United States District Court, N.D. Indiana, Fort Wayne Division
ANTHONY C. MARTIN, Plaintiff,
FORT WAYNE POLICE DEPARTMENT, et al., Defendants,
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on: (1) Defendants' Motion for Summary Judgment and Designation of Evidence, filed by Defendants on May 15, 2013 (DE #101); (2) Plaintiff's Motion to Strike Defendants Summary Judgment and Affidavits Rule 12(f) of the F.R.C.P., filed by Plaintiff on June 13, 2013 (DE #106); and (3) Defendants' Motion to Strike Portions of Anthony C. Martin's Affidavit, filed by Defendants on June 27, 2013 (DE #108). For the reasons set forth below, the Motion for Summary Judgment (DE #101) is GRANTED, Plaintiff's Motion to Strike Defendants' Summary Judgment and Affidavits (DE #106) is DENIED, and Defendants' Motion to Strike Portions of Martin's Affidavit (DE #108) is also DENIED. The Clerk is DIRECTED to close this case.
On February 22, 2011, pro se Plaintiff, Anthony C. Martin ("Martin"), filed a complaint in the Allen Superior Court. (DE #1.) The original complaint alleged that the Fort Wayne Police Department, Officer Drummer #10029 ("Officer Drummer"), Three Unknown Officers, and Desk Clerk Candice (collectively, "Defendants"), violated his Fourth and Fourteenth Amendment rights and additionally alleged state law claims for harassment, retaliation, defamation and emotional distress. ( Id. ) On October 6, 2011, a Notice of Removal was filed by Defendants. (DE #2). In that notice, Defendants set forth their contentions for removal based on federal question jurisdiction pursuant to 28 U.S.C. sections 1441 and 1446. On October 7, 2011, Martin was ordered to file an amended complaint because his original complaint was unsigned. (DE #4.) Martin filed the signed amended complaint on October 19, 2011, which included the same general claims described above, and he also filed a motion to remand on that same day. (DE #11 & DE #12.) Martin's motion to remand was denied. (DE #16.) Martin subsequently requested leave to amend his complaint to add additional parties as well as to amend his claims and demand for relief. (DE #21 & DE #23.) Magistrate Judge Roger B. Cosbey granted Martin's unopposed requests to amend his complaint on December 5, 2011. (DE #27.) The City of Fort Wayne, Mayor Tom Henry ("Mayor Henry"), and Chief of Police Rusty York ("Chief York") were added to the collective list of Defendants, and Martin's claims were revised to include First Amendment, Fourth Amendment, Fourteenth Amendment, harassment, retaliation, defamation, and emotional distress claims as described in Martin's supplement. (DE #27; see also DE #21 & DE #23.) Martin alleges the following facts in the controlling pleading:
On November 3, 2010 at approx. 9:15 pm plaintiff/petitioner was parked on Masterson street (214 E. Masterson plaintiff's family residence) which a fully marked police car #10029 (Officer Drummer) drive past as plaintiff was walking out to his vehicle.
Plaintiff got inside his vehicle that he was driving that day and turned left onto Clinton, while driving southbound plaintiff notice the police car making a complete u-turn nearly causing an accident maneuvering and accelerated at high speeds to make his way behind plaintiff activating his emergency lights, signaling plaintiff to pull over. Plaintiff was rudely snatched out of his car, handcuffed roughly and placed into the back of an unknown police vehicle. Plaintiff was detained for more than twenty minutes unwillingly beyond plaintiffs will while his vehicle was being searched by the initial officer, a K-9 police dog and several unknown police officers mentioned in this complaint. Plaintiff was released and ordered to leave the scene or be attested which plaintiff told the officer he was driving to Creighton Ave. to report the officer which plaintiff got into his car and headed towards the police station. Plaintiff witnessed in his rear view mirror that a police car was accelerating at high speeds with his emergency lights on, signaling plaintiff to stop. Plaintiff fearing for his life drove to the nearest gast station (Shell gas station/Pontiac and Clinton St.) Which plaintiff was searched again this time resulting in the officers searching inside the trunk and under the hood of the vehicle as if the officers were searching for secret compartments or stash spots after roughly twenty to twenty five minutes plaintiff was let go and ordered to leave the scene. Officer #10029 stated to the plaintiff that he "will get his" by the officer of his crew (meaning that the officers have an internal click or secret group within the FWPD) Plaintiff drove to police station to report the incidents which plaintiff talked to a desk clerk named Candace who was very unprofessional and uncooperative in helping plaintiff file a complaint. Plaintiff was called a liar by the desk clerk which an unknown officer came from the back room shoving plaintiff out of the police station. Plaintiff was denied to make a complaint which the unknown officer balled up a FWPD complaint form striking plaintiff and told plaintiff to "do it by mail" throwing the envelope of the FWPD complaint also to the plaintiff, ordering plaintiff to leave or he would be arrested.
(DE #23, p. 3.)
On September 14, 2012, Martin filed a motion to amend his amended complaint, seeking to add equal protection and due process claims. (DE #69.) This motion was denied by Magistrate Cosbey because it was untimely and because Martin failed to establish good cause for the untimely amendment. (DE #70.) On December 12, 2012, Martin filed another motion to amend his amended complaint, this time seeking to "supplement the unknown officers or John Does" by naming Sergeant James Ritchie, Officer Derrick Demorest, and the "911 Dispatcher on February 16, 2011" as additional defendants. (DE #87.) This motion was also denied by Magistrate Cosbey because it was filed more than seven months after the deadline to amend and because Martine failed to establish good cause for the untimely request. (DE #94.) Significant additional motion practice ensued during various discovery disputes.
On May 15, 2013, Defendants filed the instant motion for summary judgment. (DE #101.) As required by Local Rule 56-1(f), Defendants served Martin with a Notice of Summary Judgment Motion. (DE #103.) On June 12, 2013, Martin filed a response to Defendants' summary judgment motion. (DE #104.) Defendants filed a reply on June 27, 2013. (DE #107.) In addition, Martin filed a motion to strike Defendants' summary judgment motion on June 13, 2013, and Defendants filed a motion to strike portions of Martin's affidavit on June 27, 2013. (DE #106 & DE #108.) Defendants filed a response to Martin's motion to strike on June 27, 2013, but Martin did not respond to Defendants' motion. (DE #110.) Therefore, all of the instant motions are ripe for adjudication.
PRELIMINARY EVIDENTIARY ISSUES
Martin's Motion to Strike
Martin has filed a motion to strike the summary judgment motion and related affidavit filed by Defendants. (DE #106.) According to the caption, Martin brings his motion pursuant to Federal Rule of Civil Procedure 12(f). Rule 12(f) provides that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). However, a summary judgment motion is not a pleading, and bringing a motion to strike it under Rule 12(f) is procedurally improper. See Fed.R.Civ.P. 7(a) (defining pleadings finitely with a list that does not include motions). Furthermore, a motion to strike under Rule 12(f) is untimely at this stage in the proceedings. See Fed.R.Civ.P. 12(f)(2) (party may move to strike "within 21 days after being served with the pleading" if no response is allowed). Although entitled to some procedural protections, including liberal construal of documents, even pro se litigants must comply with procedural rules. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998). Thus, Martin's motion fails on procedural grounds.
Martin's motion to strike also fails on substantive grounds. As to the summary judgment motion itself, Martin refers to it as "vague', untimely, and considerate (sic) an ambush' to plaintiff." (DE #106, p. 1.) Martin does not expand upon the alleged vagueness of the document. However, he does assert that the "suppository and non-suppository motions" deadline was February 22, 2013, and he laments that Defendants waited until the day of the deadline to file their motion. ( Id. ) The Court can only assume that Martin is referring to the dispositive motion deadline, which was set by this Court on April 9, 2013, via oral order and indicates that "any and all Dispositive and/or Daubert Motions are to be filed on or before 5/15/2013." (DE #98.) Defendants filed their motion for summary judgment on May 15, 2013, and, therefore, it is considered timely. Martin's argument is without merit.
As to the request to strike Officer Drummer's affidavit, Martin contends that it should be stricken from the record because it contains "newly discovered evidence." (DE #106, p. 2.) He claims that Defendants never mentioned Officer Souther or Detective Strayer by name in any of Martin's discovery requests. ( Id. ) In response, Defendants point to the record and state that "Martin was provided with information referencing Officer Souther and Detective Strayer well in advance" of the filing of the summary judgment motion. (DE #110, p. 4.) They further point out that Officer Souther is not mentioned in Officer Drummer's affidavit at all. ( Id. ) The Court has examined the docket and agrees with Defendants. (See DE #44; DE #65; DE #68.) Officer Drummer's affidavit does not contain "newly discovered evidence" related to either Officer Souther or Detective Strayer, and Martin's argument is unfounded. Next Martin urges the Court to view the affidavit as "vague, coerced, and unrealistic." (DE #106, p. 2.) In support of this argument Martin simply points to Officer Drummer's prior disciplinary record. However, the Court notes that Officer Drummer's disciplinary record with the Fort Wayne Police Department is irrelevant, as none of the information provided pertains to the date of the alleged occurrence at issue in this case. Finally, Martin suggests that the Court use "common sense" to strike the affidavit because no other officer wrote a report or supplement detailing the incident. ( Id. ) However, Martin has not provided any evidence that such a practice is standard or required by the Fort Wayne Police Department, and the Court will not strike the affidavit on that basis. For these as well as procedural reasons, Martin's motion to strike is DENIED in its entirety.
Defendants' Motion to Strike
Defendants have filed a motion to strike all but two paragraphs of Martin's affidavit. (DE #108.) It is noteworthy that Martin is a pro se plaintiff; however, his pro se status does not relieve him from complying with the procedural rules associated with summary judgment. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) (requiring pro se plaintiff to strictly comply with Northern District of Illinois Local Rule 56.1); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (explaining that pro se litigants must still comply with procedural rules). Martin is an experienced pro se litigator,  and, more importantly, pursuant to Rule 56 and Local Rule 56-1, Martin was specifically given notice of the filing of summary judgment, which cited, inter alia, the requirement that:
An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56(c)(4) (quoted in the Notice of Summary-Judgment Motion, DE #103.) "An affidavit not in compliance with Rule 56 can neither lend support to, nor defeat, a summary judgment motion." Paniaguas v. Aldon Cos., No. 2:04-CV-468-PRC, 2006 WL 2568210, at *4 (N.D. Ind. Sept. 5, 2006) (citing Zayre Corp. v. S.M. & R. Co., Inc., 882 F.2d 1145, 1148-49 (7th Cir. 1989); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989)). Therefore, the following statements need not be considered by the Court in deciding the motion: (1) conclusory allegations lacking supporting evidence; (2) legal argument; (3) self-serving statements without factual support in the record; (4) inferences or opinions not grounded in observation or other first-hand experience; and (5) mere speculation or conjecture. Heltzel v. Dutchmen Mfg., Inc., No. 3:06-CV-0227-WCL, 2007 WL 4556735, at *4 (N.D. Ind. Dec. 20, 2007) (citations omitted).
In this case, Defendants argue that the Court should strike paragraphs two, three, four, five, six, seven, nine, ten, and eleven of Martin's affidavit, contending it sets forth inadmissible hearsay, vague and speculative statements, and legal conclusions. (DE #108 & DE #109.) The remedy requested by Defendants, which asks the Court to strike almost every paragraph in full, is overly broad. Some of the material in the affidavit is proper.
The Court notes that in ruling on a motion for summary judgment, the Court considers only evidence that is consistent with the standards set forth above. The Court has duly noted Defendants' objections (as well as Martin's lack of response to such objections) and is able to sift through the evidence and to consider each piece under the applicable federal rules. Thus, there is no need to strike all of Martin's affidavit. Accordingly, the Court DENIES Defendants' motion to strike Martin's affidavit as overly broad and unnecessary.
Summary Judgment Standard
Summary judgment must be granted when "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). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. In determining whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). "However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture." Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion may not rely on allegations or denials in her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the non-moving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
On November 3, 2010, while on duty as a Fort Wayne police officer, Officer Drummer was advised by Fort Wayne Police Detective Darrin Strayer that a white vehicle was traveling very fast and had run a red light at the corner of Wallace Street and Hanna Street. (Aff. of Drummer, ¶¶ 3 & 4; see also Supplemental Narrative of Strayer, DE #44-1, p. 3.) Martin admits that he was driving an "all-white Nissan" but denies that he was driving fast. (Aff. of Martin, ¶¶ 2 & 6.) When Officer Drummer caught up with the vehicle, it was "driving fine." (Aff. of Drummer, ¶ 5.) The vehicle eventually pulled into the Shell gas station as did Officer Drummer. ( Id. at ¶ 6; Aff. of Martin, ¶ 7.) Martin exited the vehicle and walked towards the gas station convenience store. (Aff. of Drummer, ¶¶ 7 & 8.) As he was walking into the store, Officer Drummer heard Martin state, "Licensed up this time mother f**ker, licensed up this time mother f**ckers." ( Id. at ¶ 7.) When Martin came out of the convenience store with his identification in hand, Officer Drummer inquired of him whether he needed anything. ( Id. at ¶ 8.) According to officer Drummer, Martin stated, "Since you were following me, I didn't do anything wrong." ( Id. ) Martin also advised Officer Drummer that he had not run a red light at the intersection of Wallace Street and Hanna Street. ( Id. ) At that point, Officer Drummer asked Martin for his identification. ( Id. ) Officer Drummer told Martin to stand in front of his squad car while he ran his information, and Officer Drummer's in-car camera with body microphone was activated. ( Id. at ¶ 9; see also DVD provided to the Court at DE #66.) Officer Drummer ran Martin's information and found that Martin had a valid driver's license and no outstanding warrants. ( Id. at ¶ 10.) Martin claims that an unknown male officer was making racial and unprofessional comments to him at that time. (Aff. of Martin, ¶ 9.) Martin claims that he attempted to attain the unknown officer's name but was ordered to leave by Officer Drummer. ( Id. ) Officer Drummer admits that he ordered Martin to leave, but he claims that Martin's requests for identification were made to him. (Aff. of Drummer, ¶ 11.) There are no other officers seen or heard on the DVD of the in-car camera recording. (DVD at DE #66.) The in-car camera recording does not show Officer Drummer (or any other officer) having physical contact with Martin or searching his car or person. ( Id. ) Officer Drummer attests to the same. (Aff. of Drummer, ¶ 15.) Martin and Officer Drummer both left the Shell gas station in their separate vehicles. (Aff. of Drummer, ¶ 13.) The encounter lasted approximately two minutes. (DVD at DE #66.)
In his deposition, Martin stated that the Nissan he was driving at the time of the alleged incidents was owned by his girlfriend, Amanda Delagrange. (Dep. of Martin, 11:4-7, Aug. 6, 2012.) Also, when questioned during his deposition, Martin stated that desk clerk Candice LNU "didn't do ...