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Zander v. Orlich

United States District Court, N.D. Indiana, Hammond Division

May 25, 2017




         This matter is before the Court on Defendant Samuel Orlich Jr.'s Motion for Summary Judgment [DE 63], filed on December 30, 2016. For the reasons stated below, the motion is denied.


         Plaintiff Rebecca Zander initiated this cause of action on November 3, 2014, by filing a Complaint. With the Court's leave, Zander filed an Amended Complaint on June 23, 2015. In the Amended Complaint, Zander brings claims against Samuel Orlich, Jr. in his individual and official capacities, John Buncich, and Lake County, Indiana.

         On December 23, 2016, an agreed Motion to Dismiss was filed as to Zander's claims against Orlich in his official capacity. The Court granted that Motion on January 3, 2017.

         On January 10, 2017, an agreed Motion to Dismiss was filed as to Zander's claims against Lake County, Indiana. The Court granted that motion on January 11, 2017.

         On December 20, 2016, Orlich filed the instant Motion for Summary Judgment along with a brief in support of the motion. Zander filed a response on January 27, 2017. Orlich filed a reply on February 9, 2017. The motion is ripe and ready for ruling.

         Buncich filed a separate Motion for Summary Judgment on December 28, 2016. That motion remains pending.

         Zander and Orlich orally agreed on the record and Buncich filed a form of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).


         The Federal Rules of Civil Procedure require that a motion for summary judgment be granted “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). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).

         A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The moving party may discharge its initial responsibility by simply “‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08; Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).

         “Once the moving party puts forth evidence showing the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e); see also Anderson, 477 U.S. at 248-50.

         In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765 (7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.


         On September 19, 2013, Orlich was working as a deputy for the Lake County Sheriff's Department (LCSD). He was wearing his LCSD uniform, wearing a LCSD badge, and carrying on his gun belt a Glock .40 caliber gun, two sets of handcuffs, and two handgun magazines.

         That same day, Zander's husband called county dispatch to report a domestic disturbance at his residence on Georgia Street. Dispatch did not initially send Orlich to the call, but Orlich indicated that he would go on the call. Orlich was driving his LCSD-issued police vehicle. Orlich called dispatch to obtain details regarding the divorce proceedings between Zander and her husband. Zander's husband had previously told Orlich that Zander was a “lying whore” and a “drug addict.” Some time after his arrival at the scene, Orlich told Zander that she must leave the Georgia Street home and go to her other house on White Oak Avenue or go to the Lake County Jail. Orlich testified that this was done in order to give Zander and her husband a cool-down period. Zander told Orlich that she could not go to the White Oak Avenue house because the furnace and electric panel had been dismantled.

         Officer Michael Miller was also at the scene and was the supervising officer. Miller described Zander as upset, flustered, and talking fast. Miller did not recall, nor did his narrative report indicate, any reason why Zander could not drive her own vehicle to the White Oak Avenue house. Zander and her husband both testified that the officers said that Zander was not in a condition to drive.

         Orlich testified that he received permission from Officer Miller to take Zander to the White Oak Avenue house and to perform work on the furnace and electrical panel. Officer Miller testified that he gave Orlich permission to transport Zander to the White Oak Avenue house but that he did not discuss or give permission for Orlich to perform any work inside the White Oak Avenue house.

         After arriving at the White Oak Avenue house, Orlich radioed dispatch and indicated that he was available for calls. Orlich entered the White Oak Avenue house. Orlich and Zander went to the basement, and Orlich turned on the electricity and water heater. Orlich also looked at the furnace but was unable to fix it. Zander testified that Orlich told Zander she was allowed to return to the Georgia Street house at 2:30 p.m. Zander also testified that Orlich left the house, and Zander closed the house door.

         Zander's description of the alleged sexual encounter is as follows. Zander entered the master bathroom. About ten or fifteen minutes after Orlich left the house, Zander exited the bathroom and found Orlich standing naked with an erection, holding a pair of white lace underwear. His uniform and gun belt were in the room. Zander was in shock and “was like, Oh, my God. Please don't even tell me what I think is about to happen is going to happen.” (Zander Dep. 63:8-10, ECF No. 71-3). Orlich grabbed Zander by the arms, threw her down on the bed, got on top of her, and lifted her shirt. Orlich put his penis between her breasts and screamed “suck my balls.” Id. at 63:2-3. Orlich pushed Zander's head up so it was closer to his genitals and put his testicles in Zander's mouth. Zander asked Orlich not to rape her. Orlich ejaculated on Zander. After Orlich ejaculated, he got up to get his ...

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