United States District Court, N.D. Indiana, Hammond Division
RAGEN H. HATCHER, Plaintiff,
GARY COMMUNITY SCHOOL CORPORATION, Defendant.
OPINION AND ORDER
R. CHERRY, MAGISTRATE JUDGE
matter is before the Court on a Motion for Summary Judgment
[DE 84], filed by Defendant Gary Community School Corporation
on July 1, 2016, and a Motion to Strike Affidavit of Judy
Cherry, Exhibit 3 and 4 and Portions of Plaintiff's
Response Brief [DE 92], filed by Defendant on August 8, 2016.
For the reasons set forth below, the Court grants the Motion
for Summary Judgment on the § 1983 federal
constitutional claims and relinquishes its jurisdiction over
the Indiana state law claims of breach of contract and
tortious interference with a contract.
September 30, 2013, Plaintiff Regan H. Hatcher filed a
Complaint against Defendant Gary Community School Corporation
and the School Board of the Gary Community School
Corporation. On June 11, 2014, Judge Robert L. Miller, Jr.
issued an Opinion and Order, granting in part and denying in
part the Defendants' Motion to Dismiss the Complaint.
August 7, 2014, the parties orally agreed on the record to
have this case assigned to a United States Magistrate Judge
to conduct all further proceedings and to order the entry of
a final judgment in this case. Therefore, this Court has
jurisdiction to decide this case pursuant to 28 U.S.C. §
extensive proceedings to correct errors in Plaintiff's
attempts to file an amended complaint, on March 27, 2015,
Plaintiff filed a First Amended Complaint against Defendant
Gary Community School Corporation only, alleging claims of
breach of contract (Count I), tortious interference with a
contract (Count II), deprivation of her due process and equal
protection rights under the Fourteenth Amendment to the
United States Constitution brought under 42 U.S.C. §
1983 (Count III), and deprivation of her rights of freedom of
expression and freedom of speech under the First Amendment to
the United States Constitution brought under 42 U.S.C. §
1983 (Count IV). Plaintiff attached four exhibits-an Attorney
Employment Agreement for the period of June 13, 2006, through
June 30, 2007 (Ex. 1), the August 8, 2014 Affidavit of Judy
Cherry (Ex. 2), a December 22, 2008 letter from the President
of the Board of School Trustees of the Gary Community School
Corporation (Ex. 3), and a January 29, 2010 letter from the
President of the Board of School Trustees of the Gary
Community School Corporation (Ex. 4).
April 17, 2015, Defendant filed a Motion to Dismiss the First
Amended Complaint, which the Court granted in part and denied
in part on October 22, 2015, dismissing Plaintiff's equal
protection claim in Count III for failure to state a claim.
1, 2016, Defendant filed the instant Motion for Summary
Judgment on Plaintiff's remaining claims. Plaintiff filed
a response on July 23, 2016, attaching the same four exhibits
that she attached to her First Amended Complaint. On August
8, 2016, Defendant filed a reply in support of summary
judgment and the Motion to Strike. Plaintiff filed a response
to the Motion to Strike on August 20, 2016.
Motion to Strike, Defendant argues that Plaintiff's
Exhibit 2, the Affidavit of Judy Cherry (no relation to the
undersigned), offered in support of her opposition to summary
judgment, should be stricken from the record pursuant to
Federal Rule of Civil Procedure 56(c)(4) because it is not
made on her personal knowledge and is not signed under the
penalties of perjury. Although there is no explicit statement
that the Affidavit is based on personal knowledge, personal
knowledge can be inferred from the content of the Affidavit
in this instance. See Wine & Canvas Dev., LLC v.
Roberts, No. 1:12-CV-1752, 2013 WL 1099895, at *2 (S.D.
Ind. Mar. 15, 2013) (citing Credentials Plus, LLC v.
Calderone, 230 F.Supp.2d 890, 904-05 (N.D. Ind. 2002);
11 Moore's Fed. Practice § 56.14[c] (Matthew
Bender 3d ed. 2002)). Also, the Affidavit is sworn (and
signed and sealed by a notary public); thus, the Affidavit
need not comply with the requirements of 28 U.S.C. §
1746 for unsworn declarations. The Court denies the Motion to
Strike Judy Cherry's Affidavit. The Court denies as moot
the remainder of the Motion to Strike because Exhibits 3 and
4 are unnecessary for the Court's ruling on summary
Federal Rules of Civil Procedure require that a motion for
summary judgment 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). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “Summary
judgment is appropriate when no material fact is disputed and
the moving parties are entitled to judgment as a matter of
law, meaning that no reasonable jury could find for the other
party based on the evidence in the record.” Carman
v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
seeking summary judgment bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The
moving party may discharge its initial responsibility by
simply “‘showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325; see also Spierer v.
Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the
nonmoving party would have the burden of proof at trial, the
moving party is not required to support its motion with
affidavits or other similar materials negating the
opponent's claim. Celotex, 477 U.S. at 323, 325;
Spierer, 798 F.3d at 507-08; Modrowski v.
Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
the moving party puts forth evidence showing the absence of a
genuine dispute of material fact, the burden shifts to the
non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by
merely resting on its pleadings. See Fed. R. Civ. P.
56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d
764, 769 (7th Cir. 2015) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving
party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails
to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may . . . consider the ...