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Oliverio v. Butler University

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

May 2, 2017




         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants Butler University, Butler University Police Department, Anthony Rivera, Mark Crawn, Shawn Barks, and Butler University Police Officers (collectively, “Defendants”) (Filing No. 50). Following his arrest and dismissal of a case for battery against his girlfriend, Plaintiff Nicholas A. Oliverio (“Oliverio”) filed this action asserting a violation of his Fourth Amendment rights under 42 U.S.C. § 1983 and state law claims of false arrest, battery, and intentional infliction of emotional distress. The Defendants filed a Motion for Summary Judgment, asserting that probable cause existed for the arrest and qualified immunity applies thereby entitling them to summary judgment. For the following reasons, the Defendants' Motion is granted.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Oliverio as the non- moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         At the time relevant to the incident giving rise to this case, Oliverio was a Butler University student. His girlfriend, Kathryn Voelker (“Voelker”), was also a Butler University student. Defendant Officers Rivera, Crawn, and Barks were employed as law enforcement officers with the Butler University Police Department.

         Just before midnight on April 18, 2015, Oliverio and Voelker attended a house party near Butler University's campus. Before going to the party, Oliverio consumed one beer at home. Thereafter, he and Voelker walked about one mile to a house party. While at the party, Oliverio and Voelker each had one alcoholic beverage (Filing No. 52-1 at 5-6). They were in the basement at the house party, and Voelker was texting on her cell phone. She used her cell phone for about five to ten minutes, when Oliverio told Voelker, “two, maybe three times, ” to put the cell phone away Id. at 10. Oliverio was frustrated that his girlfriend was distracted by her cell phone. Voelker eventually put her cell phone away, but she was upset that Oliverio asked her to put it away, so she went upstairs and onto the porch of the house. Oliverio followed her out to the porch to talk about the situation. They talked for a few minutes while standing on the porch. Neither Oliverio nor Voelker raised their voices while in the basement or on the porch. Id. at 7-12.

         By the time they went onto the porch, it was the early morning hours of April 19, 2015. Voelker did not want to talk about the cell phone incident anymore, so she walked away, but Oliverio followed behind her down the street. Id. at 12. Oliverio was frustrated that Voelker could not understand that he wanted to be out together without being distracted by their cell phones. While following behind Voelker, Oliverio stopped walking for a moment to “take a deep breath” because he was getting more frustrated about her not understanding. Then he ran up to Voelker, asked her to stop, and grabbed her hand or wrist. Voelker quickly turned around and stopped walking when Oliverio grabbed her hand and asked her to stop, and she shouted, “What.” Id. at 13-15. Oliverio put his hands in the air, indicating that Voelker should stop and again asked her to stop. Oliverio did not, at this point, touch Voelker, but his hands were within inches of Voelker's chest. (Filing No. 52-2 at 2).

         Around this time, Officer Rivera and his former colleague, off-duty Indianapolis Metropolitan Police Department (“IMPD”) Officer Vincent Marshall, were patrolling the area by foot. They overheard an argument between a male and female nearby and followed the sound of the argument to investigate its source. As the officers got closer to the source of the argument, they turned down a street and observed Oliverio and Voelker at a nearby intersection that was illuminated by a streetlight (Filing No. 52-3 at 3-4, 6; Filing No. 52-5 at 3-4). As the officers approached Oliverio and Voelker, both Officer Rivera and Officer Marshall believe they saw Oliverio strike Voelker in the chest with an open hand causing her body to arch backward. Because of this, Officer Rivera immediately instructed Oliverio to put his hands behind his back, which he did without incident. Officer Rivera then handcuffed Oliverio without being physically rough (Filing No. 52-1 at 16-17; Filing No. 52-4 at 2; Filing No. 52-5 at 3-4).

         Voelker informed the officers that Oliverio had not done anything wrong and asked why they were arresting him. Officer Rivera explained that Oliverio was being arrested for battery, which he had just witnessed. Voelker explained that Oliverio had not battered her, that she understood what battery was, and that it had not happened. Voelker pleaded with Officer Rivera to not arrest Oliverio since he had not committed a battery against her. Officer Rivera explained to Voelker that he already called in the incident and requested a police vehicle, so it did not matter what she thought about the incident. They waited for approximately ten minutes for a police vehicle to arrive to transport Oliverio. During the wait, Voelker explained that Oliverio had done nothing wrong and should be released. Voelker also “came out and said that she cheated” on Oliverio as an explanation of what they were arguing about; however, this was not true (Filing No. 52-1 at 15). When the police vehicle arrived, Voelker again asserted that Oliverio should not be arrested and asked that she be permitted to go with him. The officers denied the request, and when Voelker persisted in her request to go with Oliverio, Officer Marshall suggested that they could arrest her for public intoxication if she really wanted to go with Oliverio (Filing No. 52-1 at 15; Filing No. 63 at 26, 28-29).

         Voelker explained to the officers that they were making a mistake and told them Oliverio was training for the Navy SEALS program. Officer Marshall told Oliverio that he “wasn't man enough and mentally ready” for the SEALS. Then one of the officers said to Voelker, “Do you know how hard it is to get into the Navy Seals? They drop like flies. If he goes in there with an attitude like the one he showed you, he won't last.” Officer Marshall then stated that Oliverio had choked Voelker, which drew an immediate response from Oliverio that he had not choked her. Voelker also denied that she had been choked (Filing No. 63 at 14, 16, 26, 28-29).

         Oliverio was transported from the arrest location to the Butler University police station by Officer Crawn. Oliverio acknowledged that there was no physical roughness when he was put in the police vehicle, and he did not sustain any injuries during his transport to the Butler University police station. Once at the station, Oliverio was placed in a holding cell while awaiting transfer to the Marion County arrestee processing center, and Officer Rivera completed the arrest paperwork. Oliverio waited in the holding cell for a couple of hours until IMPD transported him to the Marion County arrestee processing center (Filing No. 52-4 at 2; Filing No. 52-1 at 16-20).

         Voelker went to the Butler University Police Department the next day at 7:00 p.m. to talk to Officer Rivera about Oliverio's arrest. Voelker explains that, during this conversation, Officer Rivera told her that he heard Oliverio and Voelker arguing about a phone and then saw Oliverio grab her arm and then her neck or chest. Voelker responded to Officer Rivera that Oliverio had grabbed her hand to get her to stop walking away and to talk. In response, Officer Rivera explained that, because he saw a man put his hands on a woman, he had to report Oliverio, and if he had not filed a report and Voelker did file a report, then he would be in trouble and his job could be in jeopardy (Filing No. 63 at 29-30).

         Oliverio was in custody for approximately thirty-three hours. He was charged with battery and released. The Marion County Prosecutor's office declined to prosecute the matter, and the criminal case was dismissed on May 7, 2015 (Filing No. 63 at 18; Filing No. 64 at 8-9).

         Officer Barks had no involvement with Oliverio's arrest other than approving Officer Rivera's computer-generated report after the arrest. Officer Crawn had no involvement with Oliverio's arrest other than transporting Oliverio to the Butler University police station, which Oliverio admits involved no physical roughness or injury (Filing No. 52-3 at 7-9; Filing No. 52-1 at 16-17).

         Butler University investigated the incident, and on May 5, 2015, Butler University required Oliverio to attend a meeting with its Associate Director of Student Affairs, Martha Dziwlik (“Dziwlik”). This meeting was held only hours before Oliverio was scheduled to take a final exam. The meeting lasted approximately an hour and a half. Oliverio protested the timing of the meeting, but Dziwlik insisted it continue. On June 2, 2015, Dziwlik determined there was insufficient evidence to support the allegations and found that Oliverio had not violated Butler University policies. Dziwlik also explained that she believed Oliverio had an “argumentative temper” and recommended he seek counseling (Filing No. 63 at 21-22; Filing No. 64 at 10).

         On September 23, 2015, Oliverio filed this lawsuit against Butler University and its police officers in state court. He brought claims for false arrest, battery, and intentional infliction of emotional distress under state law and for violation of his Fourth Amendment rights under 42 U.S.C. § 1983. The Defendants then removed the action to this Court on October 15, 2015. On September 7, 2016, the Defendants filed their Motion for Summary Judgment.


         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 Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v., Inc., 476 F.3d 487, 489-90 (7th Cir. 2007).

         In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Zerante, 555 F.3d at 584 (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).


         The Defendants request summary judgment on each of Oliverio's claims on the bases that probable cause existed for Oliverio's arrest, qualified immunity protects Officer Rivera, Butler University does not have an unconstitutional policy or procedure that caused Oliverio's alleged injury, and Officers Crawn and Barks had no involvement in Oliverio's arrest. The Court will address each contention in turn.

         A. Probable Cause

         The primary argument advanced by the Defendants is that probable cause supported Oliverio's arrest, and thus, summary judgment is proper. The Defendants acknowledge that 42 U.S.C. § 1983 provides recourse for individuals who have experienced a violation of constitutional rights at the hands of state actors. The Defendants note that Oliverio has asserted a claim for violation of his Fourth Amendment rights when he was arrested allegedly without probable cause. But the Defendants assert that the undisputed evidence shows that Officer Rivera had probable cause to arrest Oliverio when he believed he witnessed Oliverio commit battery on Voelker in the presence of a police officer on April 19, 2015.

         The Defendants explain that “police have probable cause to arrest an individual when the facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense.” Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993) (citations and quotation marks omitted). As the Defendants explain, probable cause for an arrest is an objective standard with a subjective component because it requires that a reasonable officer in the same situation would believe the person arrested committed the offense. Thus, if a reasonable officer under the same circumstances would believe a crime was committed, the arrest is lawful even if the belief was mistaken and a crime had not actually been committed. Id. at 436.

         Looking to the circumstances of this case, the Defendants assert that an officer in Officer Rivera's position would reasonably believe Oliverio committed a battery upon Voelker. While on foot patrol in the area of a house party, Officer Rivera and Officer Marshall overheard Oliverio and Voelker having an argument, so they followed the sound to investigate its source. When the officers turned down a street, they noticed Oliverio and Voelker at a nearby intersection that was illuminated by a streetlight. As the officers approached Oliverio and Voelker, Officer Rivera and Officer Marshall believe they saw Oliverio strike Voelker in the chest with an open hand causing her body to arch backward. Both Officer Rivera and Officer Marshall believe they witnessed the same event and came to the same conclusion-that Oliverio committed battery on Voelker.

         The Defendants also argue that the undisputed evidence shows Oliverio “admits he chased after Voelker several times when she tried to walk away and grabbed her hand, which caused her to whip around to face him.” (Filing No. 51 at 8.) However, the designated evidence shows that this information was not within the officers' knowledge at the time of the arrest. Thus, this information cannot support probable cause.

         The Defendants summarize that, based on the totality of the circumstances (overhearing the couple's argument, observing Oliverio's hands within inches of Voelker's body, and observing Voelker's subsequent body movements), a reasonable officer in Officer Rivera's position would have believed Oliverio committed battery, giving rise to probable cause and justifying his arrest. They assert that whether Oliverio actually did strike Voelker is irrelevant because Officer Rivera honestly believed he witnessed Oliverio strike Voelker, and the probable cause determination allows some room for reasonable mistakes.

         Responding to the Defendants' argument about probable cause, Oliverio asserts that the question of probable cause must be answered by the jury “if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them, ” quoting Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008). Oliverio summarizes the facts and holding in the Chelios case and then points out the similarities to his case. Oliverio explains that there is a dispute about whether he actually struck Voelker, which forms the basis for his arrest. Then he asserts that based on the summary judgment standard, construing the facts in his favor, “no touching of Voelker's chest occurred, meaning no battery occurred, and therefore no probable ...

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