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Redd v. City of Evansville

United States District Court, S.D. Indiana, Evansville Division

May 30, 2014

KIVON D. REDD, Plaintiff,
v.
CITY OF EVANSVILLE, INDIANA, MICHAEL R. WARD, JOHN PIESZCHALSKI, BRAD HILL, OR HIS SUCCESSOR IN OFFICE, AS THE CHIEF OF POLICE OF THE CITY OF EVANSVILLE, INDIANA, Defendants.

ENTRY ON DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT and REQUEST FOR ORAL ARGUMENT

RICHARD L. YOUNG, District Judge.

In the early morning hours of May 29, 2010, the plaintiff, Kivon D. Redd, was arrested by Officer Michael R. Ward and Officer John Pieszchalski from the Evansville Police Department ("EPD") for disorderly conduct and resisting law enforcement. Following his acquittal, Plaintiff brought the present lawsuit under 42 U.S.C. ยง 1983 ("Section 1983") against the City of Evansville, Officer Ward, Officer Pieszchalski, and then-Chief of Police, Brad Hill, for various violations of his Fourth and Fourteenth Amendment rights. Plaintiff also brings three Monell claims against Chief Hill, in his official capacity, arising from Officer Ward's use of pepper spray, and three state law claims for false arrest, false imprisonment, and battery. Defendants now move for summary judgment in an amended motion. For the reasons set forth below, Defendants' Amended Motion for Summary Judgment is GRANTED in part and DENIED in part. Defendants' request for oral argument is DENIED.

I. Factual Background

Nearly every material fact at issue is disputed. As this is a motion for summary judgment brought by the Defendants, the court must take the facts and all reasonable inferences that arise therefrom in the light most favorable to the Plaintiff.

On May 29, 2010, Nikita Owens hosted a graduation party at the Scottish Rite with approximately 70 invited guests and four chaperones. (Filing No. 61-2, at ECF p.

4). The party began at 9:00 p.m., and was described as a "normal party atmosphere" with music, dancing, and non-alcoholic refreshments. (Filing No. 65-4, at ECF p. 7; Filing No. 65-5, at ECF p. 3). Plaintiff drove to the party with Kendal Brown, a close friend of Nikita's, and Diana Snaden. (Filing No. 65-4, at ECF p. 5). They arrived between 10:30 and 11:00 p.m. (Filing No. 65-4, at ECF p. 5).

Not long after Plaintiff, Brown, and Snaden arrived, a verbal altercation broke out among two males. (Filing No. 65-4, at ECF p. 7; Filing No. 65-5, at ECF p. 4). Betty Boyd, the mother of one of the party's hosts, Tayra Wiley, escorted one of the men involved out of the party. (Filing No. 65-4, at ECF p. 7). Not long before 12:30 a.m., a second verbal altercation arose between two uninvited males. (Filing No. 65-5, at ECF p. 5; Filing No. 61-2, at ECF pp. 4-8). Due to this second altercation, the chaperones decided to call off the party. (Filing No. 65-5, at ECF pp. 4-5). The lights in the Scottish Rite were turned on, the music stopped, and the chaperones told the party guests to exit the building. (Filing No. 65-4, at ECF p. 8).

The altercation moved into the Scottish Rite parking lot, with a group of spectators following along to watch. (Filing No. 65-4, at ECF p. 9; Filing No. 65-5, at ECF. P. 5). Seeing this, Boyd instructed one of the chaperones, Damita Thompson, to call 911. (Filing No. 65-5, at ECF p. 5). Internal Affairs records show the call was made at 0:28:08 (12:28:08 a.m.). (Filing No. 61-13).

Officer Ward and Officer Pieszchalski were the first respondents to arrive at the Scottish Rite, as they were patrolling the downtown area, and were only blocks away. (Filing No. 65-7, at ECF p. 2). They arrived within approximately two minutes. (Filing No. 61-13) (Internal Affairs Timeline showing they were "about to arrive" at 0:29:35). Officer Ward testified that as they approached the scene, he turned the vehicle's lights and siren off, and observed pockets of people all over the parking lot in groups of two to five people. (Filing No. 65-8, at ECF p. 3; Filing No. 60-1, at ECF p. 2). Officer Pieszchalski testified that the crowd was so loud, the majority of those in the parking lot did not know he was there, despite the fact that he was yelling and screaming for them to disperse. (Filing No. 65-7, at ECF p. 5). Because the crowd was unaware of his presence, he did not feel threatened by the crowd. (Filing No. 65-7, at ECF p. 5).

Officer Ward observed six males in a tight group; he noted that two were being held back by two females. (Filing No. 65-8, at ECF p. 5; Filing No. 65-4, at ECF p. 13). Soon thereafter, the two males broke free. (Filing No. 65-8, at ECF p. 5 (Officer Ward testifying that the two broke free within two minutes of his arrival on the scene); Filing No. 65-7, at ECF p. 5 (Officer Pieszchalski testifying that the two broke free within "15, 20 seconds" after his arrival on the scene). At that point, Officer Ward used a MK 46 riot extinguisher (a/k/a an OC canister) to disperse oleoresin capsicum, or "pepper spray, " into the crowd without any prior warning. (Filing No. 65-8, at ECF pp. 5, 7; Filing No. 65-7, at ECF p. 5) (Officer Piezschalski testifying that he was hit by pepper spray after telling the crowd to leave three or four times).

Plaintiff was one of the party-attendees watching the altercation. Plaintiff estimates that at the time Officer Ward dispersed the pepper spray, he was three to four feet from the circle of people watching the verbal fight, and his back was to Officer Ward, who was roughly five feet behind him. (Filing No. 65-4, at ECF p. 13). The spray hit the left side of his face, his left eye, and his back/neck area. (Filing No. 65-4, at ECF p. 13). As he started to jog toward his car, he saw Officer Ward with the OC canister in his hand, and said in a loud voice, "Why did you spray me? That's bullshit. I didn't do anything." (Filing No. 65-4, at ECF p. 15). Officer Ward walked up to him and said, "What did you say? Get on the ground." (Filing No. 65-4, at ECF p. 15; Filing No. 61-4, at ECF p. 4). Plaintiff's friend, Kendal Brown, came over and asked Officer Ward if he could take Plaintiff home. (Filing No. 65-4, at ECF p. 16). Officer Ward said "No." (Filing No. 65-4, at ECF p. 16). Officer Ward then told Plaintiff to "get on the ground now" or he would spray Plaintiff again. (Filing No. 65-4, at ECF p. 16; Filing No. 61-4, at ECF p. 4). Plaintiff did as he was told; he laid face down and put his hands behind his back. (Filing No. 65-4, at ECF p.p. 16-17). After Officer Ward put handcuffs on him, he (Officer Ward) ran across the parking lot, and Officer Pieszchalski put his foot on Plaintiff's back. (Filing No. 65-4, at ECF p. 16). Plaintiff asked Officer Pieszchalski what he was being arrested for, but received no response. (Filing No. 65-4 at ECF p. 17). Plaintiff then said, "You don't know who you're fucking with. You don't know who my father is. I didn't do anything. This is - this is not right." (Filing No. 65-4, at ECF p. 17). By the time the second EPD car arrived at 0:32:28 (12:32:28 a.m.), Plaintiff was in custody. (Filing No. 61-13) (Internal Affairs Timeline showing Officer Hirshman and Craig arriving at 0:32:28). Plaintiff estimates he was on the ground for three to five minutes. (Filing No. 65-4, at ECF p. 18). During that time and due to the pepper spray, his face burned, his breathing was somewhat labored, and he could barely see out of his left eye. (Filing No. 65-4, at ECF p. 15).

Following the incidents at the Scottish Rite, Chief Hill ordered an investigation by Internal Affairs. (Filing No. 65-6, at ECF p. 3). Neither Internal Affairs, nor Chief Hill, found fault in the conduct of the officers. Filing No. 65-6, act ECF p. 2).

On August 18 and 19, 2010, Plaintiff went to trial on charges of disorderly conduct and resisting law enforcement under Cause No. 82D02-1007-CM-000704. The presiding judge from the Vanderburgh Superior Court granted a motion for judgment on the evidence in favor of Plaintiff on the disorderly conduct charge, and the jury found him not guilty for resisting law enforcement. This case followed.

Any additional facts necessary to the disposition of this motion will be addressed in the Discussion Section.

II. Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate "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 movant bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of designated evidence which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After "a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation marks and citation omitted).

A factual issue is material only if resolving the factual issue might change the outcome of the case under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson, 477 U.S. at 248. In deciding a motion for summary judgment, the court "may not assess the credibility of witnesses, choose between competing reasonable inferences, or balance the relative weight of conflicting evidence.'" Bassett v. I.C. Sys., Inc., 715 F.Supp.2d 803, 808 (N.D. Ill. 2010) (quoting Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010)). Instead, it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes ...


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