United States District Court, S.D. Indiana, Indianapolis Division
DUSTIN H. CARMACK, Individually and as Administrator of the Estate of Kimberlee Jo Carmack, Plaintiff,
CITY OF INDIANAPOLIS, acting by and through its Metropolitan Police Department; RICK HITE, Individually and in his Official Capacity as Chief of Police, SCOTT ROBINETTE,  Individually; and BRIAN MAHONE, Individually, Defendants.
ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY
RICHARDX. YOUNG, JUDGE
action arises out of a series of events that led to the
tragic murder of Indianapolis Metropolitan Police Officer
Kimberlee Carmack and the suicide of her ex-husband, IMPD
Officer Ryan Anders, on April 17, 2014. Plaintiff, Dustin
Carmack, is Officer Carmack's son. He brings this action
under 42 U.S.C. § 1983 on his own behalf and as Personal
Representative of the Estate of Kimberlee Jo Carmack against
the Defendants herein-the City of Indianapolis, acting by and
through the Indianapolis Metropolitan Police Department
(“IMPD”), Chief of Police Rick Hite, Deputy Chief
of Police Brian Mahone (“Deputy Chief Mahone” or
“Chief Mahone”), and Lieutenant Scott
Robinett-alleging they violated Officer Carmack's
Fourteenth Amendment due process rights and committed the
state law torts of negligence and intentional infliction of
emotional distress claims. On June 17, 2016, Lt. Robinett
filed a motion for summary judgment on all claims asserted in
the Second Amended Complaint. On June 24, 2016, the City,
Chief Hite, and Chief Mahone filed a motion for summary
judgment on those same claims. For the reasons explained
below, both motions are GRANTED.
and Anders married on October 11, 2010, and the couple
divorced three years later on October 23, 2013. (Filing No.
69, Second Amended Complaint ¶ 12). Anders did not
handle the separation well. (Filing No. 88-1, Deposition of
Dustin Carmack (“Carmack Dep.”) at 62-64). He
called Carmack “50 to 60 times a day, ”
[s]how[ed] up on her police runs, ” and “was just
being a nuisance trying to get her back.” (Id.
February 17, 2014, problems in their relationship escalated
when Anders pursued Carmack in his marked police car. (Filing
No. 97-3, Probable Cause Affidavit at 4). Carmack thought she
had lost him, and stopped in a parking lot. (Id.).
Anders then pulled up and screamed, “why didn't you
fucking stop?” (Id.). As Carmack attempted to
back out, Anders stuck his foot under her tire, resulting in
her driving over his foot. (Id.). The next day, IMPD
Lt. Jim Tharp informed Chief Mahone that there were
“domestic problems” between Carmack and Anders,
and that Carmack “has possibly hit [Anders] with a car
or ran over his foot.” (Mahone Dep. at 12-13). Chief
Mahone forwarded the information to IMPD's Special
Investigations Unit (“SIU”) to initiate a
criminal investigation into the allegations. (Id. at
13). He then brought Carmack and Anders into his office
separately, told them that IMPD was investigating a possible
domestic situation, and informed them that they were to have
no contact with each other during the investigation.
(Id. at 13-14). At this point, the matter was in the
hands of Commander David Robinson to determine how it would
be investigated by SIU. (Id. at 17).
Sgt. John Green was initially assigned to investigate the
domestic problems between Carmack and Anders. (Filing No.
88-4, Portions of Sgt. Green's Investigatory File, Bates
Nos. 3844-47). He contacted Carmack multiple times for an
interview on February 19, 20, and 21. (Id. at
3844-45). She refused to cooperate despite being assured that
she was not the target of any potential criminal charges.
(Id. at 3845). Carmack told Sgt. Green that she
wished to avoid potential embarrassment from the
investigation and “did not wish for Sgt. Ryan Anders to
be criminally charged or disciplined.” (Id. at
3847). Anders also refused to cooperate in the investigation.
(Id. at 3845). Because Sgt. Green “did not
have any witnesses available . . . that witnessed the
incident or incidents that have occurred between Officer
Anders and her ex-husband Sgt. Ryan Anders, ” SIU's
criminal investigation was terminated. (Id.
Robinson transferred the investigation to Sgt. Judy Phillips
with internal affairs “to investigate from the
administrative end.” (Filing No. 88-5, Deposition of
David Robinson (“Robinson Dep.”). The internal
affairs unit “investigates allegations of
administrative misconduct, ” which includes crimes
committed by officers. (Id. at 14-15).
continued to see Anders despite the no-contact order. (Filing
No. 86-5, Deposition of Kimberley McGivern (“McGivern
Dep.”) at 20). When Chief Mahone learned of the
continued contact between Carmack and Anders on March 12,
2014, he placed both of them on administrative leave. (Mahone
Dep. at 23). In doing so, he suspended their police powers
and temporarily removed their department-issued firearms,
vehicles, identification, and badges. (Id. at 27-32,
59-60). The decision followed an internal determination that
“there was something to” the domestic disturbance
on February 17, 2014. (Id. at 26-27).
administrative assignment, Carmack was detailed to the
Professional Development and Officer Wellness unit. (Robinson
Dep. at 21). That unit assists officers “who are going
through problems, [it] kind of point[s] them in the right
direction, [and] give[s] them assistance.”
(Id.). During her assignment, Carmack worked closely
with Officer Kimberley McGivern. (Id. at 21-22).
told Officer McGivern that she feared she would lose her job
because she violated the no-contact order. (McGivern Dep. at
19). Carmack admitted she contacted Anders because “she
had no choice . . . the day she stop[ped] seeing him,  he
would kill her.” (Id. at 20). She also
disclosed that she continued to have sex with him because he
threatened to post nude pictures of her to the entire IMPD
and to expose her use of anxiety medication-a fact she had
not disclosed to her medical liaison. (Id.).
Domestic Violence Investigation
after Carmack's assignment to the Professional
Development unit, Officer McGivern contacted domestic
violence Det. Shani Anderson to see if she would speak with
Carmack about the abuse. (Filing No. 88-3, Deposition of
Shani Anderson (“Anderson Dep.”) at 21). Det.
Anderson interviewed Carmack and quickly initiated a criminal
investigation into the alleged domestic violence. (Robinson
Dep. at 24). Commander Robinson oversaw her investigation,
providing Det. Anderson resources when they were available,
but he did not “manag[e] the investigation.”
(Id. at 24-25). Det. Anderson's mission was to
investigate the allegations against Anders with an open mind,
and then determine whether there was “merit and
probable cause for charges.” (Anderson Dep. at 30).
March 26, 2014, Det. Anderson began her investigation with a
five-hour interview of Carmack. (Id. at 73; Filing
No. 97-2, Timeline at Bates No. 4334). Within a week of
beginning the investigation, Det. Anderson believed there was
probable cause to support charges of stalking, rape, battery,
and residential entry against Anders. (Anderson Dep. at 31).
On March 28, she obtained a search warrant to place a GPS
device on Anders' car as a means to track Anders'
whereabouts and to provide a warning to Carmack if he
“went within so many miles of her residence, the
academy, downtown, those kinds of things.”
(Id.; Timeline at Bates No. 4335; Filing No. 88-7,
Search Warrant at Bates Nos. 1183-93). Between April 8 and
15, 2014, the Marion Superior Court issued several search
warrants requested by Det. Anderson to search Anders'
house, person, car, electronics, cellular telephone, and
other property for evidence of stalking and
intimidation. (Filing No. 88-7, Search Warrants).
Det. Anderson's efforts to keep the investigation quiet
and confidential, Sgt. Green told Anders that Det. Anderson
was investigating him. (Anderson Dep. at 65).
Det. Anderson's chief objectives was to keep Carmack safe
from Anders. At Det. Anderson's suggestion, Carmack
obtained a protective order with the assistance of attorneys
from the Julian Center. (Id. at 29). Det. Anderson
did not want Carmack to stay at her house during the
investigation because Anders knew of its location. She
therefore enlisted Carmack's friend, Terri Veach,
“to take her from place to place, ” including
hotels, making sure not to “keep her too long at one
place.” (Id. at 42). Det. Anderson was in
contact with Carmack several times a day every day.
(Id. at 44). Carmack cooperated with Det.
Anderson's efforts to keep her safe, but when she
returned to work after her temporary assignment to the
Professional Development unit, she went home alone
“[t]oo many times” against her advice, including
the day she was murdered. (Id. at 43-45).
Discovery of the GPS Unit
Robinett knew Anders because he had worked with Anders'
father, uncle, and aunt, all of whom were law enforcement
employees with the Marion County Sheriff's Department.
(Filing No. 86-1, Affidavit of Scott Robinett
(“Robinett Aff.”) ¶ 4). At no time did Lt.
Robinett have supervisory responsibilities over Carmack or
Anders. (Id. ¶ 5).
nine months prior to the tragedy, Anders began to stop by Lt.
Robinett's part-time job at the Olive Garden restaurant
to talk. (Filing No. 88-9, Deposition of Scott Robinett
(“Robinett Dep.”) at 24-25). Anders'
relationship with Carmack would come up in these private
conversations, which resulted in Lt. Robinett telling Anders
“hundreds of times” to leave her alone.
(Id. at 34).
ten days before Carmack's murder, Lt. Robinett received a
phone call at home and while off-duty from Anders asking to
meet “at a church parking lot close to [Robinett's]
house.” (Id. at 50, 53; Timeline at Bates No.
4335). Lt. Robinett agreed. When he pulled into the parking
lot, he discovered Anders “kind of kneeling down behind
the trunk of the vehicle that he was driving.”
(Robinett Dep. at 50). Anders pointed to a device that was
sitting on his bumper and asked Lt. Robinett if it was a GPS
unit. (Id. at 51). He replied that it looked like a
GPS unit. (Id.). Lt. Robinett “didn't
really give [the matter] much thought because [he] wasn't
sure who put [the GPS] on [Anders' car], when it had been
placed on there and why it was placed on there and for what
purpose.” (Id. at 55). He then told Anders to
“leave her . . . alone and leave it alone and to
contact his attorney.” (Id. at 52). Anders
took two pictures of the GPS unit and placed it back on the
bumper of the car. (Id.). At that point, Lt.
Robinett drove back home. (Id. at 53).
Robinett did not report to anyone at IMPD about Anders'
discovery of the GPS device on his vehicle because he
“had no idea that [Anders] was a subject of a criminal
investigation.” (Id. at 56-57). Det. Anderson
interviewed Lt. Robinett on April 16, 2014, the night before
Carmack's murder, due to the number of phone calls she
discovered between him and Anders. (Anderson Dep. at 54). She
testified that Lt. Robinett understood that Anders was the
target of the investigation. (Id. at 55).
Nevertheless, Lt. Robinett did not tell Det. Anderson or
anyone else that Anders had discovered the GPS device.
(Id. at 56).
April 17, 2014, Carmack went home to pick up clothes.
(Id. at 57). Video surveillance footage from a
neighbor's house showed that Anders had been waiting a
few houses down from Carmack's in his grandmother's
vehicle. (Filing No. 88-10, Deposition of Leslie Vanbuskirk
(“Vanbuskirk Dep.”) at 19-20). He arrived
undetected because that car did not have a GPS device on it.
(Id. at 26). He fired one shot through the back
sliding glass door, saw Carmack near the back door, and
pursued her through the kitchen. (Filing No. 98-3,
Inter-Department Communication from Det. VanBuskirk). Anders
shot Carmack several times and then inserted the pistol into
his mouth and pulled the trigger. (Id.). It was
later discovered that Carmack brought her personal firearm
with her to the house, but she left the weapon in her car
when she entered the house. (Carmack Dep. at 17-18).
knows whether Anders knew Carmack would be at the house that
morning. (Anderson Dep. at 58; Vanbuskirk Dep. at 19, 21).
Moreover, Det. Leslie Vanbuskirk uncovered no evidence in the
subsequent homicide investigation that someone inside IMPD
tipped off Anders that Carmack would be at the house on April
17, 2014. (Vanbuskirk Dep. at 30).
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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation omitted). 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 citation omitted).
factual issue is material only if resolving it 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 that
party. Anderson, 477 U.S. at 255.
Federal Due Process Claims
Second Amended Complaint, Plaintiff alleges Chief Hite, Chief
Mahone, and Lt. Robinett violated Officer Carmack's
substantive due process right to bodily integrity by failing
to protect her from Anders. His claim is brought pursuant to
Section 1983. To state a claim for relief under Section 1983,
a plaintiff must allege (1) the deprivation of a right
secured by the Constitution or the laws of the United States
which (2) was ...