United States District Court, N.D. Indiana, Hammond Division
ELIAN M. SHEPHERD, Plaintiff,
TOWN OF MERRILLVILLE, INDIANA; J. MERKEL and N. SCHROCK, individually and in their capacity as Merrillville Police Officers; Defendants.
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, District Judge.
Plaintiff has sued Defendants under 42 U.S.C. § 1983 as well as on several state law claims. This matter is before the Court on Defendants' motion for summary judgment (DE 86). Also before the Court are two motions to strike filed by Plaintiff (DE 91 and DE 99) and a motion to strike filed by Defendants (DE 94).
On December 18, 2009, Defendants Joseph Merkel and Nathan Schrock, both Merrillville, Indiana, police officers, arrested the Plaintiff, Dr. Elian Shepherd, outside an entrance to Methodist Hospital in Merrillville, where he is a staff member, for disorderly conduct and resisting law enforcement. Plaintiff sued both officers and the Town of Merrillville under 42 U.S.C. § 1983, claiming his arrest was without probable cause and in retaliation for his speech and that the officers used excessive force to arrest him; and under state law, claiming that the officers' conduct constitutes false arrest, false imprisonment, battery, and intentional infliction of emotional distress ("IIED"). Plaintiff also sued Defendant Merkel for IIED for an incident that occurred after Plaintiff filed his original complaint, when Plaintiff and Merkel were traveling back to Merrillville on U.S. 30 at the same time after having attended depositions in Valparaiso, Indiana.
Defendants maintain that there was probable cause to arrest Plaintiff for both disorderly conduct and resisting law enforcement and their use of force was reasonable, or, alternatively, the officers are entitled to qualified immunity. They also contend that Plaintiff has no § 1983 claim against the Town, and that Plaintiff fails to state a claim against Merkel for IIED.
B. Summary Judgment Standard
A motion for summary judgment must be granted "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). All the evidence must be construed in the light most favorable to the non-moving party. Feliberty v. Kemper Corp., 98 F.3d 274, 277 (7th Cir. 1996). A court may not make credibility determinations, weight the evidence, or decide which inferences to draw from the facts. Rather, a court's task is to decide on the basis of the evidence of record, whether there is any material dispute of fact that requires a trial. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
The undisputed facts are as follows: Plaintiff was riding with his daughter, Amanda, in her vehicle when he received a call from Methodist Hospital about a patient. Amanda drove him to the hospital so he could attend to the patient. She parked in the fire lane outside the entrance to the hospital. As they were leaving the vehicle to enter the hospital, Plaintiff spoke with a hospital security guard, Adam Dolan. They left the vehicle in the fire lane and entered the hospital. When they came out of the hospital after Plaintiff had attended to his patient and returned to Amanda's vehicle, Defendants Merkel and Schrock were present and were preparing a citation for parking in the fire lane. Dolan was also present. Schrock, on being told by Plaintiff that he, and not his daughter, had been driving, asked to see Plaintiff's driver's license. After looking at the license, Schrock went to his vehicle. Plaintiff spoke to Dolan. Merkel approached Plaintiff and told him to stop talking to Dolan.
Plaintiff's interaction with Merkel and Schrock was recorded on a hospital surveillance video without audio. The video shows that while Schrock was in his vehicle, Merkel walked up to Plaintiff and put his face very close to his. Plaintiff turned and started walking away. Merkel held his left arm momentarily. Plaintiff turned away again. Merkel took hold of his left arm again. Merkel then turned him around and attempted to handcuff him. At that moment, still in his vehicle, Schrock looked up and saw Merkel's interaction with Plaintiff. Schrock joined Merkel and together they placed Plaintiff against Amanda's vehicle and succeeded in handcuffing him. Merkel led Plaintiff to his squad car and took him to the Lake County Jail. He was charged with disorderly conduct and resisting law enforcement.
While the above facts are not in dispute, many other details of the incident are contested. In Merkel's probable cause affidavit he stated that Plaintiff was "disorderly after being told to quiet down and continued to use profanity and talk or yell in a boisterous manner and use abusive language." (Pl. Ex. 2, DE 92, at 4). Plaintiff asserts that when he talked to Dolan he raised his voice a little bit but did not use profanity and did not yell. Moreover, he states that when Merkel told him to stop talking to Dolan and be quiet, he complied. Plaintiff maintains that he never heard Merkel tell him he was under arrest. He attempted to walk away from Merkel but Merkel grabbed him to continue their conversation. He claims that he did not resist the officers, but simply twisted away in pain when Merkel grabbed his arm and twisted it behind his back.
In Defendants' account, Plaintiff refused to be quiet and continued to yell at Dolan. Merkel ordered Plaintiff to stop talking or he would be arrested. When Plaintiff refused to comply, Merkel told him he was under arrest and must turn around. When Plaintiff turned to walk away, Merkel grabbed his arm and struggled with him to effectuate the arrest. As this was happening, Schrock looked up from what he was doing in his squad car, saw the struggle, and came to assist Merkel.
With regard to the incident on U.S. 30, Plaintiff explains that Merkel attended Plaintiff's deposition on November 15, 2012, in Valparaiso in full uniform with a visible firearm. After Plaintiff's counsel objected, he removed the firearm and his uniform shirt. During the deposition, Plaintiff testified about his fear of police officers since the Methodist Hospital incident. Merkel heard this testimony. When Plaintiff left the law office following the deposition, he saw Merkel by his squad car. Plaintiff left quickly, wanting to avoid Merkel. At some point on his journey west on U.S. 30, Plaintiff, driving in the left lane, noticed that Merkel was several cars behind him in the same lane. They traveled in the same lane for a mile or two. Plaintiff then moved to the right lane. The cars that had been between Merkel and Plaintiff passed Plaintiff. However, Merkel did not pass Plaintiff but remained a few feet ...