United States District Court, N.D. Indiana, Fort Wayne Division
DR. TONEY FORD, SR., Plaintiff,
DEREK SESSOMS, et al., Defendants.
OPINION AND ORDER
P. Simon, Judge
September 23, 2013, Dr. Toney Ford, Sr. had an unhappy
encounter with Marion, Indiana police officer Derek Sessoms.
On October 14, 2014, Ford filed a broad lawsuit about the
encounter, naming defendants including Marion's mayor,
members of the Marion City Council, and the local newspaper
editor, and alleging that his arrest was the result of racial
profiling without cause. By now, only the claim against
Officer Sessoms remains. Ford alleges that his arrest was
racially motivated and in violation of his Equal Protection
rights. The case has finally progressed to the summary
judgment stage, at which the parties must put their
evidentiary cards on the table to see if a trial is required.
Both Ford and Sessoms have filed motions for summary
judgment. Ford's motion fails because he lacks evidence
to support his claim that Sessoms' conduct was racially
motivated. Sessoms' motion, by contrast, succeeds because
he supports his story with evidence and Ford has no evidence
to contradict it.
remaining Equal Protection claims concern Sessoms'
alleged harassment of Ford, by the manner in which Sessoms
followed the car Ford drove, and by Sessoms' arrest of
Ford. “Racial profiling, or selective enforcement of
the law, is a violation of the Equal Protection
Clause.” Sow v. Fortville Police Dep't.,
636 F.3d 293, 303 (7th Cir. 2011), citing
Chavez v. Illinois State Police, 251 F.3d 612, 635
(7th Cir. 2001). “To show a violation of the
Equal Protection Clause, plaintiffs must prove that the
defendants' actions had a discriminatory effect and were
motivated by a discriminatory purpose.”
Chavez, 251 F.3d at 635-36. The discriminatory
effect prong requires Ford to demonstrate that he is a member
of a protected class, that he is otherwise similarly situated
to members of the unprotected class, and that he was treated
differently from members of the unprotected class.
Id. at 636. To show discriminatory purpose
“‘implies more than...intent as an awareness of
consequences. It implies that the decisionmaker...selected or
reaffirmed a particular course of action at least in part
“because of”...its adverse effects upon an
identifiable group.'” McCleskey v. Kemp,
481 U.S. 279, 298 (1987) (quoting Pers. Adm'r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979). To survive
summary judgment, Ford is “required to provide evidence
that [Sessoms] was ‘motivated by a discriminatory
purpose.'” Sow, 636 F.3d at 303, quoting
Chavez, 251 F.3d at 635-36.
summary judgment context, Rule 56(c)(1)(A) requires a party
who is “asserting that a fact cannot be or is genuinely
disputed” to “support the assertion by citing to
particular parts of materials in the record...or showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” In
considering the parties' compliance with these
requirements, I “need consider only the cited
materials, ” and am not required to comb the record for
evidence not specifically cited by the parties. Rule
summary judgment briefing fails to set forth material facts
supported by citations to evidence of record, and freely
mixes factual assertions with argument and speculation. He
makes ridiculous claims of the existence of “compelling
and overwhelming” evidence of a pattern of race-based
harassment, when he has adduced no such evidence, much less
evidence that warrants his dramatic adjectives. [DE 109 at
7.] The only evidence Ford has submitted in connection with
the cross-motions for summary judgment are exhibits to
“Plaintiff's Addendum on Damages Pursuant to
F.R.C.P. 9(g)” [DE 110], filed with his motion for
summary judgment. As the title suggests, this document
presents Ford's statement and calculation of his damages,
supported by exhibits relating to job opportunities and his
work as a speaker and professor. Ford also cites allegations
in his verified complaint. “[A] verified complaint is
not just a pleading; it is also the equivalent of an
affidavit for purposes of summary judgment, because it
‘contains factual allegations that if included in an
affidavit or deposition would be considered evidence, and not
merely assertion.'” Beal v. Beller, 847
F.3d 897, 901 (7th Cir. 2017), quoting Ford v.
Wilson, 90 F.3d 245, 246 (7th Cir. 1996).
complaint alleges that after leaving work on September 23,
Ford noticed a “strange white car” following him.
[DE 1 at 5.] Attempting to evade the car because it
“closely trail[ed] Dr. Ford's vehicle, ” Ford
chose to drive between the curb and a car stopped at an
intersection, ultimately hitting a stop sign. [Id.
at 6.] Ford “exited the vehicle and left on
foot.” [Id.] These basic facts about what
occurred are not disputed by Sessoms. Among the facts the
complaint omits but are now undisputed is that Ford
sideswiped the car that was stopped at the intersection and
struck both a fire hydrant and a stop sign. This led to
Ford's conviction via his plea of guilty to 2
misdemeanors arising out of the incident - charges of
resisting law enforcement and failure to stop at the scene of
an accident resulting in damage to an attended vehicle.
support of his version of the story, Officer Sessoms offers
deposition testimony from himself and Ford and the driver of
the sideswiped car, as well as police reports. Here are the
relevant facts asserted by defendant Sessoms and supported by
his evidence. On the afternoon of September 23, Sessoms was
on patrol in his squad car when he saw an individual named
Anthony Clark in an alleyway. Clark was a person known to
Sessoms, and Sessoms believed that a warrant for Clark's
arrest was outstanding. Sessoms radioed dispatch to confirm
the existence of the warrant, and saw Clark turn and run
through the alley. Sessoms circled the block and saw a black
Mercury Sable which he associated with Anthony Clark's
gang. When Sessoms was within sight of the Sable, its driver
pulled into a parking lot and stopped. Sessoms believed this
behavior was likely intended to avoid a traffic stop.
again circled the block to approach the vehicle but by the
time he returned, the Sable had exited the parking lot.
Sessoms followed the Sable as it accelerated to speeds above
the posted limit, and Sessoms activated his emergency lights.
As the Sable approached the intersection at 5th
and Western, it attempted to drive between the curb and a car
stopped at the intersection. The Sable sideswiped the other
car (driven by deponent Carolyn Ann Hiatt), and struck a stop
sign and fire hydrant. Plaintiff Ford, who had been driving
the Sable, exited the car and fled on foot. Sessoms pursued
Ford on foot, caught up to him in a nearby parking lot, and
placed him under arrest.
attempts to create genuine disputes about several facts
asserted (and supported) by Sessoms' evidence. Ford
argues that there is no evidence to “verify” that
Sessoms contacted dispatch about a warrant for Anthony Clark.
[DE 115 at 4.] But there is such evidence-Sessoms testified
to the fact in his deposition [DE 113-1 at 7 (internal p. 13,
RR. 5-10)], and it is reflected in Sessoms' narrative in
the police report, which also reflects his initial radio
report that he might have spotted Clark [DE 113-2 at 1-2].
Ford's notion of the necessity of corroboration is
misplaced. Rule 56(c)(1)(A) offers three options for
demonstrating that the fact to which Sessoms testifies is
genuinely disputed. The first is to cite to particular
evidentiary material, but Ford offers no evidence to
contradict Sessoms on this point. The other options are to
show that Ford's cited evidence doesn't establish the
absence of a genuine dispute or that it is inadmissible
evidence, neither of which Ford is able to do. In any event,
whether or not Sessoms confirmed the existence of a warrant
for Clark is not material to the summary judgment analysis.
contends that Sessoms was not driving a marked police car.
For this proposition Ford cites a portion of his deposition
that has not been filed with the court. Sessoms' own
testimony that he was driving a marked police car is
supported by the testimony of Ms. Hiatt. [DE 113-1 at 24
(internal p.81, RR. 5-13); DE 113-4 at 7 (internal p.16,, RR.
1-12).] Ultimately, disputed or not, whether Sessoms was in a
marked police car is not material to Ford's claim that
Sessoms was motivated by Ford's race to tail him and
arrest him after he left the scene of the accident with Ms.
Hiatt's car, the stop sign and the fire hydrant.
raises a question about the registration of the car he was
driving, as though to cast doubt on Sessoms' claim that
he believed it belonged to someone associated with Anthony
Clark. The police reports reflect two different license
numbers for the black Sable, and two different owners, one of
whom is the woman Sessoms believes is associated with Anthony
Clark. No matter what the confused state of the actual
ownership of the car, that muddle does not impact
Sessoms' claim that he believed the car was associated
with Anthony Clark, whom he wished to pursue at that time
based on the outstanding warrant. Ford also takes issue with
the reasonableness of Sessoms' behavior in following the
black car, specifically the route he drove to maintain
proximity to the car. This argument similarly does not bear
upon Sessoms' motive in following the car, and does not
create a triable dispute of fact that Sessoms was motivated
by the driver's race.
Ford questions whether Sessoms activated his siren or lights
prior to the accident, suggesting that without these signals,
Ford had no reason to respond to Sessoms as a police officer.
But Ford pled guilty to resisting law enforcement. In any
event, the issue is neither here nor there-Ford does not
demonstrate that whether or not Sessoms attempted to pull