United States District Court, N.D. Indiana
OPINION AND ORDER
WILLIAM C. LEE, District Judge.
This matter is before the court on a motion for summary judgment filed by the defendant, Office Justin Lentz ("Officer Lentz" or "Lentz"), on March 5, 2014. The plaintiff, Stevan Lamley ("Lamley"), filed his response on May 14, 2014, to which Lentz replied on May 28, 2014.
Also before the court is a motion to strike brief, filed by Lentz on May 28, 2014, to which Lamley responded on May 29, 2014. Lentz declined to file a reply.
For the following reasons, both motions will be granted.
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 issue 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 precludes summary judgment, however, since "[o]nly disputes over facts that might affect the outcome of the suit under the governing law" warrant a trial. Id . To determine whether a genuine issue of material fact exists, the 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. Heft v. Moore , 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in its 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).
Lamley filed this action pursuant to 42 U.S.C. § 1983 alleging Lentz used excessive force during Lamley's arrest. Lamley is also pursuing a state law battery claim against Lentz. Lentz requests summary judgment on all claims.
The defendants present the following facts which are supported by the affidavits of Lentz and Greg Church, the Chief of Police for the Town of North Webster. On October 16, 2010, Officer Lentz, with the North Webster Police Department, was dispatched to the American Legion, 756 S. Main St., North Webster, Indiana, to investigate a hit/skip car crash. (Aff. of Lentz, ¶ 4, 5). When Officer Lentz arrived, he found a Silver Nissan Sentra and spoke with the car's owner, Craig Streby, who was an employee of the Legion. (Aff. of Lentz, ¶ 5). Craig stated that someone had witnessed a white truck hit his vehicle and leave the scene, and came inside to tell him. (Aff. of Lentz, ¶ 5). Craig advised that Dan Conkling was the witness and that Dan was inside. (Aff. of Lentz, ¶ 5).
After noting all the pertinent information from Craig's vehicle, Officer Lentz went to the front door where Dan Conkling and his wife, Becky, were waiting to speak with him. (Aff. of Lentz, ¶ 6). Dan and Becky Conkling stated that as they were pulling into the parking lot of the Legion, they saw a white Chevrolet pickup strike a silver car while backing up. (Aff. of Lentz, ¶ 6). They stated that after the white truck hit the other car, it pulled out as if to leave the parking lot, and sat for a moment at the exit to the lot. (Aff. of Lentz, ¶ 6).
The Conklings stated that before the white Chevrolet pulled onto Main Street to leave, they pulled around and noted the license plate of the pickup, which read: "In God We Trust YE38S2". (Aff. of Lentz, ¶ 7). They also stated that the white truck had some sort of rack on the back attached to the truck by the hitch. (Aff. of Lentz, ¶ 8). The rack was possibly for carrying deer. (Aff. of Lentz, ¶ 8).
Officer Lentz was advised by Dispatch that the license plate number he received from the Conklings was the same license plate Dispatch had received from the initial caller. (Aff. of Lentz, ¶ 9). The license plate belonged to a Stevan W. Lamley and Kim Chin, of Fort Wayne. (Aff. of Lentz, ¶ 9). Craig Streby also stated that he believed that the vehicle belonged to Steven W. Lamley with an address of 9378 Koher Rd, Syracuse, Indiana. (Aff. of Lentz, ¶10). Craig Streby advised Officer Lentz that Lamley was a member of the Legion Post in North Webster. (Aff. of Lentz, ¶10). Craig also provided Office Lentz with a phone number for Lamley and the address from the Legion's records. (Aff. of Lentz, ¶10).
After speaking with the witnesses and victim, Officer Lentz called Dispatch with that information, and advised them he was en route to the Koher Rd. address. (Aff. of Lentz, ¶11). Officer Lentz requested a Kosciusko County Sheriff's Department unit to go with him, as the people he spoke to at the Legion advised that Lamley was known to be "mouthy". (Aff. of Lentz, ¶11).
Deputy Terry Swoverland and Deputy Steve Cooper of the Kosciusko County Sheriff's Department met Officer Lentz near the address on Koher Rd. (Aff. of Lentz, ¶12, Aff. of Church, Exhibit "1"). The Officers then proceeded to 9378 E. Koher Rd. S., the residence of Stevan Lamley. (Aff. of Lentz, ¶12, Aff. of Church, Exhibit "1"). Upon arriving at the house, Officer Lentz noted a 1995 Chevrolet pickup, white, with a metal carrier rack attached to the rear of the truck, just as was described to him as the suspect vehicle. (Aff. of Lentz, ¶13).
Officer Lentz, along with Deputy Swoverland and Deputy Cooper, knocked on the front door of the house several times, but no one came to the door. (Aff. of Lentz, ¶14, Aff. of Church, Exhibit "1"). Officer Lentz could hear music coming from a detached garage, but he was unable to locate anyone at that building either. (Aff. of Lentz, ¶14).
Deputy Swoverland and Officer Lentz walked around the house to check the doors and windows to see if anyone was inside or at the back of the house. (Aff. of Lentz, ¶15, Aff. of Church, Exhibit "1"). When they got to a sliding glass door on the east side of the house, Officer Lentz knocked and heard a male subject inside yell to get the fuck off his property or he was going to shoot them. (Aff. of Lentz, ¶16, Aff. of Church, Exhibit "1"). Deputy Swoverland and Officer Lentz identified themselves as Police and Sheriff's department, and said they needed to talk to him outside. (Aff. of Lentz, ¶17, Aff. of Church, Exhibit "1"). The male subject again told them to get the fuck off his property or he was going to shoot them. (Aff. of Lentz, ¶17, Aff. of Church, Exhibit "1").
Officer Lentz notified dispatch that they had made contact with a subject from inside the house and that he was threatening them with violence. (Aff. of Lentz, ¶18, Aff. of Church, Exhibit "1"). Deputy Swoverland and Officer Lentz made their way back around to the front of the house, when Officer Lentz heard Deputy Cooper yelling "He's got a gun!" (Aff. of Lentz, ¶19, Aff. of Church, Exhibit "1"). Officer Lentz immediately took cover behind one of the Deputies' cars, which was parked in the roadway in front of the house, and notified dispatch that he had a subject with a gun at the scene. (Aff. of Lentz, ¶20). Officer Lentz could not see the subject at that time, due to trees in the yard, so he moved up behind his car, near Deputy Swoverland and Deputy Cooper. (Aff. of Lentz, ¶21, Aff. of Church, Exhibit "1").
From there, Officer Lentz observed an older male subject near the garage at the south west corner of the residence. (Aff. of Lentz, ¶22"). The male subject had a small metallic colored handgun in his hand and was stumbling around in the grass and the driveway. (Aff. of Lentz, ¶22). Officer Lentz, along with Deputy Swoverland and Deputy Cooper, ordered the subject to put the weapon down several times, but the subject did not follow the commands. The subject was holding the gun in his hand and walking around. (Aff. of Lentz, ¶23, Aff. of Church, Exhibit "1"). It appeared from the way the subject was walking that he was intoxicated. (Aff. of Lentz, ¶23, Aff. of Church, Exhibit "1").
At one point the suspect placed the weapon in his front pants pocket, and then turned his back toward the Officers. (Aff. of Lentz, ¶ 25). While his back was turned, Officer Lentz could see him move his hand back towards his pocket where the gun was. (Aff. of Lentz, ¶25). When he turned back towards the Officers, he removed the gun from his pocket, but did not point it at anyone. (Aff. of Lentz, ¶25). After several more times of being ordered to put down the weapon, the suspect did so, placing it on the railing of the porch on the house. (Aff. of Lentz, ¶26, Aff. of Church, Exhibit "1"). The suspect then moved a few steps away from the gun. (Aff. of Lentz, ¶26, Aff. of Church, Exhibit "1"). He was ordered to get on the ground, and to place his hands in the air. (Aff. of Lentz, ¶27, Aff. of Church, Exhibit "1").
Officer Lentz was unsure if the suspect had any other weapons on his person. (Aff. of Lentz, ¶28, Aff. of Church, Exhibit "1"). The Officers ordered him to the ground several more times, but the suspect did not make any attempt to follow their directions. (Aff. of Lentz, ¶28, Aff. of Church, Exhibit "1"). Officer Lentz holstered his firearm and drew his Taser from his belt. (Aff. of Lentz, ¶ 29). Officer Lentz moved from behind his car to within 10-15 feet of the suspect. (Aff. of Lentz, ¶ 29). Officer Lentz advised the subject that if he did not get down on the ground, he would deploy the Taser on him. (Aff. of Lentz, ¶ 29).
After several more attempts to get the suspect to obey his verbal commands, the suspect turned his back towards Officer Lentz. (Aff. of Lentz, ¶ 30). At that time, Officer Lentz deployed the Taser against the suspect, with the dart probes hitting him in the back, one between the shoulder blades, and one just above his waistband in his lower back. (Aff. of Lentz, ¶ 31). When the probes made contact, the suspect locked up, and when the device shut off after 5 seconds, Officer Lentz grabbed the suspect by the arm and lowered him to the ground to avoid any injury from falling. (Aff. of Lentz, ¶ 32, Aff. of Church, Exhibit "2").
After the suspect was on the ground, Deputy Cooper came up and handcuffed the suspect (Aff. of Lentz, ¶ 33, Aff. of Church, Exhibit "1"). Officer Lentz advised Dispatch of the Taser deployment and requested medics to make the scene to check the suspect. (Aff. of Lentz, ¶ 33). Once the suspect was secured, and searched for other weapons, Officer Lentz asked him for his name, which he stated was Stevan Lamley. (Aff. of Lentz, ¶ 34). It was evident that Lamley had been drinking due to his speech and very strong odor of alcoholic beverages on his breath. (Aff. of Lentz, ¶ 35).
Officer Lentz read Lamley his Miranda rights and he declined to answer any questions. (Aff. of Lentz, ¶ 36). Lamley then became very belligerent and verbally abusive. (Aff. of Lentz, ¶ 37). He threatened the Officers with legal action, stating they did not have permission to be on his property, and that he had a friend who was a Federal Judge. (Aff. of Lentz, ¶ 38). He asked several times why the Officers were there and they explained to him that they were investigating a hit and run accident at the American Legion in North Webster. (Aff. of Lentz, ¶ 37).
The Deputies secured the pistol which Lamley was carrying. (Aff. of Lentz, ¶ 38, Aff. of Church, Exhibit "1"). It was an AMT Back-Up.380 caliber that was loaded with a round in the chamber. (Aff. of Lentz, ¶ 38, Aff. of Church, Exhibit "1"). Deputy Cooper also corroborated Lentz's testimony that when Lamley exited the house Lamley was waving the gun around and pointing it in Cooper's direction.. (Aff. of Lentz, ¶ 39, Aff. of Church, Exhibit "1").
While medics were checking Lamley, Officer Lentz went back to Lamley's pickup truck and observed silver paint transfer from the vehicle he struck on the metal carrier rack attached to his pickup. (Aff. of Lentz, ¶ 40). The paint transfer was photographed for evidence. (Aff. of Lentz, ¶ 40).
Officer Lentz was then advised that the Officers needed to secure any other weapons in the house for safekeeping. (Aff. of Lentz, ¶ 41). Lamley stated there were a few more shotguns in the closet. (Aff. of Lentz, ¶ 41). Other officers went inside the house to clear it for any other weapons. (Aff. of Lentz, ¶ 41, Aff. of Church, Exhibit "1"). Located in the house were a Ruger 10/22 rifle, a muzzle loader rifle, and two Remington shotguns. (Aff. of Lentz, ¶ 41, Aff. of Church, Exhibit "1"). All were removed from the house and transported to the Sheriff's Dept. to be secured, along with the pistol Lamley was carrying. (Aff. of Lentz, ¶ 41, Aff. of Church, Exhibit "1").
In his response brief Lamley recites a slightly different version of events, as follows. On October 16th 2010 (Lamley Dep. p. 54), Lamley drank a couple of beers at his sister's and one or two at the Legion ( Id. 66), and then he went home and drank a bottle of Jack Daniels. ( Id. 66-67). Lamley was sitting in his living room and heard someone trying to get in so he snuck around to another window and saw someone behind his house in black pants, a black shirt and a gun in his hand. ( Id. 70-71.) Lamley jumped up and grabbed a gun. ( Id. 73.) He went out the front door and saw Lentz with a gun in his hand, and did not see anything which would indicate that Lentz was a police officer. ( Id. 4.) Lamley and Lentz were pointing their guns at each other ( Id. 76). Lamley did not believe Lentz was a police officer. ( Id. 83.) Eventually, Lentz talked Lamley into putting down his gun. ( Id. 84.) Lentz identified himself as an Officer from Webster. ( Id. 88.) Lentz asked Lamley to put his gun down and Lamley complied. ( Id. 89.) Lamley put the gun on the railing, moved toward the edge of the garage, and then Lentz came up behind him ( Id. 93.) Lamley complied with Lentz's commands and put his hands up and away from his body. ( Id. 94.) Officer Lentz Tased Lamley once and then gave him a second shot and Lamley collapsed and hit his head on the concrete and started bleeding. ( Id. 94.) Lamley had his hands in the air when he got shot in the shoulder by the Taser. ( Id. 96.) Lamley was bleeding from his mouth, nose, eye, and ear and he had a wound on his head. ( Id. 102-03.) Lamley further contends that Lentz hit him with a baton in the back before he Tased him. ( Id. 154-55).
Before getting to the merits of the motion for summary judgment the court will resolve the motion to strike. Lentz first asserts that Lamley's testimony that his "hands were up" must be stricken. In the "Statement of Genuine Dispute" section of Lamley's response, he cites to deposition testimony in which Lamley claims he had his hands in the air prior to allegedly being struck by Officer Lentz. Lentz argues that this evidence is inadmissible for several reasons. First, this information is not based upon the Lamley's personal knowledge. Rather, he obtained this information from his neighbor, making the statement hearsay. Second, Lamley's testimony is inconsistent. "[A] party cannot defeat summary judgment by having a witness contradict her own prior deposition testimony." Paton v. MFS/Sun Life Financial Distributors, Inc., 480 F.3d 478, 488 (C.A.7 2007), citing Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 759 (C.A.7 2006). Indiana law recognizes that a change in testimony, in light of a pending motion for summary judgment, may be a ruse; however, in some situations the change is plausible. Id. ...