United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
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
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.
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.
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.
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
filed a separate Motion for Summary Judgment on December 28,
2016. That motion remains pending.
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).
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).
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).
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.
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.
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.
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.
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.
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.
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.
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 ...