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Cummings v. Quakenbush

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

June 3, 2014

KRIS R. CUMMINGS, Plaintiff,
DENNIS R. QUAKENBUSH, JULIE MIRAMONTI, MARK EPPERSON, HAMILTON COUNTY SHERIFF DEPARTMENT, and MARK J. BOWEN, in his official capacity as the Sheriff of Hamilton County, Defendants.



Presently pending before the Court are: (1) Defendant Mark Epperson's Motion for Summary Judgment, [Filing No. 85]; (2) Defendant Julie Miramonti's Motion for Summary Judgment, [Filing No. 89]; and (3) a Motion for Summary Judgment filed by Defendants Dennis Quakenbush, the Hamilton County Sheriff's Department, and Mark Bowen in his official capacity as the Sheriff of Hamilton County (collectively, "the Hamilton County Defendants"), [Filing No. 91].



A. Summary Judgment Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, 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.P. 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.P. 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.P. 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 in the grant of summary judgment. Fed.R.Civ.P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 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, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010). On cross-motions for summary judgment, the Court construes facts and draws inferences "in favor of the party against whom the motion under consideration is made." Keck Garrett & Associates, Inc. v. Nextel Communications, Inc., 517 F.3d 476, 483 (7th Cir. 2008) (quoting In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006)).

B. Mr. Cummings' Failure to Respond to the Motions

Before setting forth the factual background, the Court must first address Plaintiff Kris Cummings' failure to respond to the pending motions. Mr. Cummings sought several extensions of time to respond to the motions, and the Court granted several of those requests. [ See, e.g., Filing No. 105; Filing No. 106; Filing No. 112; Filing No. 117; Filing No. 119.] Specifically, Mr. Cummings moved for an extension of time to respond to the motions until March 18, 2014, which the Court granted. [Filing No. 105; Filing No. 106.] Shortly thereafter, the Court allowed Mr. Cummings' counsel to withdraw from this action. [Filing No. 112.]

On April 10, 2014, the Court cautioned Mr. Cummings that, while it was extending the March 18, 2014 deadline by forty-two days to April 29, 2014, that would be the last extension. [Filing No. 117.] The Court stated "so that there is no misunderstanding, the court here advises Mr. Cummings that it has already granted all extensions it is willing to provide." [Filing No. 117.] It also noted that it told Mr. Cummings it would allow another reasonable extension of the March 18, 2014 deadline " if the request is made by replacement counsel before the deadline has passed." [Filing No. 117 at 1 (emphasis in original).][1] On the April 29, 2014 deadline, Mr. Cummings' new counsel entered an appearance and filed a motion requesting an additional forty-five days to respond to the summary judgment motions. [Filing No. 119.] The Court denied that motion based, in part, on its earlier admonition that no further extensions would be granted. [Filing No. 124 at 2.] The Court also noted that Mr. Cummings had not referenced any efforts to obtain counsel between the withdrawal of his counsel on February 26, 2014 through the third extended response deadline of April 29, 2014. [Filing No. 124 at 2.]

The consequence of Mr. Cummings' failure to respond to the motions is that he concedes the Defendants' versions of events. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("[F]ailure to respond by the nonmovant as mandated by the local rules results in an admission"); See also Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 582 n.1 (7th Cir. 2011). The Court continues to apply the above articulated summary judgment standard, but Mr. Cummings' failure to comply with the Local Rules "reduc[es] the pool" from which the facts and inferences may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997). The Seventh Circuit has "repeatedly upheld the strict enforcement of these rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). Accordingly, the Court draws the factual background from the facts submitted by Defendants in their briefs, which Mr. Cummings has conceded are true by failing to timely respond.



The Court finds the following to be the undisputed facts, supported by admissible evidence in the record:[2]

A. The October 23, 2010 Arrest

On October 23, 2010, Deputy Sheriff Dennis Quakenbush, II, who was then a Sergeant and is presently a Captain with the Hamilton County Sheriff's Department, was on duty and was notified that Hamilton County Deputy Sheriff Ryan Horine had requested that a supervisor come to the scene of a residential fire. [Filing No. 92-2 at 2-4.] Deputy Horine stated that his police vehicle had been struck at the scene. [Filing No. 92-2 at 4.] Sergeant Quakenbush was the onduty supervisor that day, and began to drive to the fire scene. [Filing No. 92-2 at 4.] During the drive, Deputy Horine called Sergeant Quakenbush on his cell phone to explain the situation, and stated that Mr. Cummings had come to the scene of the fire, that Mr. Cummings had become belligerent and had yelled at Fire Chief Rick Russell, and that he then re-entered his vehicle and backed into Deputy Horine's police vehicle. [Filing No. 92-2 at 4.] Deputy Horine also told Sergeant Quakenbush that he thought Mr. Cummings was impaired, that he was "[l]ikely [on] prescription drugs, " and that "[i]t's Kris Cummings." [Filing No. 92-2 at 4.] When Sergeant Quakenbush responded that he did not know who Mr. Cummings was, Deputy Horine said "you might bring somebody with you." [Filing No. 92-2 at 4.] Sergeant Quakenbush enlisted Deputy Ryan Meier to assist him. [Filing No. 92-2 at 4.]

Upon arriving at the scene, Sergeant Quakenbush spoke with Deputy Horine who reiterated what he had told Sergeant Quakenbush over the phone. [Filing No. 92-2 at 4.] Deputy Horine told Sergeant Quakenbush he suspected Mr. Cummings was on narcotics, and noted that Mr. Cummings was sitting in his truck and had asked if he could pull up because the lights from the fire truck were bothering his eyes. [Filing No. 92-2 at 4.] Deputy Horine gave Sergeant Quakenbush Mr. Cummings' license and insurance information. [Filing No. 92-2 at 4.]

After speaking with Deputy Horine, Sergeant Quakenbush turned on the video camera in his police vehicle. [Filing No. 92-2 at 4.] He then walked up to the drivers' side of Mr. Cummings' vehicle and began to speak with him. [Filing No. 92-2 at 6.] Sergeant Quakenbush had undergone state and national drug recognition training and was certified as a Drug Recognition Expert. [Filing No. 92-2 at 6-7.] Specifically, his training included the evaluation of individuals who could be suffering from a seizure disorder, and included the observation that the signs and symptoms exhibited or experienced by such individuals can mimic what officers are looking for when evaluating potentially intoxicated drivers. [Filing No. 92-2 at 7-8.]

Sergeant Quakenbush observed that Mr. Cummings appeared to be slumped over and leaning against the driver's side window, that his pupils were constricted (which, if caused by drugs, Sergeant Quakenbush knew could only be caused by narcotics) that his movements were slow and sluggish, that his eyes were bloodshot, that his speech was very low and raspy, and that he was thick-tongued. [Filing No. 92-2 at 6.] Mr. Cummings also appeared to be uncoordinated and was very defensive. [Filing No. 92-2 at 6.]

Sergeant Quakenbush asked Mr. Cummings if he was alright, and asked for his registration. [Filing No. 84 at 10:01-10:02.][3] Sergeant Quakenbush also asked Mr. Cummings if he had any medical problems and Mr. Cummings responded that he had epilepsy and was affected by flashing lights. [Filing No. 84 at 10:02-10:03.] Mr. Cummings also stated that he took narcotics for severe head trauma he suffered in 1992, including Fentanyl, Morphine, Xanax, and Zoloft. [Filing No. 84 at 10:03-10:05.] Mr. Cummings then stated "arrest me, " and would not discuss his medical records or history any further. [Filing No. 92-3 at 10; Filing No. 84 at 10:05-10:06.]

Sergeant Quakenbush asked Mr. Cummings to get out of his car, and after he did so Mr. Cummings stated that he was agitated because he was on the verge of having an epileptic seizure, and that stress can cause him to have a seizure. [Filing No. 84 at 10:09.] Mr. Cummings stated that he needed to sit down, but when Sergeant Quakenbush told him to sit on the ground, he refused. [Filing No. 84 at 10:09-10:10.] Sergeant Quakenbush asked Mr. Cummings if he needed a medic, and Mr. Cummings said no, that "they can't do anything for my type of epilepsy." [Filing No. 84 at 10:10.]

Mr. Cummings stated that he would have difficulty passing a field sobriety test given his condition, but that he could walk in a straight line, that Sergeant Quakenbush could examine his eyes, and that Mr. Cummings would do the heel-to-toe walk and the one-leg stand. [Filing No. 84 at 10:11-10:12.] Mr. Cummings then underwent the field sobriety test and failed several aspects of it including balancing on one leg and the nine-step heel to toe and turn test. [Filing No. 84 at 10:14-10:25.] Sergeant Quakenbush then administered a portable breath test to Mr. Cummings to rule out alcohol intoxication, and the result came back at 0.00. [Filing No. 84 at 10:25-10:27.]

After Mr. Cummings failed the field sobriety test, Sergeant Quakenbush arrested him for Operating While Intoxicated and placed him in the back of the police vehicle to transport to Riverview Hospital ("Riverview") for a blood draw and a medical check before taking him to the Hamilton County Jail. [Filing No. 92-2 at 21.] Mr. Cummings then appeared to have some sort of episode while in the back of Sergeant Quakenbush's police vehicle prior to leaving the scene, where he was moving erratically while handcuffed and belted in. [Filing No. 84 at 10:29-10:30.] Sergeant Quakenbush requested a paramedic and Deputy Horine released Mr. Cummings' seat belt. [Filing No. 84 at 10:30.] When Sergeant Quakenbush asked Mr. Cummings if he was doing alright, Mr. Cummings responded that the handcuffs were too tight. [Filing No. 84 at 10:31.] Sergeant Quakenbush asked Mr. Cummings if he wanted a medic to check him out, and Mr. Cummings responded that they could not do anything and his ...

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