United States District Court, N.D. Indiana
OPINION AND ORDER
William C. Lee, Judge.
matter is before the court on a motion for summary judgment
filed by the defendant, Lorenzo Davis (“Davis”),
on December 12, 2016. The plaintiff, Michael Dwayne English
(“English”), proceeding pro se, filed
his response on January 3, 2017, to which Davis replied on
January 12, 2017.
before the court is a motion to strike portions of
English's Declaration, filed by Davis on January 12,
2017. English has not responded to the motion to strike.
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 issue 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). Not every
dispute between the parties precludes summary judgment,
however, since “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law”
warrant a trial. Id. To determine whether a genuine
issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable inferences in that party's favor.
Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A
party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the
court with the evidence she contends will prove her
case.” Goodman v. Nat'l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
February 24, 2015, English filed a pro se prisoner
complaint against Davis, a Gary police officer, and the City
of Gary. [DE 1] On March 12, 2015, the case was dismissed
without prejudice. On March 26, 2015, the court vacated the
dismissal order and provided English up until April 30, 2015
in which to file an amended complaint. [DE 11].
April 30, 2015, English filed an Amended Pro Se Prisoner
Complaint against Davis, the Gary Police Department, the City
of Gary and Prosecutor Monica Rogina. [DE 14]. English
claimed that he was denied due process because Davis
allegedly maliciously coerced Tatiana Gant to testify that
English was involved in a murder that occurred on June 15,
Amended Complaint also alleges theories of relief which
include the following: violation of 42 U.S.C. §1983;
failure to protect and prevent (by inadequate training);
malicious prosecution; malicious process; abuse of process;
negligence; intentional and negligent infliction of emotional
distress; false arrest; false imprisonment; defamation of
character; professional misconduct; cruel and unusual
punishment; and various constitutional violations. English
correctly alleged that Davis was a Gary Police officer.
However, English did not file a Tort Claims Notice as
required by I.C. 34-13-3-8. On May 4, 2015, the court
dismissed claims against all the other Defendants, but
allowed English's case to proceed against Davis. On May
2, 2016, Davis filed an answer with the court. [DE 40]
Amended Complaint alleged that on January 31, 2013, Davis
charged him with murder related to an offense that took place
on June 6, 2005, but that he was never mentioned as a suspect
in the offense. The Gary Police reports produced to English
in discovery show that two Gary police officers, Detective
Nielsen and Davis, arrested English on an active Tippecanoe
County Warrant, and an active Lake County Warrant for murder.
The warrant was issued by Judge Stefaniak, of Lake County.
claimed that Davis was “malevolent” towards
English for personal reasons and that Davis coached and
coerced Tatiana Gant to give false testimony and/or a
statement. On September 9, 2016, Davis served a Request for
Production of Documents on English. Davis requested English
to produce the following: (1) Any and all documents that
support that Ms. T. Gant confessed to being coached or
coerced by Lorenzo Davis; (2) Any and all documents that
support any contention that Defendant, Lorenzo Davis engaged
in witness tampering; and (3) Any and all documents relating
to or supporting any of the factual allegations contained in
date, English has not responded to Davis' request to
produce documents to support the allegations made in his
Amended Complaint. In contrast, Davis has responded to
discovery served by English and has provided the following
information under oath: (1) The FBI and the Gary Police
Department were involved in English's case and no one
advised Davis to stop his investigation of English nor was he
cited for any ethics violations; (2) Davis has been involved
in more than 200 murder cases and all of his arrests have
been with probable cause; (3) Davis had probable cause to
arrest English; (4) Davis does not make the decision whether
to prosecute an individual after being charged; (5) The
arrest of English was with probable cause and Davis does not
know English personally; and (6) Davis was not aware of what
English was exposed to while in the Lake County Jail.
support of his motion for summary judgment, Davis first
argues that English's state law claims are barred because
he failed to comply with the Indiana Tort Claims Act as well
as the applicable two-year statute of limitations for tort
claims. Under Indiana law, a tort claim against a political
subdivision is barred unless notice is filed with the
governing body of the political subdivision and the
subdivision's risk management commission within 180 days
after the loss occurs. VanValkenburg v. Warner, 602
N.E.2d 1046 (Ind.Ct.App. 1992); See I.C. 34-13-3-8.
The Notice of Tort Claim requirement applies not only to
political subdivisions, but also to employees of political
subdivisions as well. VanValkenburg, 602 N.E.2d at
1048. Furthermore, an action for injury to a person or
character must be commenced within two years after the cause
of action accrues. See I.C. 34-11-2-4.
present case, English's Amended Complaint is based on an
arrest by Davis that occurred on January 31, 2013. Davis
arrested English in his capacity as a police officer for the
Gary Police Department. Like in the VanValkenburg
case, the Notice of Tort Claim requirements would not only
apply to the City of Gary, but to its employees - i.e.
Officer Davis. Davis argues ...