We also note that the Town
fixates on Sheriff Anderson’s purported lack of actual knowledge without ever
addressing the fact that the determination of “conscious disregard” is not limited to
consideration of only his actual knowledge. See Wilson, 742 F.3d at 781; King v. Kramer,
680 F.3d 1013, 1021 (7th Cir. 2012); Elliott, 686 F. Supp. 2d at 867. One of Sheriff
Anderson’s reporting officers utilized the forced catheterizations on numerous occasions,
which were documented in his incident reports. That same officer testified that he
discussed doing so with other lieutenants.[Dkt. 48-6, at 84]. Based on this evidence, a
reasonable juror is not barred from finding that Sheriff Anderson should have known of
the violations irrespective of what he actually knew.
Finally, we will not grant the Town’s motion with respect to Ballheimer’s “failure
to train” argument. The Town conclusively states that Ballheimer has not shown that a
failure to train was the moving force behind the constitutional deprivation. The Town
again fails to 1) satisfy its burden of establishing that a reasonable jury is foreclosed from
finding that a failure to train was the moving force behind the constitutional deprivation
and 2) address or apply the relevant legal principles of the failure to train doctrine. See
Palmquist v. Selvik, 111 F.3d 1332, 1347 (7th Cir. 1997).
CONCLUSION
Defendants’ Motion for Summary Judgment [Dkt. 87] is denied in part and
granted in part. Defendants’ motion is granted in full with respect to the individual
defendants, but denied with respect to the Monell claim. Plaintiff’s Motion for Summary
Judgment [Dkt. 93] is denied.
IT IS SO ORDERED.
Date:
3/20/2020
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
William W. Barrett
WILLIAMS HEWITT BARRETT & WILKOWSKI LLP
wbarrett@wbwlawyers.com
Toni M. Everton
WILLIAMS BARRETT & WILKOWSKI, LLP
teverton@wbwlawyers.com
Stephen G. Gray
ATTORNEY AT LAW
misstuffy@aol.com
Kirk A. Horn
MANDEL HORN, P.C.
khorn@mhmrlaw.com
Daniel J. Paul
WILLIAMS HEWITT BARRETT & WILKOWSKI LLP
dpaul@wbwlawyers.com
Joshua J. Rauch
MANDEL HORN, P.C.
jrauch@mhmrlaw.com
Todd L. Sallee
TODD SALLEE LAW
toddsalleelaw@yahoo.com
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