United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY
RICHARD L. YOUNG, CHIEF JUDGE
early evening hours of August 25, 2013, Plaintiff, Kevin
Mardis, was arrested by Officer Zach Elliot and Officer Nick
Snow for battery on a police officer. After the prosecutor
declined to file formal charges, Plaintiff brought the
present action under 42 U.S.C. § 1983 (“Section
1983”) against Officer Elliot, Officer Snow, and
Officer Jeremy Roll, who was also at the scene, alleging
various violations of his Fourth Amendment rights. Plaintiff
also brings state law claims for trespass, battery, and false
imprisonment against Officer Elliot, Officer Snow, Officer
Roll, and the Town of Bargersville. Defendants now move for
summary judgment. For the reasons set forth below,
Defendants' Motion for Summary Judgment is GRANTED in
part and DENIED in part.
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
August 25, 2013, at approximately 1:00 p.m., Plaintiff, his
then girlfriend (now wife), Amanda Oakes Mardis, and
Amanda's young son, L.L., went to a cookout at a
friend's home for about four or five hours. (Filing No.
32-1, Deposition of Kevin Mardis (“Plaintiff
Dep.”) at 9; Filing No. 32-2, Deposition of Amanda
Mardis (“Mardis Dep.”) at 7-8). While there,
Plaintiff had approximately six to eight beers. (Plaintiff
Dep. at 7-9).
way home from the cookout, L.L. told Amanda he wanted to go
to his grandfather's (David Barrickman) house.
(Id. at 8; Filing No. 32-3, Deposition of L.L.
(“L.L. Dep.”) at 6). Amanda said no, Plaintiff
said yes, and an argument ensued. (Mardis Dep. at 8-9; L.L.
Dep. at 6-7). Unbeknownst to Amanda and Plaintiff, L.L.
called his great-grandfather, John Barrickman,
“[b]ecause they [Amanda and Plaintiff] were arguing and
fighting and [he] wasn't used to that, so [he] wanted to
leave.” (Id. at 7). John apparently heard the
commotion over the phone and called 911. (Id.;
Mardis Dep. at 12; Plaintiff Dep. at 11). He reported that
Plaintiff was trying to put Amanda in the dryer and that
Plaintiff was drunk and fighting. (Filing No. 24-1, Affidavit
of Judd Green, Ex. A - radio traffic).
minutes after the three arrived home, Amanda received a call
from 911 asking her “if everything was okay, that they
had had a call of a domestic dispute.” (Mardis Dep. at
13-14). During the call, Officer Elliot entered the driveway
in his police vehicle. (Id. at 14). Amanda knew
Officer Elliot personally, and told him “everything was
fine, there was no issue.” (Id.). Around this
time, Officer Snow and Officer Roll arrived. (Filing No.
32-8, Deposition of Zachary Elliot (“Elliot
Dep.”) at 14). The Officers described Amanda as very
upset. (Id. at 14; Filing No. 32-10, Deposition of
Nicholas Snow (“Snow Dep.”) at 16; Filing No.
32-9, Deposition of Jeremy Roll (“Roll Dep.”) at
Elliot asked where Plaintiff was; Amanda indicated that he
was inside the house on the couch and to “come
in.” (Snow Dep. at 16; see also Elliot Dep. at
14 (“As [Amanda] walks in, I follow her, and she points
to the male on the couch.”). According to the
Complaint, all three Officers followed Amanda inside the
house “without invitation or cause to do so.”
(Filing No. 1, Complaint ¶ 18). Officer Elliot testified
that Plaintiff was “argumentative, he's loud,
he's yelling profanities at me, he's asking me why
I'm in his house.” (Elliot Dep. at 16; see
also Snow Dep. at 17 (testifying Plaintiff was
uncooperative and had his “fists balled up”)).
Plaintiff did not admit to being argumentative, but he
testified to saying, “if there's nothing you guys
are arresting me for, I didn't do anything wrong, you
need to get off my property and there's no reason to talk
to me.” (Plaintiff Dep. at 16). He “was, you
know, getting frustrated.” (Id.).
Roll asked Amanda to step outside to talk. (Roll Dep. at 27;
Snow Dep. at 17). Amanda began arguing with Officer Roll in
the front yard because “[she] was fine, there was no
reason for them to be there.” (Mardis Dep. at 17). John
and David (Amanda's father) arrived in a minivan to pick
up L.L. (Filing No. 32-4, Deposition of David Barrickman at
6-7; Filing No. 32-9, Roll Dep. at 25). Amanda turned her
anger towards John, telling him, “[T]his was ridiculous
and why did you call ?” (Mardis Dep. at 18; Roll
Dep. at 25). At that point, Officer Snow left the house to
assist Officer Roll. (Snow Dep. at 18). Amanda would not stop
yelling and increased her volume of voice. (Roll Dep. at 32;
Snow Dep. at 18; Plaintiff Dep. at 17; Filing No. 32-11,
Affidavit of Probable Cause). Officer Roll then placed Amanda
under arrest for disorderly conduct. (Roll Dep. at 32;
Affidavit of Probable Cause).
Officer Elliot stepped onto the front porch to see what was
going on outside. (Elliot Dep. at 17). He claims Plaintiff
stepped onto the porch, directly in front of him, for about
fifteen or twenty seconds. (Id. at 17, 24; see
also Snow Dep. (testifying Plaintiff stepped onto the
porch, “I guess to see whoever was in the
vehicle”). Plaintiff claims he remained inside the
house with the door cracked open because “it was going
all bad out there [and] [he] didn't want to get
arrested.” (Plaintiff Dep. at 17-18; Plaintiff Aff.
¶ 2). According to Plaintiff, Officer Elliot “kept
saying, you know, you need to let us inside to talk to you
and we need to talk.” (Plaintiff Dep. at 15). Plaintiff
informed him that “there was nothing to talk about,
” he “didn't do anything wrong, ” and
he “didn't know what this was even about.”
(Id. at 15, 16).
to Officer Elliot and Officer Snow, Plaintiff turned around
and “quickly [went] into . . . his residence.”
(Elliot Dep. at 24; Snow Dep. at 19). Officer Elliot
“instinctively” followed him into the house
because he didn't “know what he was going into the
house for, [didn't] know if there [was] weapons, anything
else.” (Id. at 25). As he stepped onto the
threshold of the door, Plaintiff tried to shut the door.
(Elliot Dep. at 25; Plaintiff Dep. at 18). Plaintiff
“had no idea that [Officer Elliot's] foot was in
the door.” (Plaintiff Dep. at 18; Plaintiff Aff. ¶
6). Plaintiff “appl[ied] pressure to the door, ”
trapping Officer Elliot's left foot between the threshold
of the door and the door frame. (Plaintiff Dep. at 18; Elliot
Dep. at 25). At this juncture, Officer Snow returned to the
porch to assist Officer Elliot. (Snow Dep. at 19). Once
Officer Elliot freed his foot, Plaintiff tried to shut the
door again, but “they kicked the door right
open.” (Plaintiff Dep. at 19). The corner of the door
hit Plaintiff's right eyebrow, causing it to bleed.
(Id.; Elliot Dep. at 39; Snow Dep. at 20). Officer
Elliot and Officer Snow placed Plaintiff under arrest for
battery on a police officer, handcuffed him, and placed him
in a police vehicle. (Elliot Dep. at 39-40; Snow Dep. at 20).
Elliot contacted the local EMS to provide treatment for the
cut over Plaintiff's right eye. (Elliot Dep. at 39). When
the ambulance arrived, Officer Elliot and Officer Snow took
Plaintiff to the vehicle for treatment. (Id.;
Plaintiff Dep. at 19-20). Plaintiff was uncooperative with
EMS personnel. (Plaintiff Dep. at 21-22). He would not get
into the ambulance, but was seated on the back of the
ambulance as the EMS personnel attempted to treat the cut and
assess any other injuries. (Id. at 20-21).
Plaintiff was being treated, Amanda, who was seated in the
back of Officer Roll's vehicle a short distance away from
the ambulance, managed to get one hand free of the handcuffs
and was pounding on the window of the vehicle. (Roll Dep. at
46-47). Officer Roll opened the back door of his vehicle,
placed Amanda back in the handcuffs and double-locked the
handcuffs. (Id. at 47). At this point Plaintiff got
up from his seat on the ambulance and appeared to be charging
toward Officer Roll. (Id.; Snow Dep. at 22). Officer
Snow took Plaintiff to the ground, and with the assistance of
Officer Roll, picked him up off the ground and returned him
to the ambulance. (Snow Dep. at 22-23). Plaintiff's
testimony differs; according to him, as he “went to get
down from the ambulance, one of them put his foot in front of
my leg and the other one grabbed my cuffs and threw me over
the other and I went straight on my face.” (Plaintiff
Dep. at 21). Plaintiff then asked them to pick him up.
this time, Amanda's father, David, took L.L. home with
him. (Mardis Dep. at 23; Affidavit of Probable Cause).
charges were never filed against Plaintiff. (Plaintiff Dep.
at 27). The disorderly conduct charge against Amanda was
later dropped. (Mardis Dep. at 21).
Summary Judgment Standard
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
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 in favor of the
non-moving party. Anderson, 477 U.S. at 255;
Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th
Cir. 2005) (reversing summary judgment for defendant in
excessive force case).
Federal Law Claims
brings three Fourth Amendment claims against the Officers. In
Count I, Plaintiff alleges the “Defendant Officers
unlawfully entered Plaintiff's residence.”
(Complaint ¶ 48). In Count II, Plaintiff alleges the
“Defendant Officers illegally arrested Plaintiff after
battering him.” (Id. ¶ 54). And in Count
III, Plaintiff alleges the “Defendant Officers
employed, or allowed to be employed, excessive and
unreasonable force against Plaintiff.” (Id.
¶ 59). Plaintiff's Fourth Amendment claims are
brought under Section 1983. That statutory section provides a
private cause of action against a person who, acting under
color of state law, deprives an individual of any
“‘rights, privileges, or immunities secured by
the Constitution and laws'” of the United States.
Livadas v. Bradshaw, 512 U.S. 107, 132 (1994)
(quoting 42 U.S.C. § 1983). “Section 1983 is not
itself a source of any substantive rights, but instead
provides the means by which rights conferred elsewhere may be
enforced.” Bublitz v. Cottey, 327 F.3d 485,
488 (7th Cir. 2003).
Fourth Amendment issues presented surround Plaintiff's
arrest. The Officers argue that summary judgment is warranted
because: (1) they did not violate Plaintiff's Fourth
Amendment rights and, alternatively, (2) they are entitled to
determination of qualified immunity must be made early in the
litigation, as “[q]ualified immunity is ‘an
entitlement not to stand trial or face the other burdens of
litigation.'” Saucier v. Katz, 533 U.S.
194, 200 (2001) (quoting Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)). “Qualified immunity balances two
important interests-the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). It
“gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions.
When properly applied, it protects ‘all but the plainly
incompetent or those who knowingly violate the
law.'” Ashcroft v. al-Kidd, 563 U.S. 731,
743 (2011) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)). In evaluating qualified immunity, the court
considers two questions: “(1) whether the facts, taken
in the light most favorable to the plaintiff, make out a
violation of a constitutional right, and (2) whether that
constitutional right was clearly established at the time of
the alleged violation.” Williams v. City of
Chicago, 733 F.3d 749, 758 (7th Cir. 2013) (citing
Pearson, 555 U.S. at 232). The court has discretion
to determine in which order the questions should be answered;
“a negative answer to either one is enough to establish
the defense of qualified immunity.” Hanes v.
Zurick, 578 F.3d 491, 493 (7th Cir. 2009).
Count II, False Arrest
deemed reasonable under the Fourth Amendment, a warrantless
arrest (a type of “seizure”) made in public must
be supported by probable cause. Gutierrez v. Kermon,
722 F.3d 1003, 1007 (7th Cir. 2013). Thus, the existence of
probable cause is an absolute defense to a Section 1983 claim
of false arrest. Id. (citing Mustafa v. City of
Chicago, 442 F.3d 544, 547 (7th Cir. 2006)).
cause to arrest exists when an officer reasonably believes,
in light of the facts and circumstances within the knowledge
of the arresting officer at the time of the arrest, that the
suspect had committed or was committing an offense. Beck
v. Ohio, 379 U.S. 89, 91 (1964); Gutierrez, 722
F.3d at 1008. The test is an objective one, which evaluates
whether probable cause existed “‘on the facts as
they would have appeared to a reasonable police officer in
the position of the arresting police officer-seeing what he
saw, hearing what he heard.'” Kelley v.
Milar, 149 F.3d 641, 646 (7th Cir. 1998) (quoting
Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir.
1992)). “[P]robable cause does not require a finding
that it was more likely than not that the arrestee was
engaged in criminal activity-the officer's belief that
the arrestee was committing a crime need only be
reasonable.” Abbott v. Sangamon Cty., Ill.,
705 F.3d 706, 714 (7th Cir. 2013). “It is a practical,
commonsense standard that requires only the type of fair
probability on which reasonable people act.”
Gutierrez, 722 F.3d at 1008. To prevail, the
Officers must establish, as a matter of law, that they had
probable cause to arrest Plaintiff for “any
crime, regardless of the officer's belief as to which
crime was at issue.” See Abbott, 705 F.3d at
715. The existence of probable cause depends on the elements
of the predicate criminal offense under state law.
noted above, Officer Elliot, with the assistance of Officer
Snow, arrested Plaintiff for the crime of battery on a police
officer. In this Section 1983 action, the Officers also claim
they had probable cause to arrest Plaintiff for resisting law
Battery on a Police Officer
time the events in this case transpired, the knowing and
intentional touching of a police officer in a rude, insolent,
or angry manner was battery on a public servant, a Class A
misdemeanor. Ind. Code § 35-42-2-1. Officer Elliot
testified that as Plaintiff was shutting the door, he
simultaneously tried to enter Plaintiff's home. Plaintiff
had “no idea” Officer Elliot's foot was on
the threshold of the door. (Plaintiff Aff. ¶ 6). When he
was unable to close the door, he “kind of appl[ied]
pressure to the door.” (Plaintiff Dep. at 18).
According to Plaintiff, he “wasn't putting enough
pressure to do anything.” (Id. at 19). It is
not clear from the record whether ...