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Marshall v. Town of Merrillville

United States District Court, N.D. Indiana

January 11, 2017

TOWN OF MERRILLVILLE, OFFICER ALLISON ELLIS, individually and in her official capacity, and OFFICER TIMOTHY FINNERTY, individually and in his official capacity, Defendants.



         This matter comes before the Court on Defendants Town of Merrillville, Officer Allison Ellis, and Officer Timothy Finnerty's Motion for Summary Judgment [ECF No. 60] and Motion to Bar Opinions and Testimony [ECF No. 62]. The Plaintiffs, David Marshall, III, and LaMisa Marshall, filed a state court Complaint [ECF No. 1] on January 23, 2014, alleging claims under 42 U.S.C. § 1983 and state tort law, which was removed to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. This matter is fully briefed and ripe for the Court's review.


         On June 5, 2013, the Plaintiffs attended their daughter's graduation ceremony for Merrillville High School. The ceremony was held in the auditorium of the Radisson Theater in Merrillville, Indiana. The Plaintiffs attended with a large number of family members[1] and sat in two adjacent rows in the middle section of the first floor. There were some rows of people seated behind the Plaintiffs' party. The graduation ceremony began with the singing of the national anthem. Once the national anthem concluded, someone shouted something in the auditorium. The Defendant Officers approached the Plaintiffs' party, discussed that disturbance with them, escorted the Plaintiffs out of the auditorium, and did not permit David Marshall to return to the ceremony. Although the parties agree on this bigger picture, they dispute most of its details.

         A. The Plaintiffs' Version of Events

         David Marshall was seated in the first row of Plaintiffs' party on the end of that row, with LaMisa Marshall seated to his left. (D. Marshall Dep. 9:22.) Seated in the row directly behind them were Lawrence and Michelle Thurmond. (Id. at 12:1.) While the national anthem was going on, David Marshall and Lawrence were trying to locate the latter's daughter on stage (who was also graduating), eventually “pointing out that both . . . daughters were sitting next to each other.” (Id. at 12:7-14.) At the national anthem's conclusion, “a lady's voice yelled out and said ‘BoBo Ducy' or something like that, really loud, just out of nowhere.” (L. Marshall Dep. 6:17- 22, ECF No. 61-2.) The person who yelled that “was in back of” the Plaintiffs' party (D. Marshall Dep. 11:3-4), although the Plaintiffs “didn't know who was yelling” (Id. at 14:1).

         Immediately thereafter, Officer Ellis came over to the Plaintiffs' party because she believed that they were the source of the yelling. (Id. at 12:21-13:1.) Officer Ellis singled out Michelle as the yeller and “told Michelle to shut up.” (Id. at 12:11-17.) All of the members in the Plaintiffs' party “told [Officer Ellis] that we were not the ones yelling.” (Id. at 12:21-22.) Additionally, David Marshall “identified [him]self as a police officer with [his] ID, ” as did Lawrence. (Id. at 11:19-23.) The Defendant Officers were members of the Merrillville Police Department, whereas David Marshall was a detective with the Lake County Sheriff's Office. (D. Marshall Dep. 6:2-3.) Lawrence was also a police officer, but the parties did not specify for which municipal entity he worked. As the Plaintiffs' party tried to explain to Officer Ellis that they were not the source of the disturbance and were not making any noise, “several other Merrillville officers came” over to them in “a very short amount of time.” (Id. at 13:4-12.) “They were argumentative, and they would not let [the Plaintiffs' party] explain what was going on. One of the officers . . . even slapped down [David Marshall's] cousin's hands.” (Id. at 14:13- 16.)

         After just a minute elapsed, Sergeant Finnerty approached and said “let's go outside and talk about it” to the Plaintiffs. (Id. at 15:7-8.) The police officers kept pushing both of the Plaintiffs until they were outside of the auditorium and its lobby. (Id. at 15:16-23, 16:6-14.) Once the Plaintiffs were outside, Sergeant Finnerty said that if David Marshall “continued to talk, ” he would “be going to jail for disorderly conduct.” (Id. at 16:23-24.) David Marshall said, “You all know me as a police officer. Why are you treating me as if I'm not a police officer, that I would be disruptive?” (Id. at 17:5-7.) He was upset but remained peaceful throughout this interaction, calling his sergeant to get his advice and try to resolve the situation, but Sergeant Finnerty “said again if [he] was to keep on talking that [he'd] be going to [his] own jail.” (Id. at 17:7-9, 18:2-6.) LaMisa Marshall was “kept outside the building about five minutes” after talking with some of the officers. (L. Marshall Dep. 10:2-3.) Ultimately, LaMisa Marshall was permitted to go back inside, while David Marshall was not arrested or charged but was barred from returning to the auditorium for the remainder of the ceremony. (Id. at 10:6-11.)

         B. The Defendants' Version of Events

         The Defendant Officers were acting as security at the graduation ceremony. (Town Interrog. No. 6, ECF No. 61-6.) Officer Ellis “was facing the stage” when she “heard somebody screaming ‘Juicy, ' a couple times.” (Ellis Dep. 17:15, 33:6, ECF No. 61-3.) Once she “turned around the yelling had stopped.” (Id. at 33:10-11.) However, Officer Ellis “observed a female[2]waving her arms in the air” who was seated in the area where “David Marshall was seated immediately after hearing somebody screaming ‘Juicy.' [Officer Ellis] went over to speak with her” in order to tell her “that she needed to lower her voice and stop yelling or she'd be asked to leave.” (Id. at 17:16-21.) When Officer Ellis walked up to talk to that woman, “[t]he male sitting directly to the right of her and the male sitting directly in front of him[3] began yelling at me that it wasn't her that was screaming.” (Id. at 18:2-5.)

         At that point, Officer Ellis said “[t]hen just be quiet. Then I just need you guys to lower your voice and stop arguing. Just be quiet.” (Id. at 18:7-8.) But David Marshall said, “No. I will not be quiet.” (Id. at 18:19.) After Officer Ellis had spoken to Michelle Thurmond, “[David Marshall] was approximately four inches from [her] face saying that I had the wrong person.” (Id. at 35:21-23.)[4] Officer Ellis “believed at the time [she] had the right person. But when they were arguing with [her], ” she began to have doubts that she had the right person. (Id. at 18:10- 11.) While Officer Ellis attempted to quiet the Plaintiffs' party, at least four other police officers arrived, including Sergeant Finnerty, having “heard a male's voice screaming.” (Finnerty Dep. 23:8, 23:16-17.) That voice turned out to be David Marshall's, whom the police officers “tried to get” to be quiet, because by that point “Mr. Thurmond had quieted down.” (Ellis Dep. at 18:21- 24; Ellis Answers Interrog. No. 9, ECF No. 61-7.)

         Because David Marshall “would not be quiet . . . he was asked to leave the auditorium.” (Ellis Dep. at 19:1-2.)[5] The Defendant Officers “did not see anybody put their hands on [the Plaintiffs]” as they were escorted out of the auditorium. (Id. at 19:7-13.) Once they were outside, “Mr. Marshall was arguing that he wanted to go back inside. He tried to say that we knew him.” (Id. at 37:18-20.) However, Sergeant Finnerty decided that David Marshall could not come back in “[b]ecause he was loud, he caused a disturbance, it was apparent that he was not going to calm down, it was apparent that he was going to continue with his actions.” (Finnerty Dep. 28:5-8.)[6]Sergeant Finnerty threatened “to take [David Marshall] to his own jail, ” but ultimately chose not to arrest him “[b]ecause he was a policeman” and did not make a police report because he made no arrest. (Id. at 33:4-15.) Even once David Marshall had calmed down somewhat, Sergeant Finnerty “did not let him go back into that graduation” because “he'd already committed [disorderly conduct].” (Id. at 30:17-22.) However, because no one “had instructed [LaMisa Marshall] to leave in the first place, ” Sergeant Finnerty “allowed her to go back in.” (Ellis Dep. 20:6-10.)


         On January 23, 2014, the Plaintiffs filed a Complaint [ECF No. 1] against the Defendant Officers and the Town of Merrillville. In Count I, they alleged that the Defendants violated the Plaintiffs' right to peaceably assemble “[b]y forcing Plaintiffs out of their daughter's graduation without just cause, ” in violation of 42 U.S.C. § 1983. (Compl. ¶ 33, ECF No. 1.) In Count II, A: When [David Marshall] was instructed to leave, before he left he said “Okay, then. I they alleged that the Defendants committed the tort of intentional infliction of emotional distress by “intentionally extreme and outrageous conduct of . . . forcibly removing Plaintiffs from their daughter's graduation.” (Id. ¶ 34.) In Count III, they alleged that the Town of Merrillville breached its duty to the Plaintiffs to hire and retain employee police officers who were qualified and properly trained which the Town breached by hiring and retaining [the Defendant Officers] proximately causing Plaintiffs' injuries at their daughter's graduation” and failed to do so. (Id. ¶ 35.)

         The Complaint was removed to federal court on February 14, 2014. The Defendants filed an Answer with Affirmative Defenses [ECF No. 10] on March 24, 2014. After discovery, the Defendants filed two Motions on September 21, 2015. The first was a Motion to Bar the Testimony of the Plaintiffs' Expert Witness, to which the Plaintiffs' Response [ECF No. 64] was filed on October 6, 2015, and the Defendants' Reply [ECF No. 70] on November 2, 2015. The second was a Motion for Summary Judgment, to which the Plaintiffs Response [ECF No. 67] was filed on October 21, 2015, and the Defendants' Reply [ECF No. 71] on November 2, 2015.


         A. Motion for Summary Judgment

         The Court has subject-matter jurisdiction over the Plaintiffs' § 1983 claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the Plaintiffs' remaining state law claims pursuant to 28 U.S.C. § 1367. The Court's analysis of the Defendants' Motion for Summary Judgment does not consider the opinions and testimony of the Plaintiffs' expert, Joseph R. Blaettler, as they are unnecessary for the Court to render its ruling. The Defendant's Motion to Bar Mr. Blaettler's Opinions and Testimony is addressed below.

         1. Standard of Review

         Summary judgment is warranted when “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). Summary judgment is the moment in litigation where the nonmoving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in that party's favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court should only deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); then citing Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir. 2010)). A court's role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. [A] court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid “the temptation to decide which party's version of the facts is more likely true, ” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

         2. Standing

         The Defendants challenge LaMisa Marshall's standing in this case. Standing is a constitutional requirement for which a Plaintiff must show (1) “injury in fact, ” which is an invasion of a legally protected interest that is either “concrete and particularized” or “actual and imminent, ” rather than conjectural or hypothetical; a (2) causal connection such that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and (3) that it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A party must assert their own interests and may not assert those of a third party. Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999).

         The Defendants argue that LaMisa Marshall did not suffer an injury-in-fact because the police did not require her to come outside with David Marshall, and she was able to return to the auditorium after only five minutes of being out with the police. With regard to the first contention, the Plaintiffs have offered evidence showing that LaMisa believed she was required to follow the police outside. The fact that there were at least four police officers confronting her husband in a quiet auditorium and asking him to leave shows that she believed that she had no choice but to follow him. If LaMisa had no choice, then she would have suffered an injury-in-fact because the police would have deprived her of her interest in remaining at the ceremony. With regard to the second contention, the Court believes that the five minute timespan that LaMisa was barred from the auditorium does not render her legally protected interest ...

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