United States District Court, Southern District of Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANTS HANNUM’S AND SLONE’S MOTION FOR SUMMARY JUDGMENT
SARAH EVANS BARKER, JUDGE United States District Court
Plaintiff Mark Keaton, an Indiana lawyer, was arrested and prosecuted for stalking his ex-girlfriend, defendant Christine Zook. Keaton claims that the charges were nonsense and in retaliation for Keaton having composed and published a blog about his relationship with Zook. The State eventually dismissed the charges and Keaton filed this action pursuant to 42 U.S.C. § 1983 against the individuals involved with his arrest and criminal prosecution. The claims alleged against Indiana University Police Department officers, Detective Dave Hannum and Sergeant Leslie Slone, are the focus of the present motion. These officers seek resolution of the claims alleged against them through summary judgment.
For the reasons explained below, defendant Hannum’s and Slone’s motion for summary judgment [dkt. 135] is granted.
I. Remaining Claims Against Hannum and Slone
Keaton raises four § 1983 claims against Hannum and Slone in his amended complaint. Dkt. 7. Each of these counts includes a claim that the defendants conspired to violate Keaton’s constitutional rights. In the Entry Granting Defendant Zook’s Motion for Summary Judgment issued this same day, the Court holds that Keaton has produced no evidence supporting his claim that Zook entered a conspiracy with state officials to violate Keaton’s constitutional rights. For the reasons explained in that Entry, defendants Hannum and Slone are also entitled to summary judgment on the conspiracy claim. In addition, the conspiracy matters only with respect to defendant Zook, a private actor, because the other defendants “are state actors, and thus amenable to suit under 42 U.S.C. § 1983, by virtue of their offices.” Logan v. Wilkins, 644 F.3d 577, 583 (7th Cir. 2011) (citing Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). For these reasons, the conspiracy claims require no further discussion.
Count II has been abandoned by Keaton. He specifically concedes that summary judgment must be entered in favor of the defendants on his due process claim. See dkt. 215 at p. 29. Accordingly, no further analysis is necessary as to Count II.
The claims remaining for resolution in this action are the following: 1) Count I alleges that Keaton was falsely arrested; 2) Count III alleges the violation of Keaton’s equal protection rights; and 3) Count IV alleges the violation of Keaton’s First Amendment rights.
II. Standard of Review
A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them.” Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff’s claims, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep’t of Corrections, 175 F.3d 497, 504 (7th Cir.1999). When evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of a genuine issue for trial . . . against the moving party.” Celotex, 477 U.S. at 330.
III. Material Facts
The following statement of facts was evaluated pursuant to the standards set forth above.
Keaton and Zook were involved in a relationship for a few years prior to March 2008. The relationship began when Zook was 19 years old and Keaton was 41. Zook ended her relationship with Keaton in March 2008.
In December 2008, Zook changed her telephone number because Keaton refused to stop calling her. Keaton and Zook have not spoken on the phone since March 2008 when Zook changed her cell phone number. Shortly after she changed her telephone number, Zook’s landlord informed her that they had received faxes from Le C. Hook, a private investigator, requesting the name and telephone number of the tenant living in her unit.
Keaton continued to contact Zook by email. Zook warned Keaton that she would tell Dean Leonard Fromm, the Dean of Student Affairs of the Indiana University Maurer School of Law, of Keaton’s refusal to stop contacting her. On June 8, 2009, Dean Fromm wrote to Keaton on Zook’s behalf and asked him to discontinue all contacts with Zook, a then-current law student. Fromm wrote that if he did not comply immediately, Fromm would help Zook pursue other action. Keaton’s response to Dean Fromm’s correspondence, which Keaton shared via electronic mail with Zook, stated: “you are not in a position to ask me to refrain our mutual contact and you have been deceived. Dean Fromm, I know Ms. Zook, and I know how she can spin a story.” Dkt. 136-3, Ex. C-8. Dean Fromm suggested that Zook contact the prosecuting attorney of Monroe County for assistance and provided her with the name and contact information for Jacqueline Dakich, deputy prosecuting attorney. Dakich referred Zook to the Indiana University Police Department (“IUPD”) for assistance.
Zook met with IUPD Officer Slone in July 2009 to discuss Keaton’s conduct. Slone advised Zook to send Keaton an email directing him to stop emailing her and contacting her. On July 17, 2009, Zook sent Keaton an email which stated: “Stop contacting me. This is just more proof to help me pursue charges against you.” Dkt. 223-3 at ¶ 2. Between July 17, 2009, and August 19, 2009, Keaton sent Zook 51 emails. Id. at ¶ 3.
Zook did not respond to Keaton’s emails until August 19, 2009, when at about 2:40 p.m., she sent Keaton an email (blind copied to Slone at IUPD), that stated “Mark, Stop contacting me. Do not contact me via email, phone, in person, or through my friends. I have already been in contact with the police and I will be filing an official report if this does not stop.” Dkt. 136-3 Ex. C-11.
Keaton responded to Zook’s email approximately four minutes after it was sent: “That’s fine. . . . You are in contact with the police because I sent you an email. That’s a laugh. There is nothing wrong with sending someone an email.” Keaton threatened to send Zook’s then-current boyfriend an email disclosing personal information from Zook’s and Keaton’s relationship: “I want him to know things. [I] was willing to [be] persuaded not to, if you were ready to be a moral human being. You are not. You have threatened me with the ‘police.’” Zook forwarded this first email to the IUPD. Id.; Ex. C-12.
Eight minutes later at 2:52 p.m., Keaton sent another email to Zook, again threatening to send an email to Zook’s then-current boyfriend and using the threat as blackmail to make Zook contact Keaton: “If you rethink your position, before I transmit this, let me know.” Zook forwarded this second email to the IUPD. Id.; Ex. C-13.
Keaton’s next email to Zook was sent twenty-six minutes later at 3:18 p.m. It reiterated his threat to email Zook’s boyfriend and demanded that Zook contact him: “I don’t need your permission to send an email to him. If you would like to discuss it beforehand, if you think I should not send it, you can respond to this email. . . . I will respect your desire not to communicate with me. You have no authority at all to insist that I not share the truth with anyone else. That’s a gift that only I can give you. If you want such a gift, earn it.” Zook forwarded this third email to the IUPD. Id. Ex. C-14.
Eighteen minutes later at 3:36 p.m., Keaton sent Zook an email from a different email address, entitled “Now” and containing no text. Id.; Ex. C-15. This was apparently a reference to his prior threats to send the email to Zook’s then-current boyfriend. Zook forwarded this fourth email to IUPD.
Forty-six minutes later at 4:22 p.m., Keaton sent yet another email reiterating his threat: “You want it sent. You want him to know. You want everyone to know. You want to be the victim, but you also want something to happen to force you to get help . . . Do you want to see what he will receive?” Zook forwarded this fifth email to IUPD. Id. Ex. C-16. Twenty-seven minutes later at 4:49 p.m., Keaton sent another email which stated: “Think of the consequences of responging. [sic] Think of the consequences of not responding.” Zook forwarded this sixth email to IUPD. Id.; Ex. C-17.
Four minutes later, at 5:53 p.m., Keaton sent his seventh email responding to Zook’s request not to contact her, which Zook forwarded to IUPD:
Get right with God. . . . you have seen how fragile life is. Do not burn for all eternity because you cannot admit how evil you have been. Repent. Do not draw so many others into unwitting evil as you have done. Innocent people to whom you have lied about me are tainted with an evil that will send them to hell as well, if they never seek the truth and never learn it from you. We all have a duty to do right by others, and you are fostering evil behavior towards me by others.
You are ill and you know it and have always known it.
Tell me, Christine. What's right and wrong? Doesn't Jake deserve the truth? Can you fault a good man for telling him the truth? He needs to know the truth. FIX IT NOW.
Id.; Ex. C-18.
Detective Hannum became involved on August 19, 2009, when Sgt. Slone asked him to telephone Keaton. Slone provided Hannum with the email in which Zook asked Keaton to cease contacting her and the emails which Keaton had sent to Zook in response. At 6:00 p.m., Hannum called Keaton and explained to Keaton that he needed to stop contacting Zook and the person Zook was dating. Hannum stated that if Keaton continued to contact Zook, charges would be filed against him and he would be arrested. Hannum specifically instructed Keaton to stop sending Zook email messages.
In response, Keaton told Hannum that sending emails was not harassment nor against the law. Keaton explained that he and Zook emailed frequently and that if she was receiving emails from Keaton it was because she wanted to receive them. Keaton stated that he could speak to anyone he wanted concerning Zook. Keaton also acknowledged that he had sexually explicit photographs of Zook. Keaton told Hannum that Zook had a history of mental health issues and false stalking allegations and offered names of people who could provide Hannum with additional information. Keaton eventually said that he would have no more contact with Zook.
However, at 9:00:59 p.m. and 9:14:09 p.m., Keaton again emailed Zook. Dkt. 136-3; Ex. C-19; Ex. C-20. These emails escalated his threats to include his impending suicide in an attempt to get Zook to contact him. At 9:00:59 p.m., Keaton sent:
What you have done is shameful. Utterly shameful. . . . I have done nothing wrong. . . . This is your last chance to apologize to me, Christine. All the IU cop said was that if you got a protective order and if I violated it, it would be a problem. But you do not have one and you cannot get one. And you cannot get one because you have never been threatened or harassed. And you have made no attempt because you know that all evidence would be relevant. If you mentioned that the gravamen of emails was the pictures . . . You’d have to tell the judge, and you would get a ruling that they are in the public domain because they are public and you dessimated [sic] them. And your mental health records would be at issue, which the cop now knows. . . . And there is nothing improper about emails to other people. . . . You would lose a motion for protective order. You would damage your reputation and perhaps your career. . . . But as a lawyer, I encourage you to try. I tell you it will be too late. Tonight will be too late. I want to die if there are people in the world like you. Do you understand that you love me? Apologize and fix this, or win in the way that you do not want to win. I'm tired of a world in which such disordered personality can attempt to destroy a man so good and moral and kind and loving. I have made my arrangements, written my letters, locked my doors. No one but you at this point can find me or reach me by phone. You and your friends just experienced the death of a loved one. Will you go that far, Christine? I promised the IU cop you wouldn't ever hear from me again. You will not, absent a response. If your shame and my life are no longer factors in your mind, do not respond.
Id.; Ex. C-19. At 9:14:09 p.m. Keaton sent: “I am leaving my computer. I will not check it again. You can reach me by phone. It is your last chance. Do what is right. I will wait some period of time for you, but not beyond midnight.” Id., Ex. C-20.
After receiving these threats by Keaton to commit suicide, Zook contacted the IUPD to let them know of his contacts and to alert them to Keaton’s suicide threat. Hannum called Keaton and asked whether Keaton was going to harm himself. Keaton assured Hannum that he was not going to harm himself.
Hannum again reiterated his instruction to Keaton not to contact Zook. Keaton told Hannum that since Zook had not obtained the protective order yet, he had not committed any crime and he could email her if he wanted. Keaton told Hannum that he is a lawyer and knows how protective orders work. Keaton stated that he did not think Zook would actually get a protective order because she did not really want one; she would not want private information about her becoming public; and because she could not show that Keaton is a threat to her physical safety. Keaton stated that he had not been near Bloomington, Indiana, where Zook lived since the fall of 2008. Hannum then told Keaton there was a possibility that this matter could be brought to the attention of the Indiana ...