MCCALISTER v. STEVENS et al

Filing 80

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - Jonathan Stevens, a West Terre Haute police officer, filed an "Intimidation Report" stating that as he was walking near the police station, someone shouted that he was a "f***in g dirty-ass cop" and threatened to shoot him. Officer Stevens's report identified William McCalister as the culprit and led to Mr. McCalister's arrest. Mr. McCalister brought this lawsuit alleging false- arrest claims in violation of federal and state law. Dkt. 1-1 at 5; see dkt. 54. Officer Stevens has moved for summary judgment. Dkt. 57 . Because there are genuine issues of material fact that must be resolved at trial, that motion is DENIED. Sergeant Froschauer, the only other remaining defendant, is DISMISSED with prejudice because Mr. McCalister is not maintaining any claims against him; the Clerk SHALL UPDATE the docket accordingly. (See Order.) Signed by Judge James Patrick Hanlon on 9/30/2019. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
WILLIAM MCCALISTER,

)
)
Plaintiff,
)
)
v.
)
)
JONATHAN STEVENS individually and as )
an officer of the West Terre Haute Police )
Department,
)
SGT. FROSHAUER individually and as an )
officer of the Terre Haute Police
)
Department,
)
)
Defendants.
)

No. 2:18-cv-00136-JPH-MJD

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Jonathan Stevens, a West Terre Haute police officer, filed an
“Intimidation Report” stating that as he was walking near the police station,
someone shouted that he was a “f***ing dirty-ass cop” and threatened to shoot
him. Officer Stevens’s report identified William McCalister as the culprit and
led to Mr. McCalister’s arrest. Mr. McCalister brought this lawsuit alleging
false-arrest claims in violation of federal and state law. Dkt. 1-1 at 5; see dkt.
54. Officer Stevens has moved for summary judgment. Dkt. [57]. Because
there are genuine issues of material fact that must be resolved at trial, that
motion is DENIED. Sergeant Froschauer, the only other remaining defendant,
is DISMISSED with prejudice because Mr. McCalister is not maintaining any
claims against him.

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I.
Facts and Background
Because Defendants have moved for summary judgment under Rule
56(a), the Court views and recites the evidence “in the light most favorable to
the non-moving party and draw[s] all reasonable inferences in that party’s
favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).
In 2011, Plaintiff William McCalister’s nephew, James Michael Mundy,
was a suspect in a burglary. Dkt. 59-1 at 3 (McCalister Dep. at 12). Defendant
Jonathan Stevens was dispatched to the scene. Dkt. 59-3 at 3 (Melton Dep. at
21). Mr. Mundy allegedly tried to drive over Officer Stevens, and Officer
Stevens shot and killed him. Dkt. 59-3 at 3–5 (Melton Dep. at 21–23); Dkt. 592 at 2–3 (Stevens Dep. at 46–47). That shooting caused tension between
Officer Stevens and Mr. Mundy’s family, including Mr. McCalister. Dkt. 59-3 at
17 (Melton Dep. at 59).
Several years later, in October 2015, Mr. McCalister was arrested on
battery charges. Dkt. 59-1 at 5–6 (McCalister Dep. at 14–15). Because of
tension created by Mr. Mundy’s death, Mr. McCalister did not want Officer
Stevens escorting him to jail after his arrest. Dkt. 59-1 at 5–6, 23–24
(McCalister Dep. at 14–15, 54–55). Another officer took Mr. McCalister instead.
Dkt. 59-1 at 8 (McCalister Dep. at 17).
Then, on December 2, 2015, Officer Stevens was walking near the police
station when he heard someone call him a “f***ing dirty-ass cop.” Dkt. 59-2 at
26 (Stevens Dep. at 101); dkt. 59-2 Exs. A, B. Officer Stevens identified that
person as Mr. McCalister. Dkt. 59-2 at 26 (Stevens Dep. at 101).
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Officer Stevens had Sergeant Froschauer join him to try to find Mr.
McCalister. Dkt. 59-2 at 13 (Stevens Dep. at 82). They drove in the area where
Mr. McCalister lived, but did not find him. Dkt. 59-2 at 16 (Stevens Dep. at
87). Officer Stevens filed a report about the incident, dkt. 59-2 at 6–7 (Stevens
Dep. at 59–60); dkt. 59-2 Ex. A, which led to Mr. McCalister being arrested and
charged with intimidation. Dkt. 59-3 Ex. J. The charge was dismissed with
prejudice after Crede Fitzpatrick, Mr. Mundy’s family friend, claimed that he
had shouted at Officer Stevens and several affidavits were submitted attesting
that Mr. McCalister was at work at the time of the incident. Dkt. 59-3 Exs. J,
K-1; dkt. 59-1 at 10–15 (McCalister Dep. at 21–26); dkt. 59-4.
Mr. McCalister filed this action, which Defendants removed to this Court,
alleging false arrest and false imprisonment against five police officers. Dkt. 1;
dkt. 1-1. Mr. McCalister dismissed three officers with prejudice, dkt. 64; the
remaining officers—Officer Stevens and Sergeant Froschauer—have moved for
summary judgment, dkt. 57.
II.
Applicable Law
A. Summary judgment
Summary judgment shall 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 moving party must
inform the court “of the basis for its motion” and specify evidence
demonstrating “the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
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burden, the nonmoving party must “go beyond the pleadings” and identify
“specific facts showing that there is a genuine issue for trial.” Id. at 324.
In ruling on a motion for summary judgment, the Court views the
evidence “in the light most favorable to the non-moving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante, 555 F.3d at 584.
III.
Analysis
A. Sergeant Froschauer
Sergeant Froschauer argues that he is entitled to summary judgment
because his limited involvement in Mr. McCalister’s arrest cannot support
liability. Dkt. 58 at 7–8. Mr. McCalister wrongly responds that he has already
dismissed Sergeant Froschauer as a defendant. Dkt. 70 at 1. In reply,
Sergeant Froschauer relies on that statement and asks to be dismissed. Dkt.
76 at 2.
Mr. McCalister has not asked to maintain any claim against Sergeant
Froschauer. Sergeant Froschauer is therefore entitled to dismissal with
prejudice. See Palmer v. Marion County, 327 F.3d 588, 597–98 (7th Cir. 2003);
Deputy v. City of Seymour, 34 F. Supp. 3d 925, 920 n.3 (S.D. Ind. 2014); dkt.
64.
B. Officer Stevens
1. Federal false-arrest claim
Officer Stevens argues that he’s entitled to summary judgment because
(1) Mr. McCalister’s arrest was not a constitutional violation and (2) he is
entitled to qualified immunity. Dkt. 58 at 10–14. Mr. McCalister responds
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that Officer Stevens violated his constitutional rights and is not entitled to
qualified immunity because “Officer Stevens did not behave as a reasonably
well-trained police officer should.” Dkt. 70 at 14.
“Qualified immunity protects officers performing discretionary functions
from civil liability so long as their conduct does not violate clearly established
statutory or constitutional rights that a reasonable person would know about.”
Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Mustafa v. City
of Chicago, 442 F.3d 544, 548 (7th Cir. 2006)). The right to be free from
arrests unsupported by probable cause has long been clearly established. Id.
at 250; Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). When that
right is violated, “[a] police officer who files a false report may be liable . . . even
if he did not conduct the arrest himself.” Acevedo v. Canterbury, 457 F.3d 721,
723 (7th Cir. 2006).
But qualified immunity applies if “arguable probable cause” supported
filing the report. Burritt, 807 F.3d at 249; see Acevedo, 457 F.3d at 723.
Arguable probable cause exists when “a reasonable officer could have
mistakenly believed that probable cause existed.” Id. at 250 (quoting Fleming
v. Livingston County, 674 F.3d 874, 880 (7th Cir. 2012)).
Officer Stevens argues that, at worst, his report’s identification of Mr.
McCalister as the culprit was a mistake that a reasonable officer could make.

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Dkt. 58 at 14. Mr. McCalister argues that Officer Stevens is not credible and
that any mistake was not reasonable. Dkt. 70 at 12–13. 1
As Officer Stevens recognizes, dkt. 59 at 10 n.5, the designated evidence
is sufficient for summary judgment purposes to show that the report was
false—that is, its identification of Mr. McCalister as the culprit was wrong.
Dkt. 59-1 at 10–15 (McCalister Dep. at 21–26).
The issue for determining whether qualified immunity applies, then, is
whether the false report was supported by arguable probable cause. See
Burritt, 807 F.3d at 249–50. If, as Officer Stevens argues, the false report was
based on arguable probable cause, then qualified immunity applies. See
Muhammad v. Pearson, 900 F.3d 898, 909 (7th Cir. 2018) (qualified immunity
applied when mistaken identity was reasonable because some corroborating
facts gave the officer arguable probable cause). But if the false report
intentionally or incompetently accused Mr. McCalister, then qualified immunity
does not apply. See Hunter v. Bryant, 502 U.S. 224, 229 (1991).
Officer Stevens argues that several facts gave him arguable probable
cause to report that Mr. McCalister was the person who yelled at him: (1) the
historical animosity between him and Mr. McCalister, (2) he had heard Mr.

The parties do not argue whether Officer Stevens had arguable probable cause to
believe that a crime had been committed, though Mr. McCalister mentions that “Mr.
Fitzpatrick was merely utilizing his first amendment rights.” Dkt. 70 at 9. Whether
Officer Stevens was threatened is disputed—Officers Stevens’s report says that the
culprit said “he was going to shoot me,” dkt. 59-2 Ex. A, while Mr. Fitzpatrick’s
affidavit said “I did not say anything, which would be construed as a threat,” dkt. 597. Regardless, Officer Stevens’s summary judgment motion can be resolved on the
question of whether filing the false report was supported by arguable probable cause.
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McCalister call him a “dirty-ass cop” before, (3) Mr. McCalister was Mr.
Mundy’s uncle and the culprit referred to Mr. Mundy as “nephew,” and (4) Mr.
McCalister lived near the police station. Dkt. 58 at 11–12.
But Officer Stevens’s second and third reasons are disputed facts for
summary judgment purposes and the Court “must give the non-moving party
the benefit of conflicts in the evidence about what the officers actually knew at
the time.” Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015). For the second
reason, the report says that when Mr. McCalister was arrested several weeks
earlier for an unrelated battery, Mr. McCalister called him a “dirty-ass cop that
shot Mike for no reason.” Dkt. 59-2 Ex. A; dkt. 59-2 at 26 (Stevens Dep. at
101). In contrast, Mr. McCalister testified that the “only thing” he said to
Officer Stevens at that time was that he didn’t want Officer Stevens to be the
one to take him to jail. Dkt. 70-4 at 7 (McCalister Dep. at 15). For the third
reason, Officer Stevens argues that whoever shouted at him referred to Mr.
Mundy as his “nephew,” and Mr. Mundy was Mr. McCalister’s nephew. Dkt. 58
at 12. But Officer Stevens did not include this detail in his report or deposition
testimony. See dkt. 59-2 (Stevens Dep.); dkt. 59-2 Ex. A. These factual
disputes must be resolved in Mr. McCalister’s favor, Zerante, 555 F.3d at 584,
so the Court cannot consider them as the basis for arguable probable cause.
That leaves Officer Stevens’s first and fourth reasons—the historical
animosity and that Mr. McCalister lived near the police station. Those general
reasons cannot support arguable probable cause because the report falsely
identified Mr. McCalister as the culprit even though Officer Stevens was only
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twenty feet away when he made the identification and Mr. McCalister looked
substantially different than Mr. Fitzpatrick. Dkt. 75-1 at 2 (McCalister Dep. at
28); dkt. 59-2 at 14 (Stevens Dep. at 83). At such a close distance, Officer
Stevens should have been able to tell the difference, yet he unequivocally
identified Mr. McCalister as the culprit. Dkt 59-2 Ex. A; see Dkt. 59-2 at 11–
12 (Stevens Dep. at 78–79). Moreover, the report did not provide any physical
description of the culprit, dkt. 59-2 Ex. A, and Officer Stevens would not
describe the culprit’s appearance at his deposition, dkt. 59-2 at 11–12 (Stevens
Dep. at 78–79).
Viewing the many disputed and uncertain facts in Mr. McCalister’s favor,
a reasonable jury could conclude that filing the false report was either
intentional or incompetent. See Hunter, 502 U.S. at 229. Such an error
cannot supply arguable probable cause:
[I]f an officer submitted an affidavit that contained
statements that he knew to be false or would have
known were false had he not recklessly disregarded the
truth and no accurate information sufficient to
constitute probable cause attended the false
statements, not only is his conduct the active cause of
the illegal arrest, but he cannot be said to have acted in
an objectively reasonable matter.
Lawson v. Veruchi, 637 F.3d 699, 704 (7th Cir. 2011) (citation omitted); see
Hart, 798 F.3d at 588. Without arguable probable cause, qualified immunity
provides no protection. Burritt, 807 F.3d at 249; see Kingsland v. City of Miami,
382 F.3d 1220, 1223 (11th Cir. 2004).

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The facts in this case are similar to the facts in Norris v. Bain, No. 1:04cv-1545-DFH-TAB, 2006 WL 753131 (S.D. Ind. Mar. 21, 2006) (Hamilton, J.).
There, Animal Control Officer Robert Stockton was investigating a barking dog
when a man on a porch across the street said that he had a rifle and would
shoot or kill Officer Stockton. Id. at *1. Officer Stockton called the police and
pointed them to a house he claimed the suspect was at. Id. at *2. Police
officers ordered everyone out of the house and arrested Duane Norris based on
Officer Stockton’s identification. Id. Mr. Norris sued Officer Stockton for
wrongful arrest, arguing that Officer Stockton falsely identified him. Id. at *3.
Officer Stockton was not entitled to qualified immunity because his
version of the story was uncorroborated and a witness testified that Mr. Norris
was in the back room of the house when Officer Stockton was allegedly
threatened. Id. at *3, 12–13. That created genuine issues of fact for trial about
whether “Officer Stockton made a deliberately false report of a threat and
falsely identified [Mr. Norris],” even though Mr. Norris showed no motive for
Officer Stockton to falsely accuse him. Id. at *3–4. Here there are even more
disputed issues of material fact because a jury could find that the historical
animosity between Officer Stevens and Mr. McCalister provided a motive for
falsely accusing Mr. McCalister. Like in Norris, when the evidence is viewed
favorably to Mr. McCalister, the Court cannot grant summary judgment on
qualified-immunity grounds. Id. at *12–13 (collecting cases). This case is
therefore in “the province of a jury,” regardless of whether Mr. McCalister is
“likely to prove [his] claim” at trial. Id. at *5.
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Officer Stevens argues that this case is instead like Wooden-Ousley v.
City of Chicago, 393 Fed. Appx. 378 (7th Cir. 2010) and Gibbs v. City of
Chicago, No. 12-cv-0566, 2014 WL 1031440 (N.D. Ill. Mar. 18, 2014)—cases
involving reasonable eyewitness identifications. Dkt. 76 at 3–6. In WoodenOusley, while the police investigation involved “glitches and inconsistencies,”
the evidence did “not suggest that [the officer] manipulated the identification
procedures.” 393 F. App’x at 380–81. And in Gibbs, no evidence “support[ed]
an argument that [the officers] either were lying or were unreasonably
mistaken in believing that they observed Gibbs shoot [the victim].” 2014 WL
1031440 at *3. But here, when the facts and reasonable inferences are viewed
in Mr. McCalister’s favor, there is a factual basis to conclude that Officer
Stevens intentionally or incompetently misidentified Mr. McCalister in his
report.
2. False arrest under the Indiana Tort Claims Act
Officer Stevens argues that because he was acting in the scope of his
employment, the Indiana Tort Claims Act gives him immunity from Mr.
McCalister’s state-law claim. Dkt. 58 at 14. Mr. McCalister did not address
this argument. See dkt. 76. Because Officer Stevens was employed by a
political subdivision, he has a “complete defense” if he was acting in the scope
of his employment. Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003)
(explaining the Indiana Tort Claims Act). Whether an action is in the scope of
employment is generally a fact question. Id. at 473.

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Officer Stevens’s argument is that “it is surely the epitome of a police
officer’s duty to report potentially criminal threats.” Dkt. 58 at 15–16. But as
explained above, whether the culprit threated to shoot Officer Stevens is a
disputed fact. Even if he was threatened, Officer Stevens provides no legal
authority showing that this is one of the “certain circumstances” when the
scope of employment may be determined as a matter of law. Bushong, 790
N.E.2d at 473. Officer Stevens has not designated evidence or cited authority
showing that he was acting in the scope of his employment as a matter of law
when he filed his report. For example, he has not explained why it was in his
scope of employment to misidentify Mr. McCalister while walking to his car
after the workday ended. See dkt. 59-2 at 9 (Stevens Dep. at 62). Disputed
material facts on these issues make summary judgment inappropriate.
IV.
Conclusion
Sergeant Froschauer is DISMISSED with prejudice; the Clerk SHALL
UPDATE the docket accordingly. Officer Stevens’s motion for summary
judgment, dkt. [57] is DENIED.
SO ORDERED.
Date: 9/30/2019

Distribution:
David P. Friedrich
WILKINSON GOELLER MODESITT WILKINSON AND DRUMMY
[e-mail]
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Justin Lee Froedge
GOEBEL LAW OFFICE
[e-mail]
Caren L. Pollack
POLLACK LAW FIRM, P.C.
[e-mail]
Zachary J. Stock
POLLACK LAW FIRM PC
[e-mail]
Michael K. Sutherlin
MICHAEL K. SUTHERLIN & ASSOCIATES, PC
[e-mail]

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