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Flores v. City of East Chicago

United States District Court, N.D. Indiana, Hammond Division

January 3, 2017

ERIBERTO FLORES, Plaintiff,
v.
CITY OF EAST CHICAGO, et al., Defendants.

          OPINION AND ORDER\

          PHILIP P. SIMON, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This is a civil rights case brought by Eriberto Flores under Section 1983 alleging First Amendment violations as well as wrongful arrest and excessive force. It is claimed by Mr. Flores that two of the defendants, City of East Chicago police officers Sam Maldonado and Garrick Manley, failed to intervene to prevent constitutional violations being committed by a third officer. Officers Maldonado and Manley now seek summary judgment. [DE 38.] Partial summary judgment is granted in part and denied in part. Because I find there is no evidence that Flores' protected speech was a motivating factor in his arrest, and because neither Maldonado nor Manley had a realistic opportunity to intervene to prevent the excessive force to Mr. Flores from occurring, partial summary judgment is granted as to Count I and the excessive force claim in Count II. However, because there is a triable issue of fact as to whether Maldonado and Manley failed to intervene in the alleged false arrest of Flores, summary judgment is denied as to the false arrest claim in Count II.

         Factual Background

         Flores tells me that he is a “well-known member and activist of the Concerned Citizens of East Chicago.” [DE 15 at 2.] One of the issues addressed by the Concerned Citizens is residential parking. On January 16, 2016, Flores contacted the East Chicago police dispatcher to report a parking violation in front of his house. A van was illegally parked on a handicap spot which Flores and his disabled mother regularly used. [DE 38-1 at 12.] But when no officer came to Flores' residence in response to the call, he and his friend, Ed Arambula, started to drive away. [DE 43 at 2-3.] As they were departing, Flores saw two police cars in a parking lot near his house on 148th Street and Magoun Avenue, so Flores stopped to chat. [DE 38-2 at 2.]

         The officers, Sam Maldonado and Garrick Manley, were parked side by side with their vehicles facing the opposite direction so they could communicate. [DE 43 at 3; DE 38-2 at 2.] Flores parked his car nearby and walked over to Maldonado and Manley; they remained seated in their cars. [DE 38-2 at 2.] Flores asked the officers about the status of his earlier call regarding the parking violation. [DE 39 at 2; DE 43 at 3; DE 38-1 at 19.] Maldonado responded with frustration: “Albert, why do you keep calling over the bullshit calls? Don't you think we have more important things to do?”and told Flores that he was “a pain in the ass.” [DE 38-2 at 2.] Arambula, who had remained in Flores' car about thirty yards away, described the conversation between Flores and the Officers-which he could see, but not hear-as follows: “they were laughing[] and - or at ease, and he was waving his hands, and it was just a normal conversation from what I observed.” [DE 38-3 at 58.]

         Flores then noticed a third police car allegedly driving the wrong way down Magoun Avenue, a one-way street, without any lights or sirens. [DE 38-2 at 2.] He saw the police vehicle brake hard, back up down the street, and pull into the parking lot where Flores, Maldonado, and Manley were talking. [Id.] Flores assumed the vehicle was there to observe the situation, so he turned back towards Maldonado to continue his conversation. [DE 38-1 at 19.] Suddenly and without warning, Flores felt handcuffs on his wrist and was pushed against the door of Maldonado's police car. [DE 38-2 at 2; DE 38-3 at 6.] His arms were twisted by the arresting officer behind his back and he was told to quit resisting. [DE 38-1 at 19; DE 38-3 at 6.] Flores then heard, “[You're] under arrest for disorderly conduct!” [DE 38-2 at 2] and was slammed against the trunk of the police car. [DE 38-1 at 19.]

         Although Flores was initially confused and didn't know who was arresting him, he soon learned that he was being arrested by Officer Arcuri, the East Chicago police officer who had happened upon the scene. [Id.] Flores is well familiar with Arcuri; they're cousins. [DE 38-2 at 2.] While attempting to place Flores into the police vehicle, Arcuri caused Flores' head to hit the door jamb at least two times, the second blow causing his hat to be knocked from his head. [DE 38-2 at 2-3; DE 38-4 at 1.] Flores called out to Arambula, who was still seated in Flores' vehicle. [DE 38-2 at 2; DE 38-4 at 1.] Flores and Arambula claim that after Flores yelled, Arcuri's demeanor changed; he was evidently surprised that there was a witness (Arambula) to the events. [DE 38-2 at 2-3; DE 38-3 at 7.]

         For the first time since the incident began, Maldonado and Manley exited their police cars. [DE 38-1 at 20; DE 38-4 at 1.] Flores asked Arambula to take his vehicle back to his house a half block away, but Arcuri ordered the vehicle to be impounded. [DE 38-2 at 3; DE 38-4 at 1.] Arcuri directed Manley to “get [Flores] out of here.” [DE 38-1 at 20.]

         There is a history of Flores calling the East Chicago police dispatcher to report parking ordinance violations. [DE 38-1 at 11-13; DE 38-2 at 2.] Admittedly, Flores called the police “more than a few times” about parking violations. [DE 38-1 at 21.] But Flores had difficulties getting the parking ordinance enforced in front of his house. [DE 38-1 at 11-13.]

         There is also a history of Arcuri harboring negative feelings towards Flores. [DE 38-1 at 11, 16.] Flores claims that other officers told him that Arcuri wanted him arrested. [DE 38-1 at 11.] Flores also states that relatives told him Arcuri hated Flores, and he didn't consider Flores a relative. [DE 38-1 at 16.]

         Flores' amended complaint [DE 15] is brought against Officers Arcuri, Maldonado and Manley, in their individual and official capacities. Flores alleges a violation of civil rights premised on First Amendment retaliation (Count I) and false arrest and excessive force (Count II). [DE 15.] Curiously, the amended complaint also includes a claim against Mark Becker, the East Chicago Chief of Police (in his individual and official capacities), although there appears to be no evidence that Becker was involved in the Flores arrest in any manner. The issue of Becker's involvement in this case can be sorted out at the Final Pretrial Conference, but for now the issue to be addressed is whether the claims against Maldonado and Manley, the two bystander officers, can proceed to trial with the case against Arcuri, who is bound for trial since he did not seek summary judgment in this matter.

         Discussion

         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 dispute 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). In response to the instant motion for summary judgment, Flores filed what he entitled “Plaintiff's Motion to Deny Defendants' Motion for Summary Judgment, ” which I construe as a response in opposition to the summary judgment motion.

         Count I - First ...


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