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Carmack v. City of Indianapolis

United States District Court, S.D. Indiana, Indianapolis Division

January 17, 2017

DUSTIN H. CARMACK, Individually and as Administrator of the Estate of Kimberlee Jo Carmack, Plaintiff,
v.
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, [1] Individually; and BRIAN MAHONE, Individually, Defendants.

          ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          RICHARDX. YOUNG, JUDGE

         This 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[2] 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.

         I. Background

         Carmack 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. at 64).

         A. Criminal Investigation

         On 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).

         B. SIU Investigation

         SIU 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. at 3847).

         Commander 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).

         C. Administrative Duty

         Carmack 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).

         For her 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).

         Carmack 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.).

         D. Domestic Violence Investigation

         Shortly 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).

         On 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.[3] (Filing No. 88-7, Search Warrants).

         Despite 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).

         One of 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).

         E. Discovery of the GPS Unit

         Lt. 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).

         About 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).

         Approximately 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).

         Lt. 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).

         F. The Murder-Suicide

         On 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).

         No one 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).

         II. Summary Judgment Standard

         The 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).

         A 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.

         III. Discussion

         A. Federal Due Process Claims

         In his 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 ...


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